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Rajasthan High Court · body

2013 DIGILAW 2060 (RAJ)

New India Assurance Co. Ltd. v. Sabana Bano

2013-11-21

R.S.CHAUHAN

body2013
JUDGMENT 1. - The appellant, the New India Assurance Company Ltd. is aggrieved by the award dated 21.9.2013 passed by the Additional District & Sessions Judge, No.4 and Motor Accident Claims Tribunal, Jaipur District, Jaipur, whereby the learned Tribunal has awarded a compensation of Rs. 5,18,000/- in favour of the claimants-respondents. 2. The brief facts of the case are that on 9.1.2008, around 10:00 PM, Ahmed along with his two friends, Asfaar Ahmed and Manshad, were going on a motorcycle, bearing Registration No. RJ-14 SE 8876 (the offending vehicle in this case) from Muhana Mandi to their homes. When they were crossing Sonu Kirana Store located at Vaishnav Chamber, Afsaar Ahmed asked Manshad to stop the vehicle as he needed to make a call on his mobile phone. While Afsaar Ahmed was talking on the mobile, suddenly a Mahindra Pick-up truck came, which was being driven rashly and negligently, and hit the motorcycle. Ahmed, who was sitting on the motorcycle, sustained grievous injuries. Although, he was rushed to the SMS Hospital, Jaipur, he expired in the night. Since the claimants lost their sole bread earner, they filed a claim petition before the learned Tribunal. In order to support their case, the claimants examined two witnesses and submitted nine documents. The insurance company, on the other hand, neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal on behalf of the insurance company before this Court- 3. Mr. P.K. Kasliwal, the learned counsel for the appellant has raised the following contentions before this Court- Firstly, the words "use of motor vehicle" contained in Section 163A of Motor Vehicles Act, 1988 ('the Act' in short) need to be interpreted. According to the learned counsel since the motorcycle on which Ahmed was sitting, was stationary at the time of accident, therefore, the motorcycle "was not in use". Hence, the case does not fall within the ambit of 163A of the Act. Secondly, the claimants have failed to prove the negligence on part of driver of the offending vehicle. Hence, the learned Tribunal has erred in granting them the compensation. Hence, the case does not fall within the ambit of 163A of the Act. Secondly, the claimants have failed to prove the negligence on part of driver of the offending vehicle. Hence, the learned Tribunal has erred in granting them the compensation. Thirdly, relying on the case of United India Insurance Company Ltd. v. Sunil Kumar & Anr., Civil Appeal No. 9694 of 2013 (SLP (Civil) No. 7586 of 2012, decided on 29.10.2013 , he has pleaded that the interpretation of Section 163-A of the Act has been referred to a Larger Bench of the Apex Court. Therefore, the impugned award needs to be interfered with. 4. Heard the learned counsel for the appellant and perused the impugned award. 5. As far as the case of Sunil Kumar & Anr. (supra) is concerned, the issue involved in the reference made to the Larger Bench is totally different from the interpretation sought before this Court by the appellant. In the case of Sunil Kumar & Anr. (supra) the issue, which has been referred to the Larger Bench is whether Section 163-A of the Act is based on the "no fault principle" or "on fault principle"? The said issue is not an issue before this Court. The issue before this Court is whether the employment of the "use of motor vehicle" implies that the motor vehicle must be in motion, or would it also include a vehicle which is stationary, but which is being employed for transporting people or things. Thus, the case of Sunil Kumar & Anr. (supra) is not germane to the controversy before this Court. Hence, reliance on the said case is misplaced. 6. Section 163-A of the Act is as under:- "163A. 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 authorized 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. (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." 7. Before we can interpret the phrase "use of the motor vehicle" we need to notice that the relevant words are "due to accident arising out of use of motor vehicle". It is not necessary that an accident would arise out of use of motor vehicle only when the motor vehicle is in motion. An accident can and does occur even when the vehicle is stationary, but is being employed by person(s) for the purpose of transporting either the person himself, or others, or objects. The word "use" cannot be restricted in a narrow circumference. For to do so would be to breach the very spirit of Section 163-A of the Act. Needless to say, Section 163-A of the Act is part of social beneficial piece of legislation. The said section was inserted in the year 1994 in order to bring in no fault concept and in order to deviate from the law of tort, which requires the claimants to first establish the negligence on part of the tortfeasor. It is for this very purpose, that Section 163-A of the Act begins with a long non-obstante clause. The non-onbsante clause clearly declares that "Notwithstanding anything contained in this Act or any in any other law for the time being in force or instrument having the force of law". Thus a non-obstante clause has been used in its widest amplitude. Therefore, to interpret the word "use" to mean only a moving vehicle would violate the very spirit and to raison d'etre for bringing the section into the Act. 8. According to Afsaar, who is an eyewitness, the motorcycle had been parked when another vehicle collided with it. Merely because the motorcycle had been parked would not imply that the motorcycle was not in "use" when the accident occurred. 8. According to Afsaar, who is an eyewitness, the motorcycle had been parked when another vehicle collided with it. Merely because the motorcycle had been parked would not imply that the motorcycle was not in "use" when the accident occurred. After all, if the accident had not occurred, considering the fact that Ahmed and his two friends were trying to return back home, obviously they would have driven off. Thus, the fact that momentarily the motorcycle was parked would not take the case out of ambit and scope of Section 163-A of the Act. 9. Sub-section (2) of Section 163-A of the Act is categorical in stating that the claimants would not be required to plead or to establish that the death was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. Repeatedly, the Hon'ble Apex Court has held that so far as the claimants are concerned, the very concept of their having to prove negligence or default is a concept foreign to the provision of Section 163-A of the Act. Thus, in the present case, the claimants were not required to plead or to prove the negligence on part of the owner of the vehicle concerned or of any other person. Therefore, the contention raised by the learned counsel for the appellant that the claimants have failed to prove so, therefore the claim must fail, is clearly unacceptable. 10. For the reasons stated above, this court does not find any merit in the appeal, the same is, hereby, dismissed.Appeal dismissed. *******