On 26th August 2020, Justice Sanjeev Kumar heard the case of Oriental Insurance Company Limited vs. Nand Kishore Sharma, via video-conferencing. The Court set aside the findings of the Tribunal by giving certain directions.
Facts of the case
On 31st October 2013, the Motor Accident Claims Tribunal passed an order which entitled the claimants with compensation of ₹7,38,400 along with a future interest of 7.5% per annum. The insurer, the Oriental Insurance Company Limited, has filed an appeal against the above order.
The Tribunal’s order was challenged on the following grounds –
- The driver of the offending vehicle at the time of the accident did not hold a valid driving licensing to drive a truck. The insurer was, thus, not liable to compensate the claimants. The Tribunal did not appreciate this fact.
- The Tribunal did not give an opportunity to the insurer to lead its evidence. The owner and the driver of the offending vehicle, who were cited as witnesses, were not summoned. This was despite the insurer seeking the Tribunal’s assistance to summon them. Further, the insurer had also deposited the requisite diet expenses. However, the insurer did not challenge the quantum of compensation.
Arguments of the Insurer
The learned counsel for the insurer argued that the Tribunal did not follow the provisions of Section 169 of the Motor Vehicles Act, 1988. Under this Section, the Tribunal has the power to enforce the attendance of the witnesses. If the Tribunal had allowed examining the witnesses, the insurer would have proved that the driver of the offending vehicle, at the time of the accident, did not hold a valid driving license.
Arguments of the Claimants
The learned counsel for the claimants argued that even if the witnesses were examined, the position of the claimants would remain unchanged. Further, even if the insurer proves that the driver of the offending vehicle, at the time accident, did not hold an effective license, the Tribunal would apply the principle of ‘pay and recover’. Therefore, the insurer would be liable to compensate the claimants in the first instance.
The provisions of Section 169 are clear and unequivocal. The application for summoning the witnesses is filed along with requisite expenses deposited. Therefore, it is obligatory upon the Tribunal to issue process and enforce the attendance of such witnesses. Thus, it is clear that the insurer was deprived of an adequate opportunity to lead the evidence. The omission of summoning the witnesses calls for remand. However, the liability to pay compensation to the claimants would not change. This is even if the insurer succeeds in proving its contention.
The findings of the Tribunal are set aside. The matter is remanded to the Tribunal with the following directions –
- The Tribunal must summon the witnesses of the insurer.
- The insurer must be allowed to examine the witnesses to discharge its burden of proof. Thus, the issue shall be decided based on fresh evidence.
- All the parties to the claim petition should be given a full opportunity to contest on the issue.
- Notwithstanding the remand and direction for determination of this issue afresh, the insurer must pay the awarded amount along with interest. However, the amount already released by this Court in favour of the claimants need not be paid again. The Registry shall release the amount deposited with it in favour of the claimants as per the terms and conditions of the award.
- The right of the insurer to recover the award amount, paid to the claimants, from the insured/owner of the offending vehicle shall depend upon determination and decision of the Tribunal on the issue. Further, also depends on its effect on the liability of the insurer.
The Court disposed of the appeal along with the connected application.
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