A. Shankar Lingam Vs. Meharunnissa Begum and ors. - Court Judgment

Excerpt:
- 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - strong reliance was placed on the under-noted decisions:orderp.s. narayana, j.1. the matter is coming up for admission.2. heard sri pankaj reddy, the earned counsel representing the revision petitioner and sri ramakrishna, the earned counsel representing the respondents.3. sri pankaj reddy, the earned counsel representing the revision petitioner had taken this court through the reasons recorded by the learned principal junior civil judge, warangal in la. no. 3057/2006 in o.s. no. 93/2003 and would contend that in the facts and circumstances instead of adopting a liberal approach in summoning the witness by name merugu yadagiri to examine him as a witness before the court, without recording proper reasons, the learned judge had dismissed the application and the discretion was not exercised judiciously. the earned counsel relied on several decisions to substantiate his contentions.4. per contra, sri ramakrishna, the earned counsel representing the respondents had taken this court through the reasons recorded in paras 6 and 7 of the order impugned in the c.r.p. and would maintain that in the light of the reasons which had been recorded, it is clear that the application is not a bonafide one and had been thought of only to drag on the proceeding and hence the impugned order does not suffer from any illegality whatsoever and the c.r.p. is liable to be dismissed.5. the present c.r.p. is filed under article 227 of the constitution of india questioning the order made by the learned principal junior civil judge, warangal in i.a. no. 3057/2006 in o.s. no. 93 of 2003 dated 1-12-2006. the said application was filed by the revision petitioner under order xvi of the code of civil procedure to summon the witness by name merugu yadagiri to examine him as a witness before the court.6. it is stated by the revision petitioner that he had examined himself as d. w. 1 and had examined another witness on his behalf and however, the respondents had threatened him not to examine yadagiri and also threatened yadagiri not to enter into witness box. in such circumstances, the relief as specified supra had been prayed for.7. the same was opposed by filing a counter stating that the said witness is(not a necessary witness at all for the purpose of adjudication of the questions in controversy. further specific stand is taken that the petitioner has been filing several applications only with a view to drag on the proceedings.8. the learned judge recorded reasons in paras 6 and 7 of the impugned order and ultimately dismissed the application without costs. aggrieved by the same, the present c.r.p. is preferred.9. it is no doubt true that normally the parties to be permitted to examine the witnesses at their choice and the courts are expected to adopt a liberal approach. strong reliance was placed on the under-noted decisions:addagatla narendar v. some vijayalakshmi : 2006(3)ald94 ; veluguri vijaya venkata lakshmi narayana v. athukuri nageshwara rao : air2004ap192 ;lalitha j. rai v. aithappa rai : [1995]3scr861 ;sikhandarsaheb and anr. v. husenasaheb 1996 (2) ccc 465 (karn.);bennett coleman and co. ltd. v. janaki ballav patnaik air 1989 ori. 145;preet cold storage and ice factory and anr. v. united commercial bank, sangol and ors. ;kalu and anr. v. chhitar and ors. ; and n. balaraju and anr. v. g. vidhyadhar : air2004ap516 .there cannot be any quarrel with the proposition of law which had been laid down in the decisions which had been cited by the counsel representing the revision petitioner. the evidence of the defendant had been commenced from 28-11-2005 and since then the matter had undergone several adjournments. further it is stated that the petitioner already had examined four witnesses and the evidence was closed on 6-11-2006 and the matter was heard on behalf of the plaintiff. at the stage of arguments of the defendants, again an application was filed to recall d.w.i and the same was allowed and exs.b.12 to b.22 were marked. thereafter, the arguments of the plaintiff were heard and again the matter was posted for the arguments of the defendants and at this stage, the present application was filed. it is also pertinent to note that the suit filed is for eviction of the petitioner on the strength of the notice issued under section 106 of the transfer of property act. further reasons had been recorded in para 7 and it was recorded that the examination of this witness may not serve any purpose and only with a view to further procrastinate the matter, this application had been thought of. when the application is such a belated application and also not a bona fide application and in the light of the reasons recorded in paras 6 and 7 of the impugned order, this court is of the considered opinion that the said order cannot be found fault and even otherwise, this is not a fit case to be interfered with under article 227 of the constitution of india. in view of the same, the crp shall stand dismissed at the stage of admission. no order as to costs.

Judgment:
ORDER

P.S. Narayana, J.

1. The matter is coming up for admission.

2. Heard Sri Pankaj Reddy, the earned Counsel representing the revision petitioner and Sri Ramakrishna, the earned Counsel representing the respondents.

3. Sri Pankaj Reddy, the earned Counsel representing the revision petitioner had taken this Court through the reasons recorded by the learned Principal Junior Civil Judge, Warangal in LA. No. 3057/2006 in O.S. No. 93/2003 and would contend that in the facts and circumstances instead of adopting a liberal approach in summoning the witness by name Merugu Yadagiri to examine him as a witness before the Court, without recording proper reasons, the learned Judge had dismissed the application and the discretion was not exercised judiciously. The earned Counsel relied on several decisions to substantiate his contentions.

4. Per contra, Sri Ramakrishna, the earned Counsel representing the respondents had taken this Court through the reasons recorded in Paras 6 and 7 of the Order impugned in the C.R.P. and would maintain that in the light of the reasons which had been recorded, it is clear that the application is not a bonafide one and had been thought of only to drag on the proceeding and hence the impugned order does not suffer from any illegality whatsoever and the C.R.P. is liable to be dismissed.

5. The present C.R.P. is filed under Article 227 of the Constitution of India questioning the order made by the learned Principal Junior Civil Judge, Warangal in I.A. No. 3057/2006 in O.S. No. 93 of 2003 dated 1-12-2006. The said application was filed by the revision petitioner under Order XVI of the Code of Civil Procedure to summon the witness by name Merugu Yadagiri to examine him as a witness before the Court.

6. It is stated by the revision petitioner that he had examined himself as D. W. 1 and had examined another witness on his behalf and however, the respondents had threatened him not to examine Yadagiri and also threatened Yadagiri not to enter into Witness Box. In such circumstances, the relief as specified supra had been prayed for.

7. The same was opposed by filing a counter stating that the said witness is(not a necessary witness at all for the purpose of adjudication of the questions in controversy. Further specific stand is taken that the petitioner has been filing several applications only with a view to drag on the proceedings.

8. The learned Judge recorded reasons in Paras 6 and 7 of the impugned order and ultimately dismissed the application without costs. Aggrieved by the same, the present C.R.P. is preferred.

9. It is no doubt true that normally the parties to be permitted to examine the witnesses at their choice and the Courts are expected to adopt a liberal approach. Strong reliance was placed on the under-noted decisions:

Addagatla Narendar v. Some Vijayalakshmi : 2006(3)ALD94 ;

Veluguri Vijaya Venkata Lakshmi Narayana v. Athukuri Nageshwara Rao : AIR2004AP192 ;

Lalitha J. Rai v. Aithappa Rai : [1995]3SCR861 ;

Sikhandarsaheb and Anr. v. Husenasaheb 1996 (2) CCC 465 (Karn.);

Bennett Coleman and Co. Ltd. v. Janaki Ballav Patnaik AIR 1989 Ori. 145;

Preet Cold Storage and Ice Factory and Anr. v. United Commercial Bank, Sangol and Ors. ;

Kalu and Anr. v. Chhitar and Ors. ; and

N. Balaraju and Anr. v. G. Vidhyadhar : AIR2004AP516 .

There cannot be any quarrel with the proposition of Law which had been laid down in the decisions which had been cited by the Counsel representing the revision petitioner. The evidence of the defendant had been commenced from 28-11-2005 and since then the matter had undergone several adjournments. Further it is stated that the petitioner already had examined four witnesses and the evidence was closed on 6-11-2006 and the matter was heard on behalf of the plaintiff. At the stage of arguments of the defendants, again an application was filed to recall D.W.I and the same was allowed and Exs.B.12 to B.22 were marked. Thereafter, the arguments of the plaintiff were heard and again the matter was posted for the arguments of the defendants and at this stage, the present application was filed. It is also pertinent to note that the suit filed is for eviction of the petitioner on the strength of the notice issued under Section 106 of the Transfer of Property Act. Further reasons had been recorded in Para 7 and it was recorded that the examination of this witness may not serve any purpose and only with a view to further procrastinate the matter, this application had been thought of. When the application is such a belated application and also not a bona fide application and in the light of the reasons recorded in Paras 6 and 7 of the impugned order, this Court is of the considered opinion that the said order cannot be found fault and even otherwise, this is not a fit case to be interfered with under Article 227 of the Constitution of India. In view of the same, the CRP shall stand dismissed at the stage of admission. No order as to costs.