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2010 DIGILAW 236 (CHH)

Ishwari Bai v. Rajendra Kumar Dewangan

2010-10-04

I.M.QUDDUSI, NAWAL KISHORE AGARWAL

body2010
JUDGMENT : N.K. Agarwal, J. List is being revised. Case called out. No one is present for the respondent. Heard finally. Order dictated in open court. M.A. Nos. 362 and 363 of 2010 are being disposed of by this common order as both the appeals arise out of the same accident. These appeals have been preferred against award dated 13.1.2010 passed by the Twelfth Additional Motor Accidents Claims Tribunal, Durg in Claim Case Nos. 76 and 77 of 2009 dismissing the claim petitions. 2. Brief facts of the case are as under : (i) On 7.5.2006 appellant No. 2 was going from Bilaspur to Bhilai in Indica car bearing registration No. CG 12-6352 and his two children, namely, Deepak and Ashish were sitting with him in the car. The appellant No. 2 was himself driving the car. At about 4.45 p.m. near Bhojpur turn Indica car dashed a stationary truck bearing registration No. UP 75-A 5631, as a result of which Deepak and Ashish died due to the injuries sustained in the said accident. The mother and the father who was also driving Indica car have preferred claim application claiming compensation of Rs. 6,75,000 and Rs. 7,50,000 for the death of Deepak and Ashish respectively, against the owner of Indica car, respondent No. 1 and owner of the truck, respondent No. 2, by filing two separate claim petitions u/s 163A of the Motor Vehicles Act, 1988 (briefly 'the Act'). (ii) In the written statement filed by respondent No. 1, it was pleaded that the driver was in drunken condition. He had taken the vehicle with the consent of his mother. Offence under sections 304A, 279 and 337 of the Indian Penal Code in Crime No. 103 of 2006 was registered against the appellant No. 2 in Police Station Hirri which is pending. It was further pleaded that the appellant No. 2 was himself responsible for the accident. They have filed claim petitions by suppressing material facts. Therefore, the claim petitions being not maintainable deserve to be dismissed. (iii) Both the parties led evidence. (iv) Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed, dismissed the claim petitions on the ground that the claimants have failed to prove their claim. 3. We have perused the record of the Tribunal. Therefore, the claim petitions being not maintainable deserve to be dismissed. (iii) Both the parties led evidence. (iv) Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed, dismissed the claim petitions on the ground that the claimants have failed to prove their claim. 3. We have perused the record of the Tribunal. Important questions which arise for decision-making in the instant appeal are : (i) Whether a person, who steps into the shoes of the owner, can maintain claim petition u/s 163A of the Motor Vehicles Act, 1988? (ii) Whether a person who himself was negligent in driving the vehicle would be entitled to compensation u/s 163A of the Act? 4. Learned counsel for the appellants would not dispute the fact that the appellant No. 2 was not carrying his two sons in Indica car bearing No. CG 12-6352 at the time of accident in the capacity of an employee, i.e., driver of the vehicle and, in fact, he borrowed the vehicle from the owner to bring his wife and two sons from Bilaspur. Appellant No. 2 was not owner of the motor vehicle in question. He borrowed the said vehicle from its real owner. He cannot be held to be an employee of the owner of the vehicle, although he was authorised to drive the vehicle by its owner and, therefore, he would step into shoes of the real owner of the vehicle. 5. Chapter XI of the Motor Vehicles Act, 1988 deals with the insurance of motor vehicles against third party risks. By section 146 of the Act, it was made necessary for the user of a motor vehicle in public place to have a policy of insurance against third party risks. Section 147 describes the requirements of policies and limits of liability of such statutory policies. Section 149 mandates the insurers to satisfy judgment and awards against persons insured in respect of third party risks. Section 163A provides special provision as to payment of compensation on structured formula basis. Section 165 empowers the State Government to constitute one or more Motor Accidents Claims Tribunals to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles or damages to any property of a third party so arising or both. Section 165 empowers the State Government to constitute one or more Motor Accidents Claims Tribunals to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles or damages to any property of a third party so arising or both. A brief analysis of the above provisions would reveal that Claims Tribunals have been constituted for the purpose of adjudicating upon the claims for compensation in respect of accident involving the death of or bodily injury to a third party arising out of the use of the motor vehicle. 6. Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others (2008) 5 SCC 736 , held that section 163A of the Motor Vehicles Act, 1988, cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved. It was further held that the liability u/s 163A of the Act is only on the owner of the vehicle since a person cannot be both, a claimant as also a recipient, the heirs of the deceased could not have maintained a claim in terms of section 163A of the Act. 7. Undisputedly, the appellant No. 2 was not the owner of Indica car. He borrowed the car from its real owner. He cannot be held to be an employee of the owner of Indica car although he was authorised to drive the said vehicle by its owner and, therefore, he would step into the shoes of the owner of the car. 8. In a case wherein the victim died or where he was permanently disabled due to the accident arising out of the aforesaid motor vehicle, in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be, as provided u/s 163A of the Act. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same was on him as held by Hon'ble Apex Court in Ningamma and Another Vs. United India Insurance Co. Ltd. (2009) 13 SCC 710 . 9. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same was on him as held by Hon'ble Apex Court in Ningamma and Another Vs. United India Insurance Co. Ltd. (2009) 13 SCC 710 . 9. Here in the instant case, the deceased are the sons of the appellant No. 2 who stepped into the shoes of the owner of Indica car and could not have claimed compensation u/s 163A of the Act. The deceased also cannot be termed as third party being the sons of the deemed owner of the vehicle at the time of accident. 10. For the above reasons, in our considered opinion, the claim petition filed by the appellants u/s 163A of the Act is not maintainable against the real owner of Indica car. 11. However, in order to appreciate the second question regarding maintainability of the claim petition u/s 163A of the Act by a person who himself was negligent, it would be appropriate to reproduce section 163A of the Act which reads thus: 163-A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.-For the purposes of this sub-section, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be 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 vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time, amend the Second Schedule. 12. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time, amend the Second Schedule. 12. Section 163A of the Act has been brought into the Motor Vehicles Act, 1988 by Act 54 of 1994 by way of a social security scheme to provide for a new predetermined structured formula for payment of compensation to the motor accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in the said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. The above provision has been analysed in the case of Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385 , in which Hon'ble Supreme Court has held in paras 42 and 66 as under : (42) Section 163A was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000 having regard to the fact that in terms of section 163A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in column Nos. This together with the other heads of compensation as contained in column Nos. 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of the victims who would require the amount of compensation without fighting any protracted litigation for proving that accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle. (66) We may notice that section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, 'under the provision of the Act', 'provisions of this Act', 'under any other provisions of this Act' or 'any other law or otherwise'. In section 163A, the expression 'notwithstanding anything contained in this Act or in any other law for the time being in force' has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. 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. 13. In view of the law laid down by the Hon'ble Apex Court in the above referred case, it would be crystal clear that section 163A of the Act covers the cases where even negligence is on the part of the victim or the claimant. It is by way of an exception to section 166 of the Act and the concept of social justice has been duly taken care of. 14. The Division Bench of Karnataka High Court in Oriental Insurance Co. Ltd. Vs. Smt. Salma and Others, (2008) ACJ 1197 placing reliance upon the above quoted Supreme Court decision, held that the petition u/s 163A of the Act is maintainable even if the negligence is on the part of the victim. 14. The Division Bench of Karnataka High Court in Oriental Insurance Co. Ltd. Vs. Smt. Salma and Others, (2008) ACJ 1197 placing reliance upon the above quoted Supreme Court decision, held that the petition u/s 163A of the Act is maintainable even if the negligence is on the part of the victim. The Division Bench of the High Court of Madhya Pradesh in Ramkanyabai and Others Vs. Unav Transport Co. (P) Ltd. and Others (2007) ACJ 2003, has also taken the same view. 15. Therefore, the claim petition is certainly maintainable against the respondent No. 2 inasmuch as the appellants are third party so far as respondent No. 2 is concerned and their claim petition u/s 163A of the Act is maintainable even in case where the negligence is on the part of appellant No. 2. This aspect of the matter has not been considered by the learned Tribunal. 16. In view of the above, we are of the opinion that the matter requires reconsideration at the end of the Tribunal. 17. Therefore, we allow these appeals in part, set aside the impugned award dated 13.1.2010 and remit the matter back to the Tribunal for decision afresh. The claim petitions shall be restored to their original numbers and they shall be decided in the light of the observations made above. The Tribunal shall afford opportunity to both the parties to adduce evidence and argue their case. 18. The Tribunal shall decide the matter expeditiously. The records of the Claims Tribunal shall be sent back forthwith. Appeals allowed.