Shripathy and ors. Vs. State - Court Judgment

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- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. jaganmohan reddy, j.1. this is a second appeal against the finding and judgment of the learned sessions judge of bhir. the facts of the case are that the three appellants who were caught while transporting coal and edible oils on the night of 21 and 22 february 1951, in contravention of notifications under the essential supplies (temporary powers) act, were charged, convicted and sentenced to 5 months' rigorous imprisonment and a fine of rs. 100/- each with an alternative sentence in. default of the payment of the fine. the learned sessions judge to whom the accused have appealed after reviewing the evidence confirmed the convictions, but reduced the sentence to one month's rigorous imprisonment and a fine of rs. 100/-. of this sentence, the accused have undergone fifteen days rigorous imprisonment and have been released on bail. apart from the question whether a second appeal would lie to the high court after the enforcement of the indian criminal procedure code, inasmuch as the charge-sheet was filed before it was enforced under the hyderabad criminal procedure code, we can treat the application as a revision petition. on an examination of the record, we find that no charge has been framed against the accused as the magistrate was bound to do if it was a trial in which the procedure laid down for warrant cases was being applied. but since this was not done, and for reasons which we will subsequently give, the conclusion at which we have arrived at is that the procedure under which the trial has been conducted is that prescribed for summary cases.2. under section 12 of the essential supplies act, no doubt all first class magistrates, who are empowered to try in a summary way offences specified in sub-section (1) of section 260 of the criminal procedure code of 1898, may on application in this behalf being made by the prosecution try in accordance with the provisions contained in sections 262 - 265 of the said code any offence punishable under this act. the essential supplies act was enforced in the state of hyderabad on 17th august 1950; as such it governs this case and any reference in the act to the indian criminal procedure code shall under section 2a of the said act be construed as a reference to the corresponding enactment in force in the state, i.e., hyderabad criminal procedure code.3. on going through the records, we find that the trial has been conducted in accordance with the procedure laid down for summary trials, in that a memorandum of evidence has been recorded, a charge was not framed nor any statement of the accused has been recorded. the offence is one which is admittedly punishable with a sentence of 3 years rigorous imprisonment or more and is not ordinarily triable under a summary procedure unless the special provisions of the code are made applicable. in this case before the procedure prescribed for summary trials was followed the prosecution ought to have made an application in order to warrant the magistrate in adopting the summary procedure. but no such application has in fact been presented or made to the court, and as such the prosecution has not in our view conformed with the provisions of section 12 of the essential supplies (temporary powers) act before the magistrate could try the case in a summary manner. in the absence o such an application, we are of the opinion that the trial in a summary manner by the magistrate was vitiated not only as being one which, was without jurisdiction but also as creating a prejudice to the accused in that he is deprived of the right of appeal. ordinarily we would have remanded the case for retrial; but having regard to the fact that the accused had already served a part of their sentence, we do not think it in the interest of justice to order a remand of the case for fresh trial. we set aside the conviction and sentence. the fine if any paid be refunded. this judgment will govern all the other connected appeals.