National Insurance Co. Ltd. Vs. Brahmananda Jena and anr. - Court Judgment

S.C. Mohapatra, J.

1. This is an appeal by the insurer under Section 110-D of the Motor Vehicles Act, 1939 (in short 'the Act').

2. Claimant is a daily labourer. On 23-6-1979 at about 4,30 p.m. while he was returning back from his work with other workers on the Singhipur Road, the truck bearing registration No. OSC 197 loaded with stone boulders came from their front at a high speed. It dashed against the respondent No. 1 causing fracture of his right leg and overturned causing injuries to the other field workers with the respondent No. 1. Four separate claim applications were filed which were taken up together for enquiry. One set of evidence was recorded and one common order was passed.

3. A preliminary objection was raised by Mr. M.M. Sahu, the learned Counsel appearing for respondent No. 1, that the appeal is not entertainable since in respect of two of the claimants the finding that the appellant is the insurer has become final.

4. Mr. P. Roy, the learned Counsel for the appellant submitted that in respect of the two claims where the amounts of compensation awarded were less than Rs. 2,000/- each, no appeal was maintainable in view of the language of Section 110-D of the Act and applications under Article 226 of the Constitution registered as O.J.C. No. 1640 of 1983 and O.J.C. No. 1773 of 1983 were summarily dismissed without being admitted.

5. I am not able to accept the submission of Mr. Sahu. Approaching this Court under Article 226 of the Constitution cannot be said to be a remedy in the strict sense of the term. The scope of interference in a writ jurisdiction is much limited. Where a right is not given under the statute for preferring appeal even against wrong decisions in view of the negligible quantum, the exercise of the writ jurisdiction may not be appropriate, and possibly on that count both the writ applications were not admitted. Therefore, in the absence of remedy against a decision in a summary enquiry as under Section 110-B of the Act, attracting the principles of res judicata would be most in appropriate.

6. In the written statement, the insurer had taken the specific plea that the owner had not been insured in respect of the vehicle by the appellant. The Tribunal entertained the certified copy of the certificate by the Regional Transport Authority after the enquiry and before the order. The grievance of the appellant is that it had no chance to explain to the Tribunal that from the document it cannot be spelt out that the appellant was the insurer. Mr. M.M. Sahu, the learned Counsel for the respondent No. 1, does not dispute that the certificate was filed on 8-6-1982 after the enquiry was closed on 21-5-1982.

7. The order dated 21-5-1982 was passed in presence of the appellant fixing the case to 3-6-1982 for judgment. On 3-6-1982, the judgment not being ready, the case was posted to 11-6-1982 for judgment. This was known to the appellant. However, on 8-6-1982 the certificate was filed without notice of filing the same to the appellant.

8. In the circumstances, when the appellant did not get opportunity to explain the document, the contention of Mr. Roy is justified. The order so far as the respondent No. 1 is concerned is set aside. The respondent No. 1 is to face the litigation again. While entertaining the document, the Tribunal ought to have given chance to the insurer to explain the document. Respondent No. 1 is, therefore, to be paid a cost of Rs. 250/- (two hundred fifty) by the appellant within one month from today, through Mr. M.M. Sahu in this Court.

9. On receipt of the record, the Tribunal shall give notice to the claimant, the insurer and the owner to adduce further evidence in the matter if so advised and thereafter the award shall be passed. I may make it clear that the Tribunal can award more compensation than the amount awarded in the impugned order if the materials so justify.

10. In the result, the appeal is allowed. The claim application is directed to be decided on its own merits. There shall be no order as to costs of this appeal.