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2008 DIGILAW 2232 (RAJ)

Durga Devi v. Dhanna Lal Garhwal

2008-09-23

GUMAN SINGH

body2008
JUDGMENT 1. - With the consent of learned counsel for both the parties, the appeal is being finally disposed of at admission stage.Heard. 2. This appeal has been preferred by mother of the deceased Virendra Kumar aged 21 years, against the Award passed by the Motor Accident Claims Tribunal, (Additional District Judge) (Fast Track No. 7), Jaipur City, Jaipur, in claim case no. 611/2004, whereby claim petition of the appellant claimant was dismissed on the ground that deceased was driving motor cycle and the accident occurred on account of his negligence, though claim was filed under Section 163A of the Motor Vehicles Act. 3. Brief facts of the case are that on 29.4.2001, deceased Virendra was going on his motor cycle No. RJ 14-25-M-6026 from Chaura Rasta towards Tripolia Bazar and on way a cow came in between and the motor cycle mot with an accident resulting to injuries to Virendra and Ultimately he succumbed to the injuries after 11 days of the incident. 4. Learned counsel for the appellant submits that though the Tribunal has assessed the compensation at the gate of Rs. 1,94,500/- under Issue No. 4 but dismissed the claim petition on the ground that the deceased Virendra, who was driving motor cycle was at fault and as such the compensation could not be awarded. Learned counsel for the appellant relied upon judgment of the Hon'ble Apex Court reported in (2007)5 SCC 431, Oriental Insurance Co. Ltd. v. Meena Variyal and others on the point that when a claim petition is filed under Section 163-A, the Tribunal is not required to go into the negligence of the victim. Learned counsel submitted that the appeal deserves to be allowed and the claimant deserves to be awarded compensation as determined by the learned Tribunal. 5. Per contra, learned counsel for the respondents supplied the judgment of the Tribunal on the ground that the learned Tribunal has passed the award in view of evidence adduced during inquiry and the same calls for no interference. 6. In view of the above submissions and on perusal of the Award as well as the record of the case, it is revealed that the claim petition was filed by the dependents of deceased Virendra under Section 163A of the Motor Vehicles Act. 6. In view of the above submissions and on perusal of the Award as well as the record of the case, it is revealed that the claim petition was filed by the dependents of deceased Virendra under Section 163A of the Motor Vehicles Act. On going through the issue framed by-the Tribunal, it is further revealed that no issue pertaining to negligence was framed by the Tribunal but inspite of that while discussing the Issue No. 3 pertaining to preliminary objection made by the Insurance Company regarding the liability of the Company, the learned Tribunal found that the deceased was driving motor cycle at the time of accident, is held to be negligent and dismissed the claim under Section 163-A of the Motor Vehicles Act. Special Provision has been made for payment of compensation on the basis of structural formula provided in II Schedule of the M.V. Act and this Section begins with non-obstante clause and over rides this Act or any other law for the time being in force and makes the owner of the vehicle or the authorised insurer liable to pay compensation in case of death or permanent disablement due to accident arising out of the motor vehicle. Sub-clause (ii) of the Act further provides that claimant was not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or the vehicles concerned or of any other person. 7. Hon'ble Apex Court in Deepal Girishbhai Soni and others v. United India Insurance Company, 2004(1) WLC (SC) Civil 598 : (2004) 5 S.C.C. 385 , has held that Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of Social Justice has been duly taken care of. 8. In this case the learned Tribunal has erred in going into the issue.of negligence, which was not required to be gone into in view of provisions of Section 163A and as such the finding on Issue No. 3 deserves to be set-aside and the appeal deserves to be allowed and as per the finding of the Tribunal on Issue No. 4, the claim petition of the appellant deserves to be decreed for Rs. 1,94,500/-. 1,94,500/-. 9. Accordingly, finding of the Tribunal on Issue No. 3 is set-aside and the appellant claimant is awarded a sum of Rs. 1,94,500/- payable jointly and severally by the respondents by way of compensation with 6% interest p.a. from the date of petition, within a period of three months from today and thereafter with future interest at the rate of 9% p.a.Appeal allowed. *******