Indira Banerjee, J. - (1.) This appeal filed by National Insurance Company Limited is against the judgment and award dated 17th August, 2013 passed by the Motor Accident Case Tribunal, 4th Fast Track Court, at Alipore in Motor Accident Claim Case No. 102 of 2012 being an application for compensation under Sec. 166 of the Motor Vehicles Act, 1988 filed by the respondent No. 1, Shri Sandip Routh @ Rahul Routh, hereinafter referred to as the respondent claimant, claiming compensation for his permanent disability by reason of an accident involving a Maruti Van bearing registration No. WB42N 8895 owned by one Shyamal Saha, being the respondent No. 2, and covered by a policy of insurance issued by the appellant, the National Insurance Co. Ltd., hereinafter referred to as the appellant insurer. It appears that an auto rickshaw in which the claimant respondent was travelling, was hit by the said Maruti Van which was being driven in high speed in a rash and negligent manner. The accident resulted in permanent disability of the claimant respondent, to the extent of 80% as per medical opinion.
(2.) The claim application was contested by the appellant insurer by filing a written statement. The defence to the claim is summarized hereinbelow in a nutshell: - - "i) Claim was not legally maintainable in its existing form. ii) Claimant had not disclosed the number of the auto rickshaw or the name of its owner or other particulars including whether the auto was insured or not. iii) Claim case was bad for non -joinder of necessary parties being the owner and insurer of the auto rickshaw. iv) In the absence of the owner and the insurer of the auto rickshaw, the question of apportionment of compensation could not be determined. v) Claim petition did not disclose particulars of how the accident causing injury of the respondent claimant took place." All the material, averments and/or allegations in the claim petition were denied and/or not admitted and the claimant respondent was put to proof of the same. There is not a whisper of why the claim application was not maintainable in the form in which the same had been made. Since the claimant respondent claimed that the accident had been caused due to the fault of the Maruti Van insured by the appellant insurer, which was being driven recklessly, in high speed and compensation claimed against the owner insurer of the said Maruti Van. The omission to mention the number of the auto rickshaw or the name of its owner was inconsequential. It was immaterial whether the auto rickshaw was insured at all. In any case the owner and the insurer of the auto rickshaw were neither necessary nor proper parties, in the absence of any claim against them. Furthermore, it is well settled that in case of joint tort, compensation may be claimed from either tort -feasor as held by the Supreme Court in Khenyei v/s. New India Assurance Co. Ltd. and Ors. reported in : 2015 ACJ 1441. When two or more motor vehicles are responsible for an accident, compensation may be claimed from owner and/or insurer of either vehicle. By the judgment and award under appeal the learned Tribunal awarded the respondent claimant compensation of Rs. 24,13,870/ - along with simple interest at the rate of 6 percent per annum. The claimant respondent himself gave evidence in the learned Tribunal. He stated that the vehicle in question which was being driven in a rash and negligent manner, hit the auto rickshaw while the claimant respondent was paying the fare after getting down from the auto rickshaw. One Ashis Dey, brother -in -law of the victim also corroborated that he had got out of the auto rickshaw and was standing on the footpath and his brother -in -law, the victim of the accident, was paying the fare of the auto rickshaw when the Maruti Van hit the auto rickshaw. As a result of the accident the claimant respondent suffered bone fracture of left femur, head injury and injuries all over his person, as a result of which he became permanently disabled. The claimant respondent was apparently treated in different hospitals including Chinsurah Hospital, the renowned S.S.K.M. Hospital, a premier Government hospital, Mohan Clinic, A.M.R.I. Hospital and VYDEHI Hospital at Bangalore. The witness No. 3, the representative of Mohan Clinic, the Witness No. 4, an executive -in -charge of the medical records of A.M.R.I. Hospital Dhakuria and the Witness No. 5, a clerk attached with S.S.K.M. Hospital, proved that the appellant had been treated in those hospitals. Original documents of VYDEHI Hospital at Bangalore were before the learned Tribunal as also original bills of the other hospitals and clinics. The Witness No. 5, Rajib Das, an employee of Emami Frank Ross proved the medicine bills. The Maruti Van was apparently ceased along with documents including insurance certificate policy, tax token and the driving licence of its driver valid till 10th December, 2012. The driver obviously had a valid driving licence at the time of the accident and the Maruti Van was insured. The learned Tribunal on consideration of the evidence on record found that the accident had taken place due to the fault and negligence of the Maruti Van insured by the appellant insurer. The learned Tribunal also found on the basis of medical evidence that the claimant respondent had become permanently disabled to the extent of 80% as a result of the accident.
(3.) The involvement of the Maruti Van in the accident is not disputed. It is contended that the auto rickshaw was also involved and there was contributory negligence on the part of the auto rickshaw. The learned Tribunal found that the claimant/respondent had incurred medical expenses of Rs. 5,14,347.27/ - and Rs. 1,99,816.29/ -for his admission and treatment at AMRI Hospital, expenditure to the tune of Rs. 31,500/ - for his treatment at Mohan Clinic, expenditure of Rs. 8,561/ - for his treatment S.S.K.M Hospital and Rs. 1,00,355/ - for his treatment at VYDEHI Hospital, Bangalore from 13th February, 2012 to 27th July, 2012. The documents of VYDEHI were not proved by the claimant/respondent but the original document had been sent by the hospital to the Tribunal. The learned Tribunal found that Rs. 3,895/ -had been incurred for purchasing expenses. The learned Tribunal found that the medical expenditure incurred by the claimant/respondent amounted to Rs. 8,58,474.56/ - [Rs.5,14,347.27/ - (AMRI) plus Rs. 1,99,816.29 (AMRI), Rs. 31,500/ - (Mohan Clinic), Rs. 3,895/ - (medicines), Rs. 8,561/ - (S.S.K.M) plus Rs. 1,00,355/ - (VYDEHI Hospital, Bangalore)]. Further, in consideration of the evidence, the learned Tribunal found that the claimant respondent was an employee of Bhabani Developers Ltd. earning salary of Rs. 9,500/ - per month. Applying the multiplier 17 applicable to the age group of 30 -35 as per the Second Schedule the learned Tribunal found that 80% (considering the percentage of disablement) would come to Rs. 15,50,400/ -. In addition, the claimant/respondent was awarded Rs. 5,000/ - for the pain and suffering. The claimant/respondent was awarded total compensation of Rs. 24,13,874/ - along with Simple Interest at 6% per annum. The Tribunal deciding a claim case is obliged to award compensation which is just and fair. Just compensation might be awarded even if the amount awarded exceeds the amount claimed. This proposition finds support from the judgment of the Supreme Court in Oriental Insurance Co. Ltd. v/s. Mohd. Nasir and Anr. reported in : 2009 ACJ 2742and Nagappa v/s. Gurudayal Singh reported in : 2003 ACJ 12 (SC). In deciding an application for compensation under Sec. 166, the learned Tribunal has an inquisitorial role. The Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an inquiry into claim' for determining the 'just compensation' as held in Raj Kumar v/s. Ajay Kumar and Anr. reported in : 2011 ACJ 1. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can access the 'just compensation'. It is obliged to award just and proper compensation irrespective of what has been claimed.;