Mahesh Bhagwati - (1.) CHALLENGE in this appeal is to the judgment and award dated 18th July, 2007 rendered by Motor Accident Claims Tribunal, Jaipur City, Jaipur, whereby the learned Tribunal held the appellant entitled to Rs. 1,61,500/- from the non-claimant-respondents, but decreed only an amount of Rs. 80,800/- in his favour and against the respondents.
(2.) BACKGROUND facts in a nutshell are thus: "On 28th December, 2003, appellant- claimant Amit Kumar and Jitendra Kumar Jangid @ Guddu were going by a motor-cycle No. RJ 14-33M-2035 from Jaipur to Ajmer. Jitendra Kumar Jangid was riding the motor-cycle and the appellant Amit Kumar was pillion rider. The motor-cycle was being driven with controlled speed and in right direction. It is averred that at about 12.30 p.m. when the motor cycle rider reached near Samman Hotel, one bus bearing registration No. RJ 14- IP-2092 owned by Rajasthan State Road Transport Corporation being driven by its driver rashly and negligently turned to wrong side and dashed against the motor-cycle resulting in the injuries to both rider and the pillion rider of the motor-cycle. The appellant filed a claim petition before the Tribunal, which held the contributory negligence of the motor-cycle rider and since the appellant did not implead the owner of the motor-cycle and its Insurance Company in the array of respondents, the learned Tribunal held the appellant entitled to claim only 50% of the amount under the award. The appellant felt aggrieved with this judgment, hence, this appeal." Heard learned Counsel for the parties and perused the impugned award including the relevant material available on record. The learned Counsel for the appellant canvassed that the finding of the learned Tribunal to this effect that the rider of the motor-cycle and its Insurance Company were not impleaded a party in the array to the respondents, they were entitled only to claim 50% of the amount under the award, was based on wrong premise. He further contended that it was an option to the appellant to exercise as to from whom he wanted to claim the amount of compensation. The appellant opted to claim the amount of compensation from the Rajasthan State Road Transport Corporation, hence, he did not think fit to implead the rider of the motor cycle a party. The finding of the learned Tribunal not being based on legal premises, deserves to be set-aside and the amount under the awa4rd needs to be modified. Learned Counsel for the respondents has fairly conceded that the finding of the learned Tribunal in this regard was-not correct and the appellant was entitled to claim 100% amount of compensation from the respondents. Having reflected over the submissions made at the bar and carefully scanned the relevant material as also the relevant provisions of M.V. Act, 1988, it is noticed that the learned Tribunal was not required to adjudicate as to who was negligent at the time of accident or whose liability in the accident was more and whose less and further as to whether there was any contributory negligence or composite negligence, but the learned Tribunal was required to concentrate only on one aspect and adjudicate as to whether the use of motor vehicle, in respect of accident involving injury to person or persons, was proved or not. Sub-section (1) of Section 165 of M.V. Act, 1988 envisages thus. "(1) A State Government may, by notification in the Official Gazette, contacted one or more Motor Accident Claims Tribunals (hereinafter in this chapter referred to as Claims Tribunal) for such areas as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation ? For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accident involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under Section 140 (and Section 163-A).
(3.) SECTION 165 of the Act nowhere contemplates that the Tribunal was to adjudicate the negligence of the driver of motor vehicle involved in an accident. On the contrary, the Tribunal was required to adjudicate upon claim for compensation in respect of accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Secondly, the appellant was also not required to implead the owner of the motorcycle or the Insurance Company with which the motor-cycle was insured, a party in the array of respondents. Legally it is not binding on the claimant to implied any Insurance Company a party in the claim petition. The Insurance Company can be made a party only when in the use of any vehicle, the Claims Tribunal is satisfied that: (a) There is collusion between the person making 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 that is not the case, the Insurance Company is not required to be made party in the claim petition. Even if the Insurance Company is not a party, the amount under award can be claimed from the Insurance Company as the Insurance company enters in the shoes of the insured, who is held liable to pay the compensation under the award. The finding arrived at by the learned Tribunal is not an accordance with the provisions of law. Albeit, the learned Tribunal having considered all the facts of the claim petition and the evidence emerging therein at length, has rightly held the claimant entitled to claim Rs. 1,61,500/- from the non- claimant-respondents but the direction that the respondent non-claimants shall be liable to indemnify 50% of the amount under the award, does not seem to be just, apt and legal, which deserves to be quashed. There shall be no order as to costs. ;