NATIONAL INSURANCE CO LTD Vs. HUKUMCHAND

JUDGEMENT

(1.) This appeal has been filed by Insurance Company. under Section 173 of the Motor Vehicles Act, against the award dated 2-12-2004, passed in Claim Case No. 42/2004 by the 4th Additional Motor Accident Claims Tribunal (Fast Track), Khargone, by which the claimant has been awarded a total sum of Rs. 11.65.300/- for the injuries sustained by him in a motor accident.

(2.) On 9-4-2003. the respondent - Hukumchand was proceeding on his motorcycle. As he reached Kasravad Road, near RTO Office, respondent No.2 approached at an alarming speed driving a Tractor which collided with the motorcycle of the applicant. The applicant Hukumchand sustained grievous injuries and was in coma for a period of one month. Even on the date of the filing of the application for claim, the respondent -claimant was confined to bed and was unable to attend to his daily routine. It was in this context that a sum of Rs. 21,85,000/- was claimed. The Tribunal, however, awarded a sum of Rs. 11,65,300/-, The Insurance Company has filed this appeal on the limited question as to whether without appointment of a guardian under the provisions of Rule 233 of the Madhya Pradesh Motor Vehicle Rules, 1994 (for short, the Rules'), the claim by Hukumchand was maintainable Learned counsel for the appellant has submitted that since procedure is regulated by the Motor Vehicles Act and the Rules in respect of the matters pertaining to the Claims Tribunal, it was mandatory for the wife of the claimant to have first obtained permission under Rule 233 of the Rules and, therefore, in the absence of appointment of the wife of the respondent as representative on behalf of the claimant, the proceedings were vitiated. Learned counsel for the respondent, per contra, submits that since Order 32. Rule 1 of the Code of Civil Procedure, permits suits by or against minors or persons of unsound mind, by the next friend, and the wife of the claimant was representing the claimant, she was apparently the next friend in accordance with the provisions contained in Or. 32 of the CPC.

(3.) The core question that arises for consideration is as to whether the claim filed before the Tribunal was competent in the absence of the permission under rule .233 of the Rules. While the learned counsel for the appellant contends that in view of the specific provision contained in the Madhya Pradesh Motor Vehicles Rules. 1994. namely. Rule 233. the provisions of the Code of Civil Procedure, would not apply, learned counsel for the respondent submits that since under Or. 32 of the CPC, a person under disability, as enumerated therein, can sue through the next friend. Rule 233 of the Rules, will have no application. Even otherwise, according to the counsel, the said Rules become operative in totally a different situation.