Jagjitsingh Vs. Shashikant Ramesh Tayde and Another - Court Judgment

Excerpt:
.....section 166 €“ award of compensation €“ liability to €“ in motor accident claim petition filed under section 166 of the act respondent no.1-claimant is held entitled to compensation by tribunal after adjusting amount already paid by appellant towards no-fault liability €“ owner of vehicle is before challenging decision of tribunal. court held €“ there is nothing on record to show that vehicle in question was insured with respondent no.2 €“ neither respondent no.1-claimant, nor appellant, owner of vehicle in question, have placed anything on record to show that vehicle was insured and such insurance was valid and subsisting on date of occurrence of accident €“ thus, owner was held liable for payment.....oral judgment: 1. in motor accident claim petition no.241 of 2001 filed under section 166 of the motor vehicles act, 1988, the respondent no.1-claimant is held entitled to compensation of rs.3,81,000/- along with interest at the rate of 9% per annum from the date of the petition, i.e. 10-9-2001, till its realization, after adjusting the amount already paid by the appellant towards no-fault liability. the owner of the vehicle is before this court challenging the decision of the tribunal. 2. the contentions of ms umale, the learned counsel appearing for the appellant, are that the appellant was not served with the notice of claim petition no.241 of 2001 and, therefore, he had no opportunity to contest the claim, that the earlier claim petition no.67 of 1993 filed by the respondent.....

Judgment:

Oral Judgment:

1. In Motor Accident Claim Petition No.241 of 2001 filed under Section 166 of the Motor Vehicles Act, 1988, the respondent No.1-claimant is held entitled to compensation of Rs.3,81,000/- along with interest at the rate of 9% per annum from the date of the petition, i.e. 10-9-2001, till its realization, after adjusting the amount already paid by the appellant towards no-fault liability. The owner of the vehicle is before this Court challenging the decision of the Tribunal.

2. The contentions of Ms Umale, the learned counsel appearing for the appellant, are that the appellant was not served with the notice of Claim Petition No.241 of 2001 and, therefore, he had no opportunity to contest the claim, that the earlier Claim Petition No.67 of 1993 filed by the respondent No.1-claimant was dismissed in default on 6-3-1995 and, therefore, the second Claim Petition No.241 of 2001 was not maintainable for the same relief, and that the vehicle was insured with the respondent No.2-National Insurance Company Ltd., which should have been held liable for payment of compensation.

3. The points for determination in the present appeal are as under:

Sr.No.	Points	Findings
1.	Whether the appellant, the owner of the vehicle, i.e. Truck bearing registration No.AP9 T/2175, was duly served with the notice of Claim Petition No.241 of 2001?	In the affirmative.
2.	Whether the second Claim Petition No.241 of 2001, was maintainable, particularly when the earlier Claim Petition No.67 of 1993 filed for the same relief, was dismissed in default on 6-3-1995?	In the affirmative.
3.	Whether the respondent No.2-National Insurance Company Ltd. can be held liable to pay the amount of compensation?	In the negative.

4. In the memo of appeal, a specific ground is raised that the address of the appellant mentioned in the cause-title of the claim petition was not correct. The appellant was residing at Hingoli, whereas the address shown was of Parbhani. The Tribunal has observed that though the appellant, who was the respondent No.1 in the claim petition, was served, he failed to appear in the matter. It is not in dispute that the address of the appellant was corrected on 1-8-2002 in Motor Accident Claim Petition No.241 of 2001. The appellant was shown to be the resident of Khurana Petrol Pump and Khurana Transport, Mondha Bazar, Hingoli, District Hingoli. The appellant does not dispute that he was the resident of this place. The correct address was supplied on 1-8-2002, on which the appellant was served, but he failed to appear. It cannot, therefore, be said that the appellant was not duly served with the notice of the second Claim Petition No.241 of 2001.

5. Undisputedly, the earlier Claim Petition No.67 of 1993 filed by the respondent No.1-claimant for the same relief was dismissed in default on 6-3-1995. In view of the provision of Order IX, Rule 4 of the Code of Civil Procedure, it is permissible for the claimant to file a fresh petition or to get the petition dismissed in default restored, provided it is within a period of limitation. The limitation of six months for preferring a claim petition was provided under sub-section (3) of Section 166 of the Motor Vehicles Act. Undisputedly, the earlier Claim Petition No.67 of 1993 was filed within a period of limitation. By virtue of amendment to sub-section (3) of Section 166 of the Motor Vehicles Act, the provision of limitation was deleted with effect from 14-11-1994. It was thereafter that the earlier Claim Petition No.67 of 1993 was dismissed in default. It was open for the respondent No.1-claimant either to file an application for restoration of that claim petition or to file a fresh claim petition for the same relief and there was no limitation prescribed for such purpose. The Tribunal has awarded the interest from the date of filing of Claim Petition No.241 of 2001 on 10-9-2001 and the interest has not been awarded from the date of filing of the earlier Claim Petition No.67 of 1993. In these facts and circumstances of the case, it cannot be said that the second Claim Petition No.241 of 2001 was not maintainable.

6. There is nothing on record to show that the vehicle in question, i.e. Truck bearing registration No.AP9 T/2175, was insured with the respondent No.2-National Insurance Company Ltd. Neither the respondent No.1-claimant, nor the appellant, the owner of the vehicle in question, have placed anything on record to show that the vehicle was insured and such insurance was valid and subsisting on the date of occurrence of the accident on 20-12-1992. In view of this, the owner was held liable for payment of compensation. No fault can be found with the view taken by the Tribunal.

7. In view of above, the appeal is dismissed. If the appellant has deposited any amount in this Court, the same is permitted to be withdrawn by the respondent No.1-claimant along with interest, if any accrued thereon. No order as to costs.