98

CHAPTER: III

Claims Tribunal under Motor Vehicles Act, 1988

99

CHAPTER: III

Claims Tribunal under Motor Vehicles Act, 1988

A. Introduction

A new forum, i.e. Motor Accidents Claims Tribunal, which substitutes Civil

Court, has been created by the Motor Vehicles Act, for cheaper and speedier

remedy to the victims of accident of motor vehicles. Prior to the Motor Vehicles

Act, a suit for damages had to be filed with civil court, on payment of ad

valorem court fee. But, under the provisions of this Act, an application claiming

compensation can be made to the Claims Tribunal without payment of ad

valorem fee1. New provisions in Motor Vehicles Act, do not create any new

liability, and the liability is still based on law of tort and enactments like the

Fatal Accidents Act. The position on this point was critically explained in

Oriental Fire & General Insurance Co. v. Kamal Kamini2:

The object of this group of sections 110 to 110F of the (1939) Act is to supply a

cheap and expeditious mode of enforcing liability arising out of claim for

compensation in respect of accident involving the death, or bodily injury to,

persons arising out of the use of motor vehicles, or damage to any property of a

third party so arising, or both as referred to in Section 110. Prior to the

constitution of the Tribunal, compensation could be claimed by institution of

suits for damages only through the medium of the Civil Court on payment of ad

valorem court fee. This group of sections furnishes a self-contained Code that

1 Swaranlata v. N.T.I. Pvt. Ltd., A I R 1974 (Gauhati), 31 ; see also R.K.Bangia, Law of Torts including Compensation under the Motor Vehicles Act (1997) p.469 2 Oriental Fire & General Insurance Co. v. Kamal Kamini, A. I . R. 1973 (Orissa) 33

100

the claims can be lodged on the basis of an application without payment of ad

valorem court fee. By providing a direct appeal to the High Court, second

appeals are also dispensed with. The Tribunal is to follow a summary procedure

for adjudication of claims being provided, the sections do not deal with the

substantive law regarding determination of liability. They only furnish a new

mode of enforcing liability. For determination of liability one has still to look to

the substantive law in the law of torts and Fatal Accident Act, 1855 or at any rate

to the principles thereof.

Chapter XII of the Motor Vehicles Act, 1988 deals with the constitution of

Claims Tribunal, Application of Claims and award of compensation etc. This

chapter also deals with procedure followed by tribunals in awarding claim and

awarding of interest and compensatory costs in some cases and appeals against

the orders of claims tribunal.

B. Establishment and Composition of Claims Tribunal.

Section 165 of Motor Vehicles Act, 1988 empowers the State Government to

constitute Claims Tribunal to adjudicate upon claims for compensation arising

out of motor vehicle accidents, resulting in death or bodily injury to persons or

damages to any property of third parties.

A State Government may, by notification in the Official Gazette, constitute one

or more Motor Accidents Claims Tribunal (hereafter in this Chapter referred to

as Claims Tribunal) for such area as may be specified in the notification for the

purpose of adjudicating upon claims for compensation in respect of accidents

involving the death of, or bodily injury to, persons arising out of the use of motor

vehicles, or damages to any property of a third party so arising, or both3.

3 The Motor Vehicles Act, 1988, Section 165 (1)

101

For the removal of doubts, it is hereby declared that the expression claims for

compensation in respect of accidents involving the death of or bodily injury to

persons arising out of the use of motor vehicles includes claims for

compensation under section 140 and section 163-A4.

A Claims Tribunal shall consist of such number of members as the State

Government may think fit to appoint and where it consists of two or more

members, one of them shall be appointed as the Chairman thereof5.

A person shall not be qualified for appointment as a member of a Claims

Tribunal unless he is or has been a Judge of a High Court, or is or has been a

District Judge or is qualified for appointment as a High Court Judge or as a

District Judge6.

Where two or more Claims Tribunal are constituted for any area, the State

Government, may by general or special order, regulate the distribution of

business among them7.

I. Setting up of Claims Tribunal

A State Government may, by notification in the official gazette, constitute

one or more motor accident claims tribunal for such area as may be specified

in the notification.

In Minu B. Mehta v. Balkrishna8it was held by the Supreme Court of India

that the power of a State Government to constitute Claims Tribunal is

optional, and the State Government may not constitute a Claims Tribunal for

certain areas.

4 Ibid., Explanation to Section 165 (1) 5 Ibid., Section 165 (2) 6Ibid., Section 165 (3)

7 Ibid., Section 165 (4) 8 Minu B. Mehta v. Balkrishna, A.I.R. 1977 S.C. 1248

102

Where any claims Tribunal has been constituted for any areas, no civil court

shall have jurisdiction to entertain any question relating to any claim for

compensation which may be adjudicated upon by the Claims Tribunal for

that area, and no injunction in respect any action taken or to be taken by or

before the claims tribunal in respect of the claim for compensation shall be

granted by the civil court.

In Sushma Mehta v. Central Provinces Transport Services Ltd9 it was

held by the court that no tribunal can be constituted unless there has been

firstly, a notification of the State Government and Secondly, such notification

has been published in the official gazette of the state.

II. Appointment of Member

A Claims Tribunal shall consist of such number of members as the State

Government may think fit to appoint and where it consists of two or more

members, one of them shall be appointed as the Chairman thereof.

Appointment of a person as member of tribunal by name is not necessary and

appointment with reference to an office is sufficient. But, it does not mean

that no appointment by name can be made. If a person fulfils the qualification

test for such appointment, any person can be appointed to be a member of a

tribunal by name. The usual practice has been to designate as claims tribunal,

the District Judge or Additional District Judge, provided the latter is qualified

to become a District Judge.

In Anirudh Prasad Ambasta v. State of Bihar10

it was held that a District

Judge or Additional District Judge, when appointed as member of the

9 Sushma Mehta v. Central Provinces Transport Services Ltd, AIR 1964 (MP) 133 (DB) 10 Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 (Pat.) 49

103

tribunal would continue to exercise his original jurisdiction as a member of

the State Judicial Service.

III. Appointment of Member by Name not Necessary

Delhi High Court in New Asiatic Transport (P) Co. Ltd. v. Manohar

Lal11

held that appointment of a person as Member of Tribunal by name is not

necessary and appointment with reference to an office is sufficient.

However, it does not follow that no appointment by name can ever be made.

If a person fulfils the qualification test for such appointment, any person can

be appointed to be a Member of a Tribunal by name. The usual practice has

been to designate as Claims Tribunal, the District Judge or Additional

District Judge, provided the latter is qualified to become a District Judge. A

District Judge or Additional District Judge, when appointed as Member of

the Tribunal would continue to exercise his original jurisdiction as a Member

of the State Judicial Service12

.

However, the person so appointed shall function not virtually as court, but

purely as persona designate13

.

The following points should not be ignored while appointment of a person or

denominating any particular judicial officer, to be a Member of the Tribunal:

(a) Notification of Appointment is Necessary

A notification is always necessary for constituting a Claims Tribunal, and

vesting of powers of a Claims Tribunal, whether by name or with

reference to the judicial office. Without notification even a district judge

11

New Asiatic Transport (P) Co. Ltd. v. Manohar Lal, (1966) 68 Punj. LR (Del.) 51. 12

Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 ACJ 238 (Pat.) FB 13

New India Assurance Co. Ltd. v. Molia Devi, 1969 ACJ 164 (MP) DB

104

cannot exercise the powers of a Claims Tribunal, merely because he is a

District Judge and in a case a claim for compensation has been filed

before a District Judge not backed by a notification designating him as

Claims Tribunal, the claim so filed shall not be a claim filed under

Section 166 of the Motor Vechiles Act, 1988 and in that case such claim

shall have to be returned to the claimant for presenting it before a duly

nominated Claims Tribunal14

.

(b) Transfer of Claim Application from District Judge to

Claims Tribunal

Transfer of a claim application filed before a District Judge to the

Competent Claims Tribunal, as concerned to in K.P.Verma v. State of

Bihar15

, will be misconceived since the power of such transfer is ont

inherently vested in the civil court in which such claim has been

erroneously filed, but can be exercised by High Court only either under

Section 24 of the Civil Procedure Code or under Article 227 of the

Constitution, and the only thing the civil court, bereft of the powers of a

Claims Tribunal, can do is to return the claim to the claimant under Order

7, Rule 10 of the Code of Civil Procedure, for it being presented to the

proper Tribunal constituted for that area under section 165 of the Motor

Vehicles Act, 1988.

(c) General Notification Designating All the District Judges as

Claims Tribunal

There can be a general notification designating all the District Judges as

Claims Tribunal. Such notification would be notification generally in

14 Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation (2010) p.495 15 K.P.Verma v. State of Bihar, 1990 ACJ 32 (Pat.) DB.

105

favour of a class of District Judges and then, whoever, occupies the office

of the District Judge shall function also as Claims Tribunal16

.

(d) Not to Confuse Powers of One Office with Other Office.

In Varalakshmi Sundar v. Meeran17

case, it was held by the Madras

High Court that a district Judge when appointed as Claims Tribunal shall

not confuse powers in one office with that of the other. While functioning

as Claims Tribunal, he cannot make use of all his powers as a District

Judge, because the powers of the same judicial officer while acting as

court as also a Claims Tribunal cannot be the same. Whereas a civil court

has plenary powers, the Claims Tribunal is vested only with specified and

limited powers as contemplated by or conferred under the Motor Vehicles

Act18

.

IV. Qualification for Appointment as Member of Claims Tribunal

A person shall not be qualified for appointment as a member of a Claims

Tribunal unless he is or has been a Judge of a High Court, or is or has been a

District Judge or is qualified for appointment as a High Court Judge or as a

District Judge.

The expression is or has been a Judge of the High Court, or a District Judge

implies that a retired Judge of the High Court or a retired District Judge can

be appointed as the member, or the presiding officer, as the case may be, of a

Claims Tribunal.

The expression qualified for appointment as High Court judge or as a

District Judge is referable to relevant provisions of the Constitution of India. 16 Supra n. 14 p.496 17

Varalakshmi Sundar v. Meeran, 1981 ACJ 50 (Mad.) 18 Satyabadi Nayak v. Dameli Khilla, 1991 ACJ 211 (Guj.) DB

106

In computing the period during which a person has held judicial office in the

territory of India, there shall be included any period, after he has held any

judicial office, during which the person has been an advocate of a High Court

or has held the office as a Member of a Tribunal or any post, under the Union

or a state, requiring special knowledge of law. Similarly, in computing the

period during which a person has been an advocate of a High Court, there

shall be included any period during which the person has held judicial office

of a member of a tribunal or any post under the Union or a State, requiring

special knowledge of law after he became an advocate.

V. Other Staff of Claims Tribunal

There is no separate provision for appointment of persons as staff of the

claims tribunal. In case a sitting judicial officer, falling within the definition

of a District Judge, is appointed as member of claims tribunal, the staff of

such appointee shall also function as staff of such Claims Tribunal. In the

case of constitution of the tribunal by appointing a person other than the

person holding the post of a District Judge, it would be open for the State

Government to furnish such tribunal with a staff of persons appointed or to

be appointed by the State Government19

.

VI. Claims Tribunal: Powers of Civil Courts

Claims tribunal set up under this Act are deemed Civil Courts. In Mohd.

Riyazur Rehman Siddiqui v. Deputy Director of Health Services20

it was

held that technically grammatically speaking, tribunal may not be a civil

19 Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation (2010) p.497, 498 20 Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 (3) ACC 300 (Bom)

FB

107

court, but it has all the trapping of court since it passes an award which has

all the ingredients of a judgement as known under civil jurisprudence.

In the matter of Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal21

the distinction between courts and tribunal was pointed out by the Supreme

Court of India as follows:

The word court is not defined in the Companies Act, 1956. It is not defined

in the Civil Procedure Code. The definition in the Indian Evidence Act is not

exhaustive, and is for the purpose of that Act. In the New English

Dictionary22

the meaning is given is: an assembly of judges or other persons

legally appointed and acting as a tribunal to hear and determine any cause,

civil, ecclesiastical, military or naval.

The Claims Tribunal shall, for the purposes of holding any determination

under this Act, have the same powers as are vested in a civil court under the

Code of Civil Procedure, 1908, while trying a suit in respect of the following

matters, namely:

a) The summoning and enforcing the attendance of any witness and

examining him on oath;

b) The discovery and production of any document;

c) The reception of evidence on affidavits;

d) The requisitioning of any public record or document or copy of such

record or document from any court or office; and

e) Such other matters as may be prescribed.

21 Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal, (1962) 2 SCR 339 22

New English Dictionary, Vol. II, p. 1090, 1091

108

VII. Claims Tribunal : A Substitute of Civil Courts for the Purpose

of Compensation Claims

To say that Claims Tribunal is a Court is entirely different from saying that a

Claims tribunal is a Civil Court. It is a civil court for all intents and purposes

of adjudication of claims for compensation in motor accident cases. From the

scheme of the Motor vehicles Act and the Rules framed thereunder, it is clear

that a Claims tribunal is constituted for a specific area, which is specified in

the notification for adjudication of such claim. The institution of the

proceedings is by an application for compensation. The tribunal disposes

such application by giving the parties an opportunity of being heard and

holding an inquiry in to the claim and it has to make an award determining

the amount of compensation is to be paid and the amount which is to be paid

by the insurer. The tribunal has been given all the powers of a civil judge for

the purpose of taking evidence on oath and enforcing the attendance of

witness and of compelling the discovery and production of documents. Rules

framed under the Act also confer all the powers of a civil court on the Claims

tribunal in so far as the same are not inconsistent with the provisions of the

Act. Right to appeal to the High Court is also provided.

Resort to Article 227 of Constitution of India in preference to Revision under

Section 151 of Civil Procedure Code, 1908

In New India Assurance Co. Ltd v. Ganga Devi23

it was held that as a

matter of law and practice both, where the statute has made provision for an

appeal against a judgement or order and right of appeal is absolute,

additional, restricted or otherwise, a revision against such judgement or order

does not lie.

23 New India Assurance Co. Ltd v. Ganga Devi, 2006 ACJ 2857 (Jhar.) DB

109

The reasoning conceding to the power of the High Court to entertain such a

revision seems to gravitate upon one or the other of the propositions not

appealing to the reason. The claims tribunal is said to have trapping of civil

court, but merely because some authority has been clothed with the trappings

of a court, it cannot logically follow that it is liable to be treated as civil court

for all intents and purposes. If the tribunal is or can be considered to be a

civil court, there is no use of employing the additive which inheres the

expression trappings of court. The use of this expression is itself indicative

that the possession of some trappings of a court cannot identify an authority

with a de facto civil court24

.

C. Application for Compensation

Section 166 of the Act provides for the form of application for compensation, the

person who may claim compensation, the time within which the application

should be filed, etc. It also provides that if the Claims Tribunal, thinks so, may

treat the accident report filed by the Police Officer as per Section 158 as an

application under this Act.

An application for compensation arising out of an accident of the nature

specified in sub-section (1) of section 165 may be made by the person who has

sustained the injury or by the owner of the property or where death has resulted

from the accident, by all or any of the legal representatives of the deceased or by

any agent duly authorised by the person injured or all or any of the legal

representatives of the deceased, as the case may be25

.

Provided that where all the legal representatives of the deceased have not joined

in any such application for compensation, the application shall be made on

24

Ibid. 25

The Motor Vehicles Act, 1988, Section 166(1)

110

behalf of or for the benefit of all the legal representatives of the deceased and the

legal representatives who have not so joined, shall be impleaded as respondents

to the application26

.

Every application under sub - section (1) of section 166 shall be made, at the

option of the claimant, either to the Claims Tribunal having jurisdiction over the

area in which the accident occurred or to the Claims Tribunal within the local

limits of whose jurisdiction the claimant resides, or carries on business or within

the local limits of whose jurisdiction the defendant resides and shall be in such

form and contain such particulars as may be prescribed27

.

Provided that where no claim for compensation under section 140 is made in

such application, the application shall contain a separate statement to that effect

immediately before the signature of the applicant28

.

The Claims Tribunal shall treat any report of accidents forwarded to it under

sub-section (6) of section 158 as an application for compensation under this

Act29

.

The state government may under rules prescribes the form of application for

compensation and sub section 2 of section 166 confers jurisdiction to entertain

and adjudicate on such application upon following three different tribunal:

1. The Tribunal within the local limits of whose jurisdiction the accident has

occurred, or:

2. The Tribunal within the local limits of whose jurisdiction the claimant

resides or carries on business, or

26 Ibid., Proviso to Section 166 (1) 27

Ibid., Section 166 (2) 28

Ibid., Proviso to Section 166 (2) 29

Ibid., Section 166(4)

111

3. Within the local limits of whose jurisdiction the defendant resides.

And confusion lingers as to which tribunal shall have jurisdiction to entertain

and adjudicate upon application or applications in cases where the claimants of a

person deceased in an accident, or the defendants, where there are more than

one, are residing or carrying on their business at two or more different places,

and the confusion is embittered particularly in absence of any statutory provision

for transfer of an application from one claims tribunal to another. Assuming that

such transfer at instance of one or more parties can be allowed by the High Court

under Article 227 of the Constitution, if not under section 24 of the code of Civil

Procedure, confusion can hardly be said to have been resolved if in case of

several claimants or several defendants, each may be residing or carrying

business in different states.

Assuming in the last resort, that the Supreme Court may be approached for

allowing such transfer of a claim from one tribunal to the other under Section 25

of the Code of Civil Procedure, it is difficult yet to conceive on what grounds

such transfer can be allowed, when each of the several claimants has legal right

to have his claim decided by the tribunal within the local limits of whose

jurisdiction he resides or carries on business.

In National Insurance Co. Ltd. v. Indu Sharma30

it was held by the High Court

that the proceedings on a claim for compensation under section 163A and

section 166 of the Act can go together, both being independent provisions and

awarding of compensation under section 163 A, unlike that under section 140,

does not detract or defeat the provisions of section 166.

30

National Insurance Co. Ltd. v. Indu Sharma, 2000 ACJ 808 (P&H)

112

In Ramdev Singh V. Chudasma v. Hansrajbhai V Kodala31

it was held by the

High Court that section 163A has specially provided for loss to the estate of the

deceased to a given extent without any proof where compensation on head of

loss of estate cannot be awarded without proof under section 166.

Claim application can be filed under Section 163A for claim to be determined on

structural formula basis provided in Schedule-II. Schedule-II has been adjudged

as suffering from severe mistakes and the Supreme Court has held that total

reliance cannot be placed on this schedule. Further the Schedule do not provide

any computation chart for the persons having more than Rs.40,000/- annual

income. Claim petition can also be filed under Section 166 of Motor Vehicle Act

pleading negligence where the claim shall be assessed by the Judge not on the

basis of structural formula but on the basis of evidence led.

The injured or the legal representatives of deceased can file claim application in

a prescribed format making driver, owner and insurer as party. Driver is not a

necessary party in some states. For e.g. in the Rajasthan Motor Accident Claims

Tribunal Rules only owner and insurer are required to be party. No limitation has

been prescribed for filing of the claim application. Initially when the law has

come into force the limitation was 6 months which was later increased to one

year and ultimately in the garb of welfare legislation the provision of limitation

has been deleted. A claim launched by dependents of deceased but not by his

legal representatives would be defective unless the legal representatives of the

deceased have been joined either as claimants or even as respondents32

.

31 Ramdev Singh V. Chudasma v. Hansrajbhai V. Kodala 1999 ACJ 1129 (Guj.) DB 32

Cheriyakutty Mammi v. UmmerKutty, 1996 ACJ 402 (Ker.) DB

113

I. Who Can File A Claim?

In case of damage to property, the application for compensation has to be

made by the owner of the property damaged. It is implied that in case of

death of owner of the property, the legal representatives of deceased owner

can competently claim compensation33

.

1. People, who have been injured in accidents on the road, can themselves

file for compensation or route the claims though their advocates.

2. But accident victims, who are below 18 years of age, cannot file for

compensation themselves; they have to go through their advocates.

3. Legal heirs of people who have died in accidents can also claim

compensation; alternatively, they can route their claims through their

advocates.

II. Who Can Report to MACT in Case of Accident?

Victim himself or through Advocate, in the case of personal injury. Through

advocate in case of minor applicant below the age of 18 years. Legal heirs

themselves or through advocate in the case of death. The owner of the

vehicle in the case of property damage.

III. Essential Documents Required to File Claim

Following documents are required along with application for compensation

claim34

:

1. Copy of the FIR registered in connection with said accident, if any. 33 Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation (2010) p.642 34 MACT- Motor Accident Claims Tribunal, Accessed on Website, www.Vakilno1.com. On 14.07.2010 at 3.22 p.m.

114

2. Panchnama copy (this is a list of damages that is drawn by cops in the

presence of witnesses).

3. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

4. The documents of the identity of the claimants and of the deceased in a

death case.

5. Original bills of expenses incurred on the treatment along with treatment

record.

6. Documents of the educational qualifications of the deceased, if any.

7. Disability Certificate, if already obtained, in an injury case.

8. The proof of income of the deceased/injured.

9. Documents about the age of the victim.

10. The cover note of the third party insurance policy, if any.

11. An affidavit detailing the relationship of the claimants with the deceased.

12. RTO Certificate (showing name and address of owner and insurance

particulars of vehicle/s involved in the mishap).

13. Passport-Size Photograph.

14. Court-Fee Stamp35.

35

Ibid.

115

IV. The Court Fees For Filling An Application For Compensation

1. Affix a court-fee stamp of Rs 10 if the compensation you are claiming is

less than Rs 5,000.

2. Affix a court-fee stamp that is worth .25 per cent of your claim if you are

asking for compensation that is between Rs 5,001 and Rs 50,000.

3. Affix a court-fee stamp that is worth .5 per cent of your claim if you are

asking for compensation that is between Rs 50,001 and Rs 100,000.

4. Affix a court-fee stamp that is worth 1 per cent of your claim if you are

asking for compensation that is more than Rs 100,000; but the maximum

fee that you have to pay is Rs 15,00036

.

D. Jurisdiction of Claims Tribunal

In Sanno Devi v. Balram37

it was held that jurisdiction of tribunal depends

essentially on the fact whether there had been any use of motor vehicle and once

it has been established, tribunals jurisdiction cannot be held ousted on findings

that it is negligence of other joint tortfeasor and not of the motor vehicle in

question.

A victim of an accident arising out of use of motor vehicles may file their claim

application to the Claims Tribunal within local limits of whose jurisdiction the

claimant resides or carries on business.

36 Ibid. 37 Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB

116

I. Pecuniary Jurisdiction

The pecuniary jurisdiction of the Claims Tribunal has a double implication

i.e. compensation in case of death or bodily injury and in respect of damage

caused to any property. Section 165 of the Act empowers the tribunal to

award compensation not only for death and bodily injury but also for damage

to property. As regards the former, there are three different provisions in the

Motor Vehicles Act, 1988, namely:

1. Compensation in certain cases on the principle of no fault, as provided in

section 140 of the Act.

2. Compensation on structured formula basis, under section 163-A of the

Act, and

3. Compensation which appears to the Claims Tribunal to be just, under

section 168 of the Act.

In the category of claims under 1. Above, i.e. compensation on principle of

no fault, compensation can be awarded either in cases of death or in cases of

permanent disablement of any person, and in either case, the fixed and

different amounts have been fixed respectively for death and permanent

disablement. The relevant provisions are sub-sections (1) and (2) of section

14038

.

II. Exclusion of Civil Courts Jurisdiction not Readily Inferred

The civil courts under section 9 of the Civil Procedure Code, have general

and overall jurisdiction to try all suits of a civil nature and a suit wherein the

right to property or to an office is contested is a suit of a civil nature. The bar

38 Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation (2010) p.537.

117

of jurisdiction of the civil court cannot thus, readily inferred, and the

Supreme Court in a classic decision in Dhulabhai v. State of Madhya

Pradesh39

has covered out as many as seven exceptions to a statutory bar

created on jurisdiction of the civil court, seven exceptions are as under:

1. Where the statute gives finality to the order of the special tribunal, the

civil courts jurisdiction must be held to be excluded if there is adequate

remedy to do what the civil courts would normally do in a suit. Such

provision, however, does not exclude those cases where the provisions of

the particular Act have been complied with or the statutory tribunal has

not acted in conformity with the fundamental principles of judicial

procedure.

2. Where there is an express bar of jurisdiction of the courts, an examination

of the scheme of the particular Act to find the adequacy or the sufficiency

of the remedies provided may be relevant but is not decisive to sustain the

jurisdiction of the civil court. Where there is no express exclusion, the

examination of the remedies and the scheme of the particular Act to find

out the intendment become necessary and the result of the inquiry may be

decisive. In the latter case, it is necessary to see if the statute creates a

special right or a liability and provides for the determination of the right

or liability and further lays down that all questions provides the said right

and liability shall be determined by the tribunal so constituted, and

whether remedies normally associated with actions in civil courts are

prescribed by the said statute or not.

3. Challenge to the provisions of the particular Act as ultra vies cannot be

brought before tribunal constituted under that Act. Even the High Court

39

Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78

118

cannot go into the question on a revision or reference from the decision of

the tribunal.

4. When a provision is already declared unconstitutional or the

constitutionality of any provision is to be challenged, a suit is open. A

writ of certiorari may include a direction for refund if the claim is clearly

within the time prescribed by the Limitation Act but it is not a

compulsory remedy to replace a suit.

5. Where the particular Act contains no machinery for refund of tax

collected in excess of constitutional limits or illegally collected, a suit

lies.

6. Question of the correctness of the assessment apart from its

constitutionality are for the decision of the authorities and a civil suit does

not lie if the orders of the authorities are declared to be final or there is an

express prohibition in the particular Act. In either case the scheme of the

particular Act must be examined because it is a relevant inquiry.

An exclusion of the jurisdiction of the Civil Court is not to be readily

inferred unless the conditions above set down apply.

III. Jurisdiction in Respect of Cases Where Accidents Occurred

Prior to Establishment of Tribunal

The existence of a claims tribunal on the date of accident is not a condition

precedent for entertaining a claim for compensation. A claim for

compensation can be entertained by a Tribunal even in respect of an accident

which occurred at a time when there was no claims tribunal for that area.

119

In New India Assurance Co. v. Rukiyabai40

a motor accident took place

within the jurisdiction of the civil court at Nasik. There was no claims

tribunal on the date when the accident had occurred or on the date when the

suit for compensation was instituted in the Nasik. After the institution of the

suit, the claims tribunal came to be established, but even then the tribunal set

up at Nasik had no jurisdiction to entertain claim for compensation in respect

of accidents which occurred at a place within the territorial jurisdiction of the

Nasik court. It was, therefore, held that the notification establishing a tribunal

at Indore could not come in the way of the civil court at Nasik to proceed

with the claim instituted therein when no tribunal for that area was then in

existence41

.

IV. Bar on jurisdiction of Civil Courts

Section 175 bars the jurisdiction of Civil Courts where any Claims Tribunal

has been constituted.

Where any Claims Tribunal has been constituted for any area, no Civil Court

shall have jurisdiction to entertain any question relating to any claim for

compensation which may be adjudicated upon by the Claims tribunal for that

area, and no injunction in respect of any action taken or to be taken by or

before the Claims Tribunal in respect of the claim for compensation shall be

granted by the Civil Court42

.

In Vatticherukuru Village Panchayat v. Nori Venkataraman

Deehsithulu43

it was held by the apex court that the procedure before the

tribunal is simple and not hidebound by intricate procedure of pleadings and

40

New India Assurance Co. v. Rukiyabai, 1985 (2) ACC 499 41 State of Madhya Pradesh v. Pehlajrai Dwarkada, 1976 ACJ 222 (MP) DB 42

The Motor Vehicles Act, 1988, Section 175 43 Vatticherukuru Village Panchayat v. Nori Venkataraman Deehsithulu, 1991 (5) JT 140

120

trial, admissibility of the evidence and proof of facts according to law.

Therefore, there is abundant flexibility in the discharge of the functions with

greater expedition and in expensiveness.

In Gurbax Singh v. Financial Commissioner44

it was held by the Supreme

Court that despite the bar on civil courts jurisdiction under a statute, if the

special tribunal or authority acts ultra vires or illegally, the civil court has

power by virtue of section 9 of the C.P.C.to interfere and set matters right. If

the provisions of the statute have not been complied with or the statutory

tribunal has not acted in conformity with the fundamental principles of

judicial procedure, the civil courts have jurisdiction to examine such cases.

In Kishan Lal v. State of Jammu and Kashmir45

it was held by the court

that jurisdiction of civil court is not barred where the impugned order, being

in violation of mandatory provisions of the statute is without jurisdiction and

a nullity.

V. Bar on Jurisdiction of Consumer Dispute Redressal Forum

In Chairman Thiruvallurar Transport Corporation v. Consumer

Protection Council46

the deceased was travelling in an omni bus which met

with an accident while trying to avert a bullock cart. It appears that when

the bus driver was in process of overtaking the bullock cart, the bullock got

panickly whereupon the driver swerved the bus to left and ran in to branches

of a tree on the roadside resulting in damage to the vehicle, the window panes

having been smashed. As the vehicle suddenly swerved and the driver

applied the brakes the deceased who was sitting in the centre of the rear seat

44 Gurbax Singh v. Financial Commissioner, AIR 1991 SC 435 45

Kishan Lal v. State of Jammu and Kashmir, (1994) 4 SCC 422 46 Chairman Thiruvallurar Transport Corporation v. Consumer Protection Council, AIR, 1995 SC

1384

121

was thrown in the front and hit against the iron side bar, sustaining a serious

head injury. Subsequently he succumbed to the injury.

The Consumer Protection Council, Tamil Nadu on behalf of the legal

representative of the deceased, lodged a complaint before the National

Commission under the 1986 Act claiming compensation. The appellant

contested the claim contending that the claimant i.e. the Council, had no

locus standi to maintain the action and in any case the National Commission

had no jurisdiction to entertain a petition since exclusive jurisdiction was

conferred by the 1988 Act on the Claims Tribunal constituted thereunder.

The National Commission contended the appellant, side stepped the question

regarding jurisdiction and without answering the same awarded Rs. 5.10 Lacs

by way of compensation with interest at 18% per annum with costs of Rs.

10,000/-. An appeal against the judgement was preferred to the Supreme

Court. The question that arose for consideration was whether the National

Commission had jurisdiction to entertain the claim application and award

compensation in respect of an accident involving death of the deceased

caused by the use of Motor Vehicle.

The Supreme Court without going in to depth of awarding of compensation

by National Commission to the victim, only answer the question of law as to

whether National Commission can entertain such case held that National

Commission has no jurisdiction whatsoever and was entirely wrong in

exercising jurisdiction and awarding compensation. However, in the facts and

circumstances of this case, the judgment pronounced by National

Commission was reversed and appellant were not entitled to recover the

compensation money already paid to the victim under the orders of National

Commission.

122

Hence, claims for compensation arising out of use of motor vehicles cannot

be adjudicated by any of the Consumer Disputes Redressal Forums

contemplated and created under Consumer Protection Act, 1986.

The complaint in the case of motor accident cannot be said to be in relation to

any service hired or availed of by the consumer because the injury sustained

by the consumer has nothing to do with the service provided or availed of by

him if the injury is the direct result of the accident.

VI. Jurisdiction of Tribunal, Where Collision Between Trains And

Motor Vehicle Occurred

In Union of India v. Satish Kumar Patel47

where there is negligence only of

the driver of the motor vehicle or where there is negligence both of the driver

of the motor vehicle and of the railway, a claim is entertainable by the motor

accidents claims tribunal.

In Amritlal v.Union of India48

where the truck driver was warned by inmates

of truck about approaching railway engine and there was consequent

collision between truck and the engine on unmanned railway level crossing

and resultant death of some of the passengers in the truck and injuries to

other inmates of truck, award of compensation by the tribunal was held

justified and the railways was held not liable since it is no duty of railways to

man all level crossings.

In Union of India v. Bhagwati Prasad49

there was collision between a

passenger train and a taxi. The track was lying open even at time of passing

of the train. Some of the inmates of the taxi died and others sustained injury.

47 Union of India v. Satish Kumar Patel, AIR 2001 MP 41 48 Amritlal v.Union of India, 2004 ACJ 1868 (Raj.). 49 Union of India v. Bhagwati Prasad, AIR 2002 SC 1301.

123

It was held that once it is established that the accident arose out of use of

motor vehicle, the tribunals jurisdiction cannot be said to be ousted on a

finding that it was negligence of the other joint tortfeasor and not negligence

of the motor driver.

VII. Claimant to Choose Place of Jurisdiction

A plain reading of section 166(2) shows legislative intent to insert sub-

section (2) that making of claim application under section 166(1) has been

left totally at the option of the claimant, either to the claims tribunal having

jurisdiction over the area where the accident took place, or to such tribunal

within local limits of whose jurisdiction the claimant resides or carries on

business or within local limits of whose jurisdiction the defendant resides. In

other words, obviously the claimant can file an application within the

jurisdiction of claims tribunal (1) where the accident occurred, or (2) before

the tribunal within local limits of whose jurisdiction, claimant resides or

carries on his business, or (3) within local limits of whose jurisdiction, the

defendant resides or carries on his business. In Kusum Devi v.

Dungaram50it was held that in view of the word or which separates three

clauses, the claimant can choose either of the three options and as per

legislative intent, there are three options implied, whereby he has been given

a right to pick one of three places for exercising his option.

In Mantoo Sarkar v. Oriental Insurance C. Ltd51

in this case injured, a

migrant labourer working in district Nanital, sustained injuries in collision

between a bus and truck at a place in Uttar Pradesh. It was held by the

Supreme Court of India that Tribunal of Nanital has jurisdiction to entertain

the claim.

50 Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.). 51

Mantoo Sarkar v. Oriental Insurance Co. Ltd, 2009 ACJ 564

124

VIII. Jurisdiction of Tribunal in India, where Accident occurred in

Foreign Country

A suit or proceeding can be filed in a court or tribunal having jurisdiction in

relation with the place where the cause of action or part thereof had arisen52

and where a bus was booked at Delhi, part of cause action had arisen in India

and the claimants can file a claim in the tribunal having jurisdiction over

place or residence of claimant under section 166(2) of the Act53

.

In the above case, a bus for pilgrimage from Delhi to Kathmandu was booked

at Delhi and vehicle was registered in India. The bus fell into a river in the

territory of Nepal. It was held that a claim under section 163A of the Act was

maintainable in a tribunal within the State of Punjab. It was further held that

the Motor Vehicles Operations and Contiguous Counties Rules, 1963 had no

application, since the rules could operate only if the claim was filed in Nepal.

Eventually, the insurer was held liable.

In Savara Pydi Raju v. T. Venkata Rao54

, it was held that as per amended

provisions of section 166(2) victims are entitled to make their claims in any

court having jurisdiction over place where accident occurred or over place

where they are residing.

IX. Jurisdiction to Entertain Claim by Indigent Person

The tribunal has trapping of civil court for the purpose of taking evidence on

oath and of enforcing attendance of witnesses and compelling the discovery

and production of documents and material objects and for such other

52 Civil Procedure Code, 1908, Section 20. 53

Sarbati v. Anil Kumar, 2006 ACJ 2532 (P&H). 54 Savara Pydi Raju v. T. Venkata Rao, 2007 ACJ 2245 (AP).

125

purposes as may be prescribed, as section 169(2) of the Motor vehicle Act,

1988 has stated. There is no direct reference of Order 33 of Civil Procedure

Code which deals with suits by or on behalf of indigent persons.

In State of Haryana v. Darshana Devi55

the Supreme Court of India

observed that the poor shall not be forced out of the justice market by

instance on court fee and refusal to apply the exemptive provisions of Order

XXXIII, Civil Procedure Code. So we are distressed that the State of

Haryana, mindless of the mandate of equal justice to the indigent under the

magna carta of our Republic, expressed in article 14 and stressed in article

39A of the Constitution, has sought of leave to appeal against the order of the

High Court which has rightly extended the pauper provisions to the auto

accident claims. The reasoning of the High Court in holding trail under Order

XXXIII will apply to tribunals which have the trappings of the civil court

finds our approval and hence upheld the decision of the High Court.

In Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin56

where a prayer

was made for filling the appeal as indigent person. The appellant was

permitted to file the claim before the tribunal as indigent person, but the

claim was dismissed. Permitting the appeal to be filed as indigent person the

court observed that in the legal aid programmes, whatever amount is paid as

legal assistance to the litigant.that is not repayable by the litigant. In the

case where a person comes up with a prayer that he may be permitted to file

appeal as an indigent personby permitting him to file appeal as indigent

person, payment of court fee is only being deferred. So this court, while

dealing with such applications, should be more liberal which will advance the

cause of justice to poor persons.

55 State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC) 56 Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin, 2001 ACJ 346 (Guj.)

126

The court was of the view that in such matter, even notice to the opposite

party is unnecessary, since the other side can challenge the same later on with

necessary, cogent and justifiable evidence57

.

X. Death Occurred Due To Heart Attack : No Jurisdiction

In National Insurance Co. Ltd v. Chandra Prava Barman58

where the

insurer argued that admittedly the father of the claimant died on account of

heart attack and not due to vehicular accident, and that Motor Accidents

Claims Tribunal can award compensation only in connection with the

liability of the insurer on the insured which arises out of vehicular accident

and not for any remote cause. Holding this statement as well merited the

High Court held that the claim for death of the father might or could have

been taken up under Law of Torts and not by Motor Accidents Claims

Tribunal, which has got limited jurisdiction to deal with claims arising out of

accident. Such a claim which has been allowed by the tribunal could only be

within the competence of the civil court and not within the competence of the

Motor Accidents Claims Tribunal.

XI. Transfer of Claims from one Tribunal to another Tribunal

In Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka

Sangha59

the tribunal entertaining the claim was situated at a distance of 1000

kilometers from the claimants residence. Subsequent to the amendment of the

section, giving option to the claimants to file claim at the place of residence,

transfer of claim petition was allowed in conformity with the spirit of law as

amended.

57 Ibid. 58 National Insurance Co. Ltd v. Chandra Prava Barman, 2001(2) TAC 698 (Guj.) DB. 59 Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka Sangha,1997 ACJ 713 (Karn.).

127

In Sripal v. Rajendra Prasad60

the accident had occurred at Eath. The

claimant prayed for transfer of the claim proceedings from Eath to Etawah on

ground of his posting at Etawah, forcing difficulty in obtaining leave for

attending to proceedings at Eath. No prejudice was likely to caused to the

opposite party by such transfer. Transfer of proceedings was allowed in view

of the subsequent amendment in section 166 permitting claim to be instituted

at place of accident or at place of business of claimant or at place of

residence of defendant.

In Padminbai Ashok Yadle v. Mannan Ismail Shaikh61

the claim was

pending before the claims tribunal at Latur, whereas the claimant was

residing at Mumbai, the claim petition was transferred from tribunal at Latur

to the tribunal at Polghar.

The benefit of Section 166(2), which had been inserted by way of a

amendment in 1994, can be extended even in respect of a claim instituted

prior to such amendment.

XII. Claimant can Withdraw Applications and file it at

Appropriate Place

Where the claim was filed in a tribunal having Jurisdiction over the area in

which the accident occurred or defendant resides, but the claimant having

become totally crippled and unable to prosecute his claim there, he may be

allowed to withdraw his claim and file it afresh at a place where he usually

resides.

60

Sripal v. Rajendra Prasad, 1999 ACJ 92 (All.). 61 Padminbai Ashok Yadle v. Mannan Ismail Shaikh,2003 ACJ 247 (Bom.).

128

In B.K. Singh v. Union of India62

where the claim was filed in a tribunal in

Assam having Jurisdiction over the area in which the accident occurred, but

the claimant having become totally crippled and unable to prosecute his

claim, he was allowed to withdraw his claim and file it afresh at Pune as

desired by him.

XIII. Tribunal Cannot Entertain Application for Claim in Case of

Hit and Run Accident

A plain reading of Rule 20 of the Solatium Scheme, 1989, makes it clear that

an application seeking compensation under the Scheme in case of hit and run

accidents is to be filed in Form 1 before the Claims Enquiry Officer of the

Sub-Division in which the accident had taken place. Thus, under the scheme,

a particular forum has been provided for claiming compensation in case of hit

and run motor accidents. This being the position, claimants claiming

compensation in cases of death or grievous hurt arising under the hit and run

motor accidents cannot file application before the Claims Tribunal, and the

Claims Tribunal having no jurisdiction in the matter, the order of the Claims

Tribunal rejecting the objection taken by the insurer as regards the

maintainability of the application cannot be allowed to stand63

.

In Oriental Insurance Co. Ltd. v. Rooplal Singh64s case it was held by the

Patna High Court that the Claims Tribunal must return such application to be

filed before the Claims Enquiry Officer of the concerned Sub-Division in

which the accident had taken place and such matter has to be agitated before

the collector.

62 B.K. Singh v. Union of India, 2006 (4) ACC 242 (SC). 63

New India Assurance Co. Ltd. v. Rajendra Prasad Bhatt, 2002 ACJ 1762 (MP). 64 Oriental Insurance Co. Ltd. v. Rooplal Singh, 2000 ACJ 502 (Pat.)

129

E. Option Regarding Claims For Compensation In Certain

Cases

Section 167 of the Act lays down that when claim arises under this Act and

under the compensation only under either of these Acts and not under both the

Act.

Notwithstanding anything contained in the Workmens Compensation Act, 1923

where the death of, or bodily injury to, any person gives rise to a claim for

compensation under this Act and also under the Workmens Compensation Act,

1923, the person entitled to compensation may without prejudice to the

provisions of Chapter X claim such compensation under either of those Acts but

not under both65

.

In New India Assurance Co. Ltd. v. Mehebubanbibi66

the decision in the case

may be taken as an exception to the provision of section 167, wherein the facts

(at the cost of repetition) were that the deceased had been deputed by his

employer to carry a damaged transformer in a tractor, had fallen into a ditch. The

deceased, pressed under the damaged transformer in the ditch succumbed to his

injuries in the hospital. Death of the deceased had arisen out of and in the course

of employment since the deceased was employee of the electricity board and

died while on duty. Since the accident had occurred because of negligence of the

driver of the tractor, which belonged to a different person, it was held by the

Division Bench that the claimants, in the peculiar circumstance of the case, were

entitled to claim compensation under the Motor Vehicles Act as well as under

the Workmens Compensation Act.

65

The Motor Vehicles Act, 1988, Section 167 66

New India Assurance Co. Ltd. v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB

130

F. Award of the Claims Tribunal

Section 168 of the Act provides that the Claims Tribunal shall deliver the copies

of the award to the parties within fifteen days of the award and that the person

against whom the award is made shall deposit the amount awarded within thirty

days of announcement of the award.

On receipt of an application for compensation made under section 166, the

Claims Tribunal shall, after giving notice of the application to the insurer and

after giving the parties (including the insurer) an opportunity of being heard,

hold an inquiry into the claim or, as the case may be, each of the claims and,

subject to the provisions of section 162 may make an award determining the

amount of compensation which appears to it to be just and specifying the person

or persons to whom compensation shall be paid and in making the award the

Claims Tribunal shall specify the amount which shall be paid by the insurer or

owner or driver of the vehicle involved in the accident or by all or any of them,

as the case may be67

.

Provided that where such application makes a claim for compensation under

section 140 in respect of the death or permanent disablement of any person, such

claim and any other claim (whether made in such application or otherwise) for

compensation in respect of such death or permanent disablement shall be

disposed of in accordance with the provisions of Chapter X68

.

The Claims tribunal shall arrange to deliver copies of the award to the parties

concerned expeditiously and in any case within a period of fifteen days from the

date of the award69

.

67 The Motor Vehicles Act, 1988, Section 168 (1) 68 Ibid., Proviso to Section 168 (1) 69 Ibid., Section 168 (2)

131

When an award is made under this section, the person who is required to pay any

amount in terms of such award shall, within thirty days of the date of announcing

the award by the Claims Tribunal, deposit the entire amount awarded in such

manner as the Claims Tribunal may direct70

.

In Ranu Bala Paul v. Bani Chakraborty71

it was held that an award under

Motor Vehicles Act, 1988 cannot be equated either with a civil or a criminal

case, and the tribunal while awarding compensation is not expected to go into

niceties or technicalities but must adopt a broad and a liberal approach.

In New India Assurance Co. Ltd. v. G. Lakshmi72

it was held that the tribunal

is expected to award a compensation which appears to be just, it follows that in

deserving cases, the tribunal may not be bound by the figure stated in the claim

petition and can award an amount even more that what has been claimed.

G. Procedure and powers of Claims Tribunal

Section 169 of the Act lays down the procedure to be followed by the Claims

Tribunal in setting claims compensation and the powers of the Claims tribunal.

In holding any inquiry under section 168, the Claims Tribunal may, subject to

any rules that may be made in this behalf, follow such summary procedures as it

thinks fit73

.

The Claims Tribunal shall have all the powers of a Civil Court for the purpose of

taking evidence on oath and of enforcing the attendance of witnesses and of

compelling the discovery and production of documents and material objects and

for such other purposes as may be prescribed; and the Claims Tribunal shall be

70 Ibid., Section 168 (3) 71 Ranu Bala Paul v. Bani Chakraborty, 1999 ACJ 634 (Gauhati) 72 New India Assurance Co. Ltd. v. G. Lakshmi , 1999 ACJ 1068 (AP) 73 The Motor Vehicles Act, 1988, Section 169 (1)

132

deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI

of the Code of Criminal Procedure, 197374

.

Subject to any rules that may be made in this behalf, the Claims Tribunal may,

for the purpose of adjudicating upon any claim for compensation, choose one or

more persons possessing special knowledge of any matter relevant to the inquiry

to assist it in holding the inquiry75

.

The procedure to be followed at the Claims Tribunal is as under:

I. Application for Compensation

First step at claims tribunal is application for compensation by either the

victim of motor vehicle accident or his legal heirs or legal representative.

Application for Compensation has been studied in detail earlier in this

chapter under para C with heading - Application for Compensation.

II. Amendment of Pleadings: Amendment for Enhancement of Claim

Amount

In Madan Lal v. Chimman Singh76s Case, it was held by the High Court

that amendment in pleadings cannot be refused on ground of doubt about

truth of averments in pleadings. Truth or otherwise of averments in pleadings

has to be ascertained on basis of evidence.

In a claim by widow for her and her minor son, the widow died during

pendency of proceedings and the son having become major south some

amendment in claim petition. It was wrong on part of Tribunal to have

disallowed amendment holding that there is no provision for amendment and

74 Ibid., Section 169 (2) 75

Ibid., Section 169 (3) 76 Madan Lal v. Chimman Singh, 1991 (1) ACC 265 (MP)

133

doubting bonafides or argument made in application for amendment. In

appeal, the amendment was allowed on costs77

.

In United India Insurance Co. v. Shaik Saibaqtualla78

it was held by the

High Court that there is no provision in law for amendment after decision of

claim. Subsequent events can be no basis for seeking amendment in original

claim after its decision.

An amendment in claim petition for enhancement of amount of compensation

can be sought before the Tribunal but not before the appellate court79

.

III. Notices, Summons, Processes and Service

On receipt of claim application Claims tribunal is duty bound to ensure

service of summons on owner and driver of the vehicle. Where a notice has

been sent in regular course as also through Registered Post, AD, but could

not be served on one of the two owners and there was nothing to show that

said owner was avoiding service or that claimant had made efforts to give

correct address of said owner, it was held that condition for substituted

service through newspaper was not satisfied. Case had to be remanded after

setting aside ex parte orders80

.

In Allanoor v. Dilip Singh81

case it was held by the High Court that the claim

cannot be dismissed by attributing default in filling process fee on part of

claimant for substituted service on owner.

77 Ibid. 78

United India Insurance Co. v. Shaik Saibaqtualla, 1992 ACJ 858 (AP) DB 79

Manager, New India Assurance Co. Ltd v. Chintnala@ Anagaiah Narasimha, 2002 ACJ 1524 (AP)

DB 80

Dayanand v. Baijnath, 1991 ACJ 975 (Raj.) 81 Allanoor v. Dilip Singh 1998 ACJ 136 (Raj.)

134

It was further held that summons on owner and driver of vehicle can be

served on counsel representing driver and owner in criminal court for

purpose of bail82

.

IV. Written Statement

The provision of Rule 1 of Order 1 Civil Procedure Code lays down that

written statement should be filed within 90 days from date of service is

directory and court can grant permission to file written statement even

beyond period of 90 days if a case in this regard is made out. This provision

does not specifically take away the power of court to record written statement

even after period of 90 days.

In Oriental Insurance Co. Ltd. v. Sanjay Kumar83

s case, the Honble High

Court set aside the order of striking off defence in the interest of justice.

In New India Assurance Co. Ltd. v. Bimla84s case it was held by the High

Court that mere admission of driver in his written statement of some of

contentions raised in the claim petition cannot amount to collusion of driver

with the claimant. For the purpose of collusion, there should have been an

issue and for framing of issue, there should have been specific pleading.

Absence of pleadings in written statement that the conditions of insurance

policy were violated resulting in not casting any issue on the point, precludes

insurer to meet such objection85

.

82 Ibid. 83 Oriental Insurance Co. Ltd. v. Sanjay Kumar, 2007 ACJ 222 (P&H). 84

New India Assurance Co. Ltd. v. Bimla, 2001 ACJ 388 (P&H). 85 United India Insurance Co. Ltd. v. B. Hemavati, 2001 ACJ 749 (Cal.) DB

135

V. Summary Procedure for Holding Enquiry

In holding any enquiry under Section 168 of the Motor Vehicles Act, 1988,

the Claims Tribunal may, subject to any rules that may be made in this

behalf, follow such summary procedure as it thinks fit86

.

VI. Powers of Court in Respect of Taking Evidence on Oath,

Enforcing Attendance of Witness Etc.

The claims tribunal shall have all the powers of a civil court for the purpose

of taking evidence on oath and of enforcing the attendance of witness and all

compelling the discovery and production of documents and material objects

and for such other purposes as may be prescribed, and the Claims Tribunal

shall be deemed to be a civil court for all the purposes of Section 195 of the

Motor Vehicles Act, 1988 and Chapter XXVI of the Code of Criminal

Procedure, 197387

.

VII. Taking of Assistance of Persons Possessing Special Knowledge

The Claims Tribunal may, for the purpose of adjudicating upon any claim for

compensation choose one or more persons possessing special knowledge of

any matter relevant to the inquiry to assist it in holding the inquiry. This is

subject to any rules made in this behalf88

.

VIII. Framing of Issues

On receipt of application for compensation and written statement, it is the

duty of the claims tribunal to frame issues involved in the matter.

Adjudicating authority is required to pronounce its judgement on all issues.

86 The Motor Vehicles Act, 1988, Section 169(1) 87

Ibid. Section 169(2) 88

Ibid. Section 169(3)

136

In an accident cases, material propositions for framing issues would be

whether owner of vehicle was involved in accident and who was the person

driving the vehicle and whether accident took place due to rash and negligent

driving of vehicle89

.

Where there are several issues, no party can compel the tribunal to decide an

issue as preliminary issue particularly when the issue raised is not a question

of law or jurisdiction. Order of tribunal was not faulted90

.

Several claims in respect of one single accident when disposed of by

common award and some of them if not appealed from, the issue of

negligence attains finality in awards not appealed from, and same cannot be

reopened in appeal91

.

Once issues have been framed, it is incumbent on tribunal to record its

findings thereon. There is no scope for dismissal in default after claim has

been admitted and issues have been framed. If a claim has been dismissed

after framing issues, Order 9 of Civil Procedure Code would apply for its

restoration92

.

IX. Ex Parte Proceedings Dismissal in Default, Restoration etc.

Where defendants failed to submit written statement as well as failed to

appear before the tribunal either personally or through authorised

representatives or submit written statement but subsequently failed to appear,

the tribunal may record the defendants as ex-parte.

89 Kanti Lal v. Manohar Lal, 1994(1) ACC 413 (MP) 90

Oriental Insurance Co. Ltd. v. Ram Babu, 2007 ACJ 1406 (All.) 91

Oriental Insurance Co. Ltd. v. Badri Ram, 2002(1) TAC 194 (Raj.) 92 Burmi v. Tej Bhan, 1994(2) AJR 24 (P&H).

137

Remedy against order of tribunal refusing to set aside ex-parte award lies in

petition under Article 227 of Constitution of India. A miscellaneous appeal

under Order 43, Rule 1 of Civil Procedure Code is not maintainable nor can

such appeal be treated as petition under article 227 of the Constitution,

though such petition can be filed afresh93

.

An application for setting aside ex parte award was dismissed as not pressed.

It was held that point of ex parte award cannot be reopened or reagitated in

appeal, since fact of application to set aside ex parte award being dismissed

as not pressed amounts to acceptance that defendant was properly declared ex

parte94

.

Where a claim petition was dismissed on the day fixed for evidence but

absence of claimant was not deliberate and counsel of claimant had gone out

of town, it was held that a party cannot be penalized for mistake or

negligence of counsel95

.

X. Judgement Finding on all Issues Necessary

On receipt of an application for compensation made under section 166, the

Claims Tribunal shall, after giving notice of the application to the insurer and

after giving the parties (including the insurer) an opportunity of being heard,

hold an inquiry into the claim or, as the case may be, each of the claims and,

subject to the provisions of section 162 may make an award determining the

amount of compensation which appears to it to be just and specifying the

person or persons to whom compensation shall be paid and in making the

award the Claims Tribunal shall specify the amount which shall be paid by

93 Mangla Jat v. Raju, 2001(2) ACC 195 (Raj.) 94 Gourikutty v. Raghavan, 2002 ACJ 1356(Ker.) DB 95

Urmila Devi v. Sukhdev Singh, 2002(1) ACC 157 (MP)

138

the insurer or owner or driver of the vehicle involved in the accident or by all

or any of them, as the case may be96

.

It is duty of tribunal to record findings on all issues, even if on the finding of

one or other of the issues, it was possible to decide the matter one way or the

other. Under Order 20, Rule 5 of Code of Civil Procedure, it is mandatory

that the court shall state its finding or decision, with the reason therefore,

upon each separate issue and all the distinct issues have to be answered

separately. The exceptional situations are only those provided under Order

14, Rule 2(2), where an issue relating to the jurisdiction or a bar to a suit/

proceedings is required by any law for the time being in force to be decided

as a preliminary issue, where evidence is recorded on all the issues, when

there is scope of appeal, under Section 173 of the Act, to avoid delay and

protraction of litigation, that tribunal/ court should, when dealing with matter

dispose of all issues and not merely to rest its decision on one or more issues

by leaving unanswered the remaining issues97

.

XI. Delivery of Copies of Award to Parties within 15 Days

Section 168(2) of the Motor Vehicles Act, 1988 provides that the Claims

Tribunal shall arrange to deliver copies of the award to the parties concerned

expeditiously and in any case within a period of fifteen days from the date of

award.

XII. Person Required to Pay Compensation in Terms of Award to

Deposit the Entire Amount within 30 Days.

Section 168(3) states that when an award is made under this section, the

person who is required to pay any amount in terms of such award shall within 96

The Motor Vehicles Act, 1988, Section 168 (1) 97

Mallamma v. Mahaboob Ali, AIR 2010 (NOC) 10 (Karn.)

139

30 days of the date of announcing the award by the Claims Tribunal deposit

the entire amount awarded in such manner as the Claims Tribunal may direct.

It may also be noted here that ordinarily while awarding compensation, the

provisions contained in the second schedule may be taken as a guide

including the multiplier, but they may arise some cases, as one in hand,

which may fall in the category having special feature or facts calling for

deviation from the multiplier usually applicable98

.

XIII. Execution of Award of Claims Tribunal

Executing court is not empowered to reconsider any aspect of award afresh

but is required to execute it as passed by trial court. Execution of award if

taken out after twelve years is not permissible. The award if not executed

within twelve years becomes inoperative and unenforceable99

.

The executing court while enforcing the award cannot travel beyond the main

award. Where the offending vehicle was the exclusive property of the U.P.

State Road transport Corporation, the Corporation would be liable for

payment of compensation qua the accident. Any subsequent apportionment

of the assets of the corporation between the state of U.P. and State of

Uttranchal can be no ground to obstruct execution of the award so as to

adversely affects the rights of the claimant. Application of the corporation for

Impleading Uttranchal State Road Transport Corporation was held rightly

rejected by the executing court100

.

Jurisdiction of tribunal to enforce its award is not limited only one method,

namely issuance of certificate to the collector for recovery of the amount due

98

United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2616 99

Mt. Prag Kaur v. Devi Dutt, 1998(1) ACC 313 (P&H). 100

U.P.State Road Transport Corportaion v. Motor Accident Claims Tribunal, AIR 2006 NOC 198

140

under the award as arrears of land revenue. The tribunal posses inherent

jurisdiction to enforce its own award in accordance with the provisions of the

Code of Civil Procedure as applicable to execution of orders and decrees

passed by a civil court. When tribunal possesses such inherent jurisdiction,

the claimant cannot be asked to follow another procedure and the tribunal is

to execute the award under Order 21, Rule 11 of Civil Procedure Code101

.

H. Assessment of Claim

The assessment of compensation, however, be made good but cannot be said to

be fool proof. In every such assessment certain assumptions are to be made and

there is all possibility of variance from Judge to Judge in applying the various

principles enunciated by the Courts from time to time. Lord Viscount Simon has

evolved a method of assessment known as "Nance's method" more popularly as

"discounting method". Another popular method, which is known as Davis

Method was evolved by Lord Wright.

Hon'ble Supreme Court while dealing with a matter evolved a formula. Yearly

Income Yearly expenditure on Deceased gives the sum expended on legal

representatives. If this amount is capitalized subject to certain deductions,

pecuniary loss to the family can be assessed. While improving the above formula

Supreme Court in C.K.Subramonia Iyer v. T. Kunhikuttan Nair102

case has

stated that there is no exact uniform rule for measuring the value of human life

and measure of damages cannot be arrived at by a mathematical calculation but

the amount recoverable depends upon life expectancy of legal representative

beneficiaries. In the same period Lord Diploc has evolved Interest Capitalization

method by calculating net pecuniary loss on annual basis and multiplied with

number of years purchase. The Hon'ble Supreme Court of India with the

101

Mishra v. Motor Accident Claims Tribunal, 2006(1) ACC 362. 102 C.K.Subramonia Iyer v. T. Kunhikuttan Nair, AIR, 1970 SC 376

141

development of accident claims has decided the landmark case of General

Manager, Kerala State Road Transport Corporation v. Susamma

Thomas103

has started giving appreciation to the annual income of deceased.

This appreciation ranges to the double of income depending upon the nature of

job, age, future prospects etc. Supreme Court has held that after determining and

doubling annual income, 1/3 should be deducted towards the expenses to be

incurred on the deceased and the remaining amount should be multiplied by a

multiplier depending on the age of deceased and beneficiary. The maximum

multiplier approved by Supreme Court in this case was 16. Later, Supreme

Court's 3 Judges bench have approved the Davis formula along with

determination of dependency on unit basis in which the adults have been taken

as 2 units and the minors has been taken as 1 unit. The multiplier, which was

approved as 16 in Sushma Thomas case, was increased to maximum of 18. In

this case the court did not allow double of the amount except that a premium

may be given looking to the future prospects. But, in a recent Supreme Court

judgment, in order to make compensation just and to take consideration of

overall factors multiplier was reduced from 16 to 12 in case of deceased of 38

years. In same facts and circumstances, in another case Supreme Court has said

for determination of multiplier depends upon (1) age of deceased (2) age of

claimants (3) marital status (4) education and employment of the claimants; and

(5) loss of pecuniary benefits. The Supreme Court has also held that criteria of

awarding compensation include some guess work, some hypothetical

consideration and some amount of sympathy linked with the nature of disability

caused are all involved. But, all such elements are required to be viewed with the

objective standard104

.

103 General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, AIR, 1994SC

1631. 104 Ibid.

142

In view of the above case laws, one can say that the assessment of compensation

is to be guided by way of applying precedents on the facts and circumstances of

a particular case. It should not be misunderstood that an injured or legal

representatives of the deceased should be given exorbitant claim, but the law

restrict them to be "just compensation" so as to save the injured or legal

representatives of deceased from possible pecuniary and non-pecuniary losses

guided by the above judgments.

I. Impleadation of Insurer in Certain Cases

Section 170 of the Act provides for impleadation of insurer in certain cases.

Where in the course of any inquiry, the Claims Tribunal is satisfied that there is

collusion between the person making the claim and the person against whom the

claim is made or the persons against whom the claim is made has failed to

contest the claim, it may, for reasons to be recorded in writing, direct that the

insurer who may be liable in respect of such claim, shall be impleaded as a party

to the proceeding and the insurer so impleaded shall thereupon have, without

prejudice to the provisions contained in sub-section (2) of section 149, the right

to contest the claim on all or any of the grounds that are available to the person

against whom the claim has been made105

.

In Manful v. Mehmood106

it was held that strict rules of evidence are not

applicable to proceedings before the Tribunal and it is to be prima facie

established that accident took place with a motor vehicle and injury caused or

resulted into death of the victim.

Section 170 of the Act has also contemplated an additional situation wherein the

insurer has to be necessarily impleaded and for that an occasion arises only when

105

The Motor Vehicles Act, 1988, Section 170 106

Manful v. Mehmood, 2005 (1) ACC 765

143

the Claims Tribunal gets satisfied that the claimant and the owner of the vehicle

are in collusion or where the owner or driver has not contested the claim and as

regards the former, it is unusual for the tribunal to smell any such collusion and

it is only the insurer who has to make such application and satisfy the tribunal by

adducing evidence that there has been a collusion between the claimant and the

insured owner of the vehicle. On the tribunal being satisfied, it shall allow the

insurer to take over the entire defence, raise all such pleas as be available to the

owner- insured, and such pleas shall, then be in addition to the statutory defences

available to or already taken by the insurer under section 149 (2).

In National Insurance Co. Ltd. v. Anjana Shyami107

it was held that unless

tribunal has permitted the insurer to contest the claim on all or any other grounds

that are available to persons against whom the claim had been made, application

under section 170 is not maintainable.

J. Award of Interest Where Any Claim is Allowed

Section 171 of the Act empowers the Claims Tribunal to order that simple

interest at such rates as it thinks fit shall also be paid along with the award of

compensation.

Where any Claims Tribunal allows a claim for compensation made under this

Act, such Tribunal may direct that in addition to the amount of compensation

simple interest shall also be paid at such rate and from such date not earlier than

the date of making the claim as it may specify in this behalf108

.

107

National Insurance Co. Ltd. v. Anjana Shyami, 2001 (2) AJR 523 108

The Motor Vehicles Act, 1988, Section 171

144

K. Award of Compensatory Costs in Certain Cases

Section 172 of the Act seeks to empower the Claims Tribunal to award special

compensatory costs where in certain cases it is found that there has been mis-

representation of case or vexatious to claims or defence.

Any Claims Tribunal adjudicating upon any claim for compensation under this

Act, may in any case where it is satisfied for reasons to be recorded by it in

writing that the policy of insurance is void on the ground that it was obtained by

representation of fact which was false in any material particular or any party or

insurer has put forward a false or vexatious claim or defence such Tribunal may

make an order for the payment, by the party who is guilty of misrepresentation

or by whom such claim or defence has been put forward of special costs by way

of compensation to the insurer or, as the case may be, to the party against whom

such claim or defence has been put forward109

.

No Claims Tribunal Shall pass an order for special costs under sub section (1) of

section 172 for any amount exceeding one thousand rupees110

.

No person or insurer against whom an order has been made under this section

shall, by reason thereof be exempted from any criminal liability in respect of

such mis-representation, claim or defence as is referred to in sub-section (1) of

section 172111

.

Any amount awarded by way of compensation under this section in respect of

any mis-representation, claim or defence, shall be taken into account in any

109 Ibid., Section 172 (1) 110 Ibid., Section 172 (2) 111 Ibid., Section 172 (3)

145

subsequent suit for damages for compensation in respect of such mis-

representation, claim or defence112

.

L. Tribunals Jurisdiction to Set Aside Award Procured by Fraud

In Oriental Insurance Company Ltd. v. R. Mani113

since fraud affects the

solemnity, regularity and orderliness of the proceedings of the court and also

amounts to an abuse of the process of court, the courts have been held to have

inherent powers to set aside an order obtained by fraud practiced upon the court.

Similarly, where the court is misled by a party or the court itself commits a

mistake which prejudices a party, the court has the inherent jurisdiction to recall

its order.

It was held that where an award had been obtained on basis of a fabricated

policy, the commissioner of workmens compensation, was empowered to

reopen the case if allegation of fraud was sustainable114

.

In National Insurance Co. Ltd. v. Murti Devi115

, where a fraud was committed

on the insurer which had not been taken note of by the tribunal while passing its

award. The fraud perpetrated by the claimants had come to the knowledge of the

insurer even while proceedings were before the tribunal, yet the insurer had not

filed an application under section 170 of the Motor Vehicles Act, for obtaining

an order