NEW INDIA ASSURANCE CO LTD Vs. RAJ KUMAR

JUDGEMENT

(1.) THIS statutory appeal under section 173 of the Motor Vehicles Act would collapse as the grounds available to the appellant insurance company for filing an appeal are delineated in section 149 (2) of the Motor Vehicles Act of 1988, (hereinafter referred as 'the Act of 1988'). It is settled position in law that appeal can be filed only when statute authorises filing of such an appeal and can be filed only on the ground which the statute permits. The present appeal is not filed on the grounds mentioned in section 149 (2) of the Act of 1988. The appeal on the face of it being incompetent would suffer dismissal. However, learned counsel for the appellant referred to certain pleadings and evidence to show to the court that Raj Kumar, respondent No. 1, has suffered injuries on account of accident not as a pillion rider, but was driving the scooter himself. The learned counsel for the appellant has referred to objections as also evidence brought on record of M.A.C.T., Jammu. THIS appeal on the face of it, is not maintainable. However, this court deemed it appropriate to hear this appeal on the presumption that perhaps the award was obtained by practising fraud on Tribunal.

(2.) IT is settled position in law that any order or decree obtained by practising fraud on court, is denuded of its legal effect. IT was for this reason that this appeal was heard on the plea raised by learned counsel for the appellant. Before addressing the said plea the facts of the case are briefly summarized as under: One Raj Kumar s/o Shakar Ram r/o Reshamghar Colony, Jammu on 20.2.19891 was travelling on a scooter as a pillion! rider bearing registration No. JKU 2685.: The scooter was being driven by respondent No. 2 as per the pleadings of the claim petition. The scooter met with an accident when it reached near Purkhu on Akhnoor Road which resulted inflicting of grave injuries on Raj Kumar, respondent No. 1. Respondent No. 1 remained unconscious for about one and half months and regained consciousness in All India Institute of Medical Sciences, New Delhi. The injuries which were sustained were so grave that he was incapacitated to perform any normal functions. The further case pleaded is that the respondent No. 1 was being looked after by his father but after his death he could not fall back upon for his assistance on anybody or for getting his medical treatment, which ultimately constrained him to file the claim petition. The case of the claimant was thus that because of rash and negligent driving of the driver Shashi Kumar, respondent No. 3, he had suffered grave injuries. Respondent Nos. 2 and 3 as also the appellant filed their objections before the M.A.C.T., Jammu. Respondent No. 2 admitted to be owner of the scooter and respondent No. 3 also admitted that he was driving the scooter on the fateful day when they met with an accident. The appellant filed objections to the maintainability of the claim petition and raised a specific objection that it was the respondent No. 1 who was driving scooter negligently, rashly and carelessly which caused the accident and thus he suffered the injuries because of his own act. Reference is also made to the F.I.R. at para 3 under the head of preliminary objections, where it is stated that there was no mention of the scooter in question either in the F.I.R. or in the final report of the police. IT is on this ground the claim petition is resisted by the appellant.

(3.) DR. Deedar Singh, PW, has deposed that respondent No. 1 was treated as a case of post-traumatic spastic hemiplegia. The relevant part of the para referred to is reproduced as under: