Khalaniya Bai Diwan and ors. Vs. Narendrapal Singh and ors. - Court Judgment

Excerpt:
- d.m. dharmadhikari, j.1. in this revision preferred by the claimants in a case arising out of a motor accident, the only question involved is whether the claims tribunal ought to have allowed the application for correcting the alleged inadvertent mistake in the award limiting the liability of the insurance company to the extent of rs. 50,000/-, when the statutory liability on the date of the accident was rs. 1,50,000/- under section 95(2)(a) of the motor vehicles act, 1939.2. the learned member of the claims tribunal in his award passed on 31.12.1990 determined the total compensation at rs. 1,50,000/- payable to the claimants. the liability of the insurance company has been limited to rs. 50,000/-. in the award, no reason has been mentioned to limit the liability of the insurance company to the above extent. after passing of the award, the claimants moved an application describing it as a review application read with section 151, civil procedure code. it was pointed out in that application that by amendment to the act, the statutory liability under section 95(2)(a) of the act of 1939 was enhanced with effect from 1.10.1982 from rs. 50,000 to rs. 1,50,000/-. according to the claimants, the learned member of the claims tribunal, while passing the award, appears to have overlooked the above statutory change and, therefore, the award was liable to be corrected by making the insurance company liable for payment of the entire compensation awarded as the statutory liability of the insurance company on the date of the accident, which took place on 20.3.1985, was rs. 1,50,000/-.3. the claims tribunal by the impugned order passed on 22.8.1991 rejected the application for correction of the award stating that in terms of the policy, the liability of the insurance company was limited to rs. 50,000/-.4. the learned counsel appearing for the claimants relies on ramesh kumar v. national insurance co. ltd. 1986 acj 557 (p&h;) and contends that the claims tribunal ought to have held that the insurance company was liable to discharge the statutory liability to the extent of rs. 1,50,000/- irrespective of its contractual liability stated to be limited to rs. 50,000/- in insurance policy document.5. the learned counsel appearing for the insurance company, on the other side, submits that the award should have been appealed against and the error pointed out in the award is not such which can be corrected by way of a review application before the claims tribunal. the second submission made on behalf of the insurance company is that if the owner of the vehicle is required to discharge the entire liability, it is for the owner as an insured to claim reimbursement from the insurer and the claimants cannot be heard in a review application for change of the award.6. having heard the learned counsel appearing for the parties and having carefully gone through the record, in my opinion, the revision deserves to succeed and the award is liable to be corrected to hold that the liability of the insurance company jointly and severally is to the extent of rs. 1,50,000/- being its statutory liability under the amended provisions of section 95(2)(a) of the motor vehicles act, 1939. i have seen the policy document, which is on record of the case. it is to be noticed that in the relevant column of limited liability, a sum of rs. 50,000/- is mentioned; but the said column also contains the embossment in ink with rubber stamp mentioning the following words:such amount as is necessary to meet the requirement of the motor vehicles act, 1939.7. i have seen the relevant part of the written statement filed by the insurance company in which at two places in paras 12 and 15 by correcting with ink, the liability of the insurance company is stated to be rs. 1,50,000/-.8. in view of the above documents and pleadings, it is not open to the insurance company to contend that its contractual liability was less than the statutory liability imposed under the act. this is, therefore, a case where both-statutory and contractual liabilities of the insurance company-are to the extent of rs. 1,50,000/-. this mistake in the award was apparently an inadvertent one as the policy document and the relevant column therein containing the above reproduced endorsement embossed on it escaped notice of the learned member of the claims tribunal. such mistake inadvertently committed can be rectified by the claims tribunal it being a court subordinate to the high court within the meaning of section 115 of the civil procedure code. an inadvertent omission or clerical mistake can be corrected by the tribunal in exercise of powers analogous of section 152, civil procedure code.9. the revision, therefore, succeeds and is allowed. the impugned order dated 22.8.1991 of the claims tribunal is set aside and the award of the claims tribunal dated 31.10.1990 is suitably corrected by directing that the total compensation awarded to the claimants in the sum of rs. 1,50,000/- is liable to be paid jointly and severally by the non-applicants who are, the owner of the vehicle, insurance company and the driver respectively. in the circumstances, there shall be no order as to costs.