SUSHIL KUMAR Vs. LAXMAN

JUDGEMENT

(1.) THE appellant Sushil Kumar has preferred this appeal Under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against the award dated 14-2-79 passed in Claim Case No. 41 of 1977 passed by the Motor Accident Claims Tribunal, Ujjain, whereby an amount of Rs. 12,500/- was awarded to respondent No. 1 as compensation with interest at the rate of 6% per annum from the date of the petition, i.e. 31-7-76 till the date of payment.

(2.) THE claimant-respondent No. 1 is an employee of Vinld Mills, when he was going to his residence from the Vinld Mills on 3-2-76 at about 3.45 P.M., the appellant, who was driving the scooter MP1 753, rashly, negligently and with excessive speed, dashed the claimant-respondent No. 1 from behind, as a result of which the claimant fell down and sustained fracture of the femur bone. The claimant filed an application Under Section 110-A of the Act impleading the appellant and one Ashok Kumar, who is paid to have been the owner of the offending vehicle. The scooter was not insured. Before the Tribunal, it was not found proved that respondent No. 2 Ashok Kumar, was the owner of the said vehicle. The appellant, who was in control and possession of the vehicle and was driving the vehicle at the relevant time, did not, in the written statement, disclose about the owner of the said scooter and the insurer thereof. No plea was raised in the written statement about the application not being made in form 'C.A.A.' prescribed Under Rule 277 of the Madhya Pradesh Motor Vehicle Rules, 1974 (hereinafter referred to as 'the Rules'). There was neither any plea nor any issue in relation to non joinder of the owner and the insurer as parties to the application. The only issue raised was whether the non-applicant No. 1, i.e, respondent No. 2 was the owner of the scooter at the relevant time or not.

(3.) LEARNED Counsel, Shri Sujan Jain, appearing for the appellant, urged only two grounds before this Court. His first submission was that the provisions in relation to the claiming of compensation in Section 110-A and 110-F of the Act have created a new jurisdiction and a new procedure, new forms and new remedies. The remedy under Torts in relation to motor accident instead of ordinary civil Courts has been given to the Claims Tribunal. Hence, the procedure, form or remedies provided in the statute must be strictly followed. He submitted that as the Insurance Company and the owner of the vehicle were not impleaded as parties to the application, no award could have been passed against the appellant, who was driving the scooter at the relevant time. In support of this the learned Counsel relied on the decision of this Court in the case of M.P.S.R.T C. Jabalpur v. Jahiram and Anr. 1969 ACJ 3 and another case of the Orissa High Court in New India Assurance Company Limited v. Pramila Sahoo and Ors. 1984 ACJ 371. It would be proper to mention here that the appeal is pending for its disposal since 30-4-79. The learned Counsel for the appellant could not place the material to show, even now, that a particular person and particular company was the owner and the insurer of the vehicle, at the relevant time. On merits, the learned Counsel could not challenge the finding on rash and negligent act, but submitted that the amount of compensation awarded in the case was on the higher side. He submitted that the amount of compensation could not have been more than Rs. 5,000/-. The learned Counsel relied upon the decision of the Punjab and Haryana High Court in Subhash Chander and Ors. v. State of Haryana 1975 ACJ 164 and Anr. case of the Andhra Pradesh High Court in Hemlata Devi v. Sk. Lokman and Ors. 1971 ACJ 63. Of these two cases, the latter case related to the compensation awarded for the death and the former case of Subhash Chandra relates to the fracture in nasal bone wherein the award was of Rs. 8,300/-, which was reduced in appeal to Rs. 2,000/-. He submits that the award of Rs. 12,500/- is on higher side, if this Court does not dismiss the application or remand the same with a direction to join the owner and the driver as parties to the claim application and to decide the matter afresh, the compensation atleast be reduced.