NATIONAL INSURANCE COMPANY LIMITED Vs. CHHABIRANI KAR

JUDGEMENT

(1.) This application at the behest of the petitioner/Insurance Company throws a challenge to the order dated 26th February, 2007 in Money Execution Case No. 1 of 2005 rejecting a prayer for review of the award dated 31st August, 2004 passed by the Motor Accident Claims Tribunal, Fast Track, 2nd Court, Tamluk, Purba Medinipur in M.A.C. Case No. 2 of 2004 116/1999. The case of the petitioner/Insurance Company is that while disposing of the application under Section 166 of the Motor Vehicles Act, 1988, the Tribunal passed award directing that the respondents/claimants are entitled to get compensation of Rs. 4,000.00 from the petitioner/Insurance Company. It is the contention of the learned lawyer appearing for the petitioner that in the said award the Tribunal has, inter alia, held that the accident occurred due to rash and negligent driving of the driver of the said mini truck being No. WB-33/0881, resulting in the death of the victim Madhusudan Kar. In spite of recording such finding, the Tribunal erroneously in its award directed the petitioner/Insurance Company to pay compensation under Section 166 of Motor Vehicles Act, 1988 although the petitioner is not the insurer of the said mini truck. Learned lawyer submitted that an award directing payment of compensation under Section 166 of the Motor Vehicles Act, 1988, can be imposed on the insurer of the offending vehicle which had caused the accident and not upon the insurer of the other vehicle.

(2.) He has further argued that since the petitioner/Insurance Company is not the insurer of the offending mini truck WB-33/0881 but is the insurer of the other vehicle namely, Bus No. WB- 29/1676 which was involved in the accident, the petitioner cannot be made liable to pay such compensation in the light of the law declared by the Supreme Court in the case of Oriental Insurance Company Ltd. v. Premlata Shukla and Others, 2007 3 ACC 54. In the aforesaid case the Supreme Court has, inter alia, held that the Tribunal must come to a finding as to the driver of which vehicle indulged in rash and negligent driving and the compensation under 166 of the Motor Vehicles Act, 1988 would be payable by the insurer of the said offending vehicle. Relying on such decision, the learned lawyer has argued that the award of the Tribunal suffered from an error apparent on the face of the record and, the same was therefore amenable to review.

(3.) With regard to the issue as to whether the Tribunal had the power to review its own order or not, the learned lawyer referred to Section 169 (2) of the Motor Vehicles Act, 1988 read with Rule 342 of West Bengal Motor Vehicles Rules, 1989. According to him, although the power of review has not been specifically conferred on the Tribunal, a conjoint reading of the said provisions would show that the Tribunal is vested with certain powers of a Civil Court, and therefore, by necessary implication would have the power of review.