Sabhajeet Yadav, J. - (1.) BY this petition, the petitioner has sought relief of writ of certiorari for quashing the order dated 07.02.2009 (Annexure-7) of the writ petition) passed by the Motor Accident Claims Tribunal, Aligarh (hereinafter referred to as 'the Claims Tribunal) in MACP No.76 of 2007 Anokhe Lal and others Vs. Anwar Khan and others, whereby application of the petitioner under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') for contesting the claim petition on merits has been rejected by the claims tribunal.
(2.) THE brief facts of the case are that an accident took place on 29.6.2006. It is alleged that in the said accident Omwati Devi was hit by Tata 407 Truck No.U.P. 81/D-2522 owned by respondent no.7, as a result of which she died. THE claimants/respondents no.1 to 6 filed a claim petition on 12.2.2007 under Sections 140 and 166 of the Act being MACP No.76 of 2007 before the Claims Tribunal claiming compensation of Rs.6,37,000/- for the death of deceased Omwati Devi aged about 45 years. THE claimant-respondent no.1 is husband and the claimants-respondents no.2 to 6 are sons of deceased Omwati Devi. THE claim petition was contested by owner of offending motor vehicle by filing his written statement on 11.1.2008 before the Claims Tribunal, which is on record as Annexure-2 of the writ petition. THE driver of the truck was also made a party in the claim petition but he did not contest the claim petition nor did he file his written statement. THE aforesaid claim petition was also contested by the petitioner/insurer/Insurance Company by filing its written statement on 28.5.2008. A true copy of written statement filed by the Insurance Company/petitioner on 28.05.2008 is on record as Annexure-3 of the writ petition. On 19.12.2008 issues were framed by the Claims Tribunal in the said claim petition. Thereafter the claimants examined Dharmendra Singh S/o Anokhey Lal as PW-1 and Manveer S/o Surajpal as PW-2 in order to prove the averments made in the claim petition. These witnesses were not cross examined by the owner of the truck. But the petitioner Insurance Company cross examined them. It is stated that the owner of the truck was not contesting the claim petition properly as he had neither examined himself as a witness nor he had produced the driver of the truck as a witness before the Tribunal. The owner had merely filed his written statement and has not cross examined the witnesses PW-1 and PW-2 produced by the claimants. The owner has failed to lead any evidence from his side and as such there was no contest by the owner of the truck. Since the owner of the truck was not contesting the claim petition effectively, therefore, the petitioner/Insurance Company moved an application under Section 170 of the Act seeking permission of the Tribunal to contest the case on all the grounds which are available to the insurer as well as to the owner/insured of the offending motor vehicle. A true copy of the application under Section 170 of the Act is on record as Annexure-6 of the writ petition. The Claims Tribunal vide order dated 07.02.2009 has illegally rejected the said application of the petitioner merely on the ground that the owner of the offending motor vehicle has filed written statement and as such contesting the claim petition without considering both the facts and law, hence this petition. Heard Sri Amit Manohar for the petitioner.
(3.) SINCE this petition is filed by the Insurance Company against the rejection of its application under Section 170 of the Act, wherein claimants and owner as well as driver of the offending motor vehicle have been arrayed as respondents. Having regards to the facts and circumstances of the case, keeping the petition pending for the purpose of hearing of the claimants and owner of the offending motor vehicle would prolong the proceeding before the Claims Tribunal and would delay the disposal of claim petition, which would ultimately adversely affect the interest of claimants and the respondents, owner/insured and driver of the motor vehicle have no vested right to be heard in opposition of the said application under Section 170 of the Act, therefore, issuing notices and providing opportunity of hearing to them would be useless formality, accordingly, I need not to hear them for disposal of instant writ petition. While placing reliance upon a decision of Kerla High Court rendered in Oriental Insurance Company Ltd. Vs. Narayanan Nair and others 2007 (1) Transport and Accident Cases 233 (Kerala), learned counsel for the petitioner has submitted that the expression "contest" used under Section 170 of the Act does not merely mean filing of written statement or examining a witness. A contest must be genuine contest, challenge or opposition and not a merely eyewash and a Division Bench of this Court in a decision rendered in National Insurance Company Ltd. Vs. Jairani and others 2009 (1) ADJ 209 (DB), has held that the contest of claim on merits by the owner must be such as if he is trying to defeat the claim and is making every possible effort to win the case. The contest should be real and merely filing of written statement or leading some oral or documentary evidence or cross examination of some witnesses would not be sufficient. The Tribunal must come to a definite conclusion that the owner of the vehicle is making every possible effort to succeed in getting the claim petition dismissed. In absence of finding by Tribunal about the genuineness of contest by owner supported by cogent reasons the application under Section 170 of the Act filed by the Insurance Company cannot be rejected. Further the petitioner had cross-examined the witnesses produced by the claimants and as such the petitioner has contested the case on merits i.e. on the grounds which are available to the owner as well as to the Insurance Company and if the permission under Section 170 of the Act is not granted, then in appeal the petitioner cannot challenge the award on the grounds of negligence and the quantum of compensation. But the Tribunal without considering this aspect of the matter and without recording any cogent reason therefor has passed the impugned order rejecting the said application of the petitioner.;