- (1.) DEVI Prasad Singh, J. Whether the Motor Accident Claim Tribunal has got power under the law to recall its final judgment or award, is the question involved in the present writ petition? One Kasim Ali s/o Salar Baksh @ Salaroo R/o Mohalla-Miradhan, Kasba-Daryabad, Post Office-Daryabad, District-Barabanki succumbed to injuries at about 10 a. m. on 30th of September, 1998 in an accident alleged to be caused by a truck No. UPHG-9095. The dependants of late Kasim Ali had filed a claim petition registered as M. A. C. No. 350/1998 in the Court of Vth Additional District Judge/motor Accident Claim Tribunal, Barabanki. The Tribunal had decided the controversy and granted compensation to the claimants, Smt. Khatoon and others by the award dated 11th of January, 2001. According to Smt. Alka Verma, learned Counsel for the petitioner, after delivery of the award, on 3rd of January, 2001, petitioner had come to know that the driver of the vehicle Sri Prem Narain was having a fake and forged driving licence. After almost 1 year, petitioner had filed an application for recall of the award dated 11th of January, 2001 on the ground that in view of the provisions contained in Section 149 (2) of the Motor Vehicles Act, 1988, petitioner is not entitled to pay the compensation. After hearing the learned Counsel for the parties, by the impugned order dated 5th of March, 2002, the Tribunal has rejected petitioner's application with the finding that the Insurance Company shall be responsible to pay the compensation to the 3rd party, even if the Driving licence was fake. It has been further held by the Tribunal that under the Motor Vehicles Act, 1988 (in short referred as an Act), the tribunal does not have got power to recall its judgment, order or award. It has been further held by the learned Tribunal that since the petitioner had not filed an appeal under Section 173 of the Act, a dilatory tactics has been adopted by moving application in question to prolong the payment of compensation.
(2.) LEARNED Counsel for the petitioner submits that since a fraud was committed and it was not in the knowledge of the petitioner relating to fake licence possessed by the driver of the vehicle, the Tribunal has got power to recall its award. LEARNED Counsel for the petitioner has relied upon the judgments reported in (2001) 4 Supreme Court Cases 342, New India Assurance Co. , Shimla v. Kamla & Ors. , with connected cases, 2000 (1) JCLR 828 (SC) : (2000) 3 SCC 581, United India Insurance Co. Ltd. v. Rajendra Singh & Ors. , with connected case and 2005 (1) JCLR 4 (SC) : 2005 (1) IAC 14 (SC), National Insurance Company Ltd. v. Chalia Bharathamma & Ors. On the other hand Sri Ravindra Pratap Singh, learned Counsel for the respondents No. 2 to 5 submits that the power to review or recall of the judgment, order or award is the statutory power and in the absence of any statutory provision contained in the Act, learned Tribunal has got no jurisdiction to recall its award. It has been further submitted by the learned Counsel for the respondents No. 2 to 5 that since the insurance company had entered into an agreement with the owner of the vehicle to pay compensation to the 3rd party, it shall always be incumbent on the insurance company to pay the compensation with option to recover the same from the owner or the driver of the vehicle in accordance to law, in case from some subsequent development, it borne out that petitioner-insurance company is not liable to pay the compensation. It has been further submitted by the learned Counsel for the respondents No. 3 to 5 that no fraud was committed by the claimants. Neither there is any evidence on record nor it has been pleaded even in the application for recall of the award that claimants have committed some fraud or concealed the material facts in collusion with the motor vehicle owner or its driver. Accordingly, the further submission of the learned Counsel for the respondents No. 2 to 5 is that in the absence of statutory provisions under the Act, recall application shall not be maintainable. Learned Counsel for the respondents No. 2 to 5 has relied upon the judgments reported in 2002 (1) JCLR 963 (All) : 2003 (1) TAC 551 (All.), Raj Kumari v. Motor Accidents Claims Tribunal, Jaunpur & Ors. , 2003 (1) TAC 492 (SC), Rajendra Kumar v. Rambhai & Ors. , 2000 (1) JCLR 828 (SC) : 2000 (2) TAC 613 (SC), United India Insurance Co. Ltd. v. Rajendra Singh, 2003 (2) TAC 26 (SC), Sadhana Lodh v. National Insurance Company, 2005 (23) LCD 835, Tauseem Ahmad v. New India Insurance Company, 2004 (22) LCD 40 (FB), Kamla Yadav v. Smt. Shushma Devi, 2003 (3) SCC 338, United India Insurance v. Lehru and 2004 (1) JCLR 469 (SC) : 2004 (2) AWC 1589 (SC), National Insurance Co. Ltd. v. Swaran Singh & Ors. Under sub-section (1) of Section 149 of the Motor Vehicles Act, 1988, it has been provided that it shall be the duty of the insurance company to satisfy the judgment or award against the person insured in respect of 3rd party. However, sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 contains certain exceptions under which the insurance company may not be held responsible to satisfy the award or judgment of the Motor Accidents Claims Tribunal. For convenience, sub-section (2) of Section 149 of the Motor Vehicles Act, 1988 is reproduced as under: "149. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is strayed thereon pending an appeal; and an insurer to whom notice of the bringing of such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (a) That there has been a breach of a specified condition of the policy, being one of the following conditions, namely: (i) a condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motorcycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. "
(3.) UNDER Section 168 of the Act, it has been provided that on receipt of an application for compensation made under Section 166, the Claims Tribunal has been authorized to determine the amount of compensation which may be payable to an aggrieved party while rendering the award. Section 168 of the Act further provides that it shall be the duty of the Claims Tribunal to specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle involved in the accident or by all or any of them as the case may be. Section 169 of the Act further lays down the procedure which is to be followed by the tribunal. For convenience, Section 169 of the Act is reproduced as under: "169. Procedure and powers of Claims Tribunals.- (1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974 ). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudication upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. " UNDER Section 170 of the Act, it has been made open to the Claims Tribunal to implead the insurer. For convenience, Section 170 of the Act is reproduced as under: "170. Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. " UNDER Section 173 of the Act, any person aggrieved by the award of Claims Tribunal may, within ninety days from the award, prefer an appeal to the High Court. Section 175 of the Act bars jurisdiction of Civil Courts. A plain reading of sub-section (2) of Section 149 of the Act shows that the insurance company shall not be liable to pay compensation in respect of the judgment or award unless the insurer has got notice to defend the action on various grounds including the situation where the vehicle was driven by a person without having any driving licence. Section 149 of the Act does not contemplate that insurer shall not be liable to pay the damages or compensation on the ground disclosed in sub-section (2) of Section 149 of the Act itself, in case the award is rendered after the service of notice. Once, the insurance company is served with a notice to defend itself and the award is rendered in accordance to law, then the ground enumerated in sub- section (2) of Section 149 of the Act does not seem to be available to the insurer to deny the payment in pursuance to the award. For any grievance, the option seems to be open to the insurer is to file an appeal under Section 173 of the Motor Vehicle Act or to adopt the other recourse provided by law.;