ORDER
S.K. Kulshrestha, J.
1. This appeal has been filed by Insurance Company, under Section 173 of the Motor Vehicles Act, against the award dated 2-12-2004, passed in Claim Case No. 42/2004 by the 4th Additional Motor Accident Claims Tribunal (Fast Track), Khargone, by which the claimant has been awarded a total sum of Rs. 11,65,300/- for the injuries sustained by him in a motor accident.
2. On 9-4-2003, the respondent-Hukumchand was proceeding on his motorcycle. As he reached Kasravad Road, near RTO Office, respondent No. 2 approached at an alarming speed driving a tractor which collided with the motorcycle of the applicant. The applicant Hukumchand sustained grievous injuries and was in coma for a period of one month. Even on the date of the filing of the application for claim, the respondent - claimant was confined to bed and was unable to attend to his daily routine. It was in this context that a sum of Rs. 21,85,000/- was claimed. The Tribunal, however, awarded a sum of Rs. 11,65,300/-. The Insurance Company has filed this appeal on the limited question as to whether without appointment of a guardian under the provisions of Rule 233 of the Madhya Pradesh Motor Vehicles Rules, 1994 (for short, 'the Rules'), the claim by Hukumchand was maintainable. Learned Counsel for the appellant has submitted that since procedure is regulated by the Motor Vehicles Act and the Rules in respect of the matters pertaining to the Claims Tribunal, it was mandatory for the wife of the claimant to have first obtained permission under Rule 233 of the Rules and, therefore, in the absence of appointment of the wife of the respondent as representative on behalf of the claimant the proceedings were vitiated.
Learned Counsel for the respondent, per contra, submits that since Order 32 Rule 1 of the Code of Civil Procedure, permits suits by or against minors or persons of unsound mind, by the next friend, and the wife of the claimant was representating the claimant, she was apparently the next friend in accordance with the provisions contained in Order 32 of the CPC.
3. The core question that arises for consideration is as to whether the claim filed before the Tribunal was competent in the absence of the permission under Rule 233 of the Rules. While the learned Counsel for the appellant contends that in view of the specific provision contained in the Madhya Pradesh Motor Vehicles Rules, 1994, namely; Rule 233, the provisions of the Code of Civil Procedure, would not apply, learned Counsel for the respondent submits that since under Order 32 of the CPC, a person under disability, as enumerated therein, can sue through the next friend, Rule 233 of the Rules, will have no application. Even otherwise, according to the Counsel, the said Rules become operative in totally a different situation.
4. Learned Counsel for the respondent has invited attention to the decision of the Himachal Pradesh High Court in Vidya Devi v. Himachal Road Transport Corporation, Simla and Ors. . In this case, the learned Single Judge has observed that a person may not be of unsound mind, but there may be mental infirmity from which he may be suffering. Even a person of weak mind can sue through a next friend provided the Court is satisfied that he is incapable of protecting his interests. In other words, it can be said that a person who is not of unsound mind may yet be mentally infirm by reason of a physical ailment, may be paralysis. In such cases where a person is rendered so weak and helpless that his mental outfit is by no means the outfit of a normal and healthy man, the provisions of the CPC, Order 32, shall not apply. Observations contained in Paragraph 27 read as extracted below:
27. A person may not be of unsound mind, but there may be mental infirmity from which he may be suffering. Even a person of weak mind can sue through a next friend provided the Court is satisfied that he/she is incapable of protecting his/her interests. In other words, it can be said that a person who is not of unsound mind may yet be mentally infirm by reason of a physical ailment, may be paralysis. He is rendered so weak and helpless that his mental outfit is by no means the outfit of a normal and healthy man.
5. Reference has also been made to a Division Bench decision of the Kerala High Court in Mathen Mathai v. General Manager, K.S.R.T.C. and Ors. : AIR1990Ker92 . In this case also it has been observed that the Tribunal shall have the powers of a Civil, Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling discovery and production of documents and material objects and for such other purposes as may be prescribed. The Court observed that the claim petition filed by the insured through his son, next friend, was maintainable. The extract of the discussion contained in Paragraph 9 of the said report reads as follows:
The provisions of Order XXXII reflect principles of natural justice, equity and good conscience, inasmuch as they allow litigation to be prosecuted or defended on behalf of minor, persons of unsound mind and persons with mental infirmity. In the absence of these provisions, interests of persons with such disability are bound to suffer. In the case of a person who is disabled on account of the accident or is even otherwise disabled it is imperative that his claim must be prosecuted before the Tribunal; for that the Tribunal is at liberty to devise appropriate procedure. In this view the Tribunal must be recognised to have power to invoke the provisions of Order XXXII of the Code of Civil Procedure. This is necessary to do justice and to achieve the purpose for which the Tribunal is constituted. It can also be said that the Tribunal has incidental and ancillary power to invoke the provisions of Order XXXII of the Code of Civil Procedure. We therefore hold that the claim petition filed by the injured through his son, next friend, is maintainable.
6. Since the learned Counsel for the Insurance Company has raised a question with regard to the construction and effect of Rule 233, it would be advantageous to reproduce the said Rule, which reads as under:
233. Appointment of representatives on behalf of parties.-- (1) Where any party to a proceeding is a minor or a person suffering from physical disability and on that account is unable to make an appearance, the Claims Tribunal shall appoint suitable person who consents to the appointment to represent such party for the purpose of the proceeding.
(2) If the Claims Tribunal considers that the interest of any party for whom a representative has been appointed under Sub-rule (1) are not being adequately protected by that representative or if a person appointed to as representative dies or becomes incapable of acting, or otherwise ceases to act as such, Claims Tribunal shall appoint in his place another person who consents to the appointment.
7. From the language of the Rule, which does not suffer from any ambiguity, it is patent that it is only where a party to a proceeding is a minor or person suffering from physical disability and on that count is unable to make an appearance, the Claims Tribunal shall appoint suitable person who consents to the appointment, to represent such party for the purpose of proceeding. The applicability of Rule 233 commences only if a party to the proceeding is a minor or a person suffering from physical disability and on that account, is unable to make an appearance. In this situation, the Claims Tribunal shall appoint suitable person to represent such party for the purpose of the proceeding. When a party sues through next friend in accordance with Order 32 Rule 1 of the CPC, it cannot be said that the party to the proceeding is minor or person suffering from physical disability, is not represented. Under these circumstances, the Rule does not become applicable where a party sues through next friend. However, the Claims Tribunal will have option to appoint a person under the said Rule, if it finds that the next friend through whom the party has initiated the proceedings is not suitable to pursue the proceedings and to protect the interests of the affected person. In such a situation it will always be open to the Tribunal to invoke the provisions of Sub-rule (2) of Rule 233 of the Madhya Pradesh Motor Vehicles Rules, 1994. We are, therefore, of the considered view that there was no irregularity in filing of the claim petition through the next friend, wife of the injured.
8. Learned Counsel for the respondent has also submitted that within the defences available to the Insurance Company, such an objection cannot be raised as the role of Insurance Company remains confined to the provisions enumerated in Sub-section (2) of Section 149. She has also submitted that since claim petition has been signed by the claimant and his wife, both, the irregularity pointed out by the appellant - Insurance Company, even otherwise, does not exist. We have examined the claim petition filed before the Tribunal and we find that it bears signature of the claimant as also of his wife. It is perhaps for this reason that such an objection was not taken by the Insurance Company in its Written Statement. Be that as it may, since we have held that the claim can be filed in given cases through the next friend, as contemplated by Order 32 Rule 1 of the CPC and the applicability of Rule 233 of the Madhya Pradesh Motor Vehicle Rules, 1994 is in altogether a different sphere, we are unable to sustain the objection of the Insurance Company.
Accordingly, this appeal is dismissed but with no order as to costs.