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Himachal Pradesh High Court · body

2014 DIGILAW 1262 (HP)

Oriental Insurance Company Ltd. v. Dharmo

2014-09-12

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. (Oral). This appeal has arisen out of the award rendered on 04.10.2008, by the Motor Accident Claims Tribunal, Fast Track Court, Chamba in MAC Petition No.35 of 2008/2007, whereby the learned Tribunal awarded compensation to the respondents/claimants in the sum of Rs.3,77,000/- along with interest @ 7 ½% per annum from the date of the filing of the petition till its realization. The burden of compensation, as determined in favour of the respondents/claimants, was laid upon the insurer of the offending vehicle, who is the appellant before this Court. 2. The appellant/insurer is aggrieved, by the learned Tribunal, having laid the burden of compensation on it. The learned counsel for the appellant has canvassed before this Court that the award of the learned Motor Accident Claims Tribunal is ingrained with an illegality inasmuch as the owner of the vehicle, who was enjoined to be impleaded as a party in the array of the respondents in the petition, as mandated by Section 163-A of the Motor Vehicles Act, 1988, inasmuch as the liability to defray the amount of compensation as assessed by the learned Tribunal was initially to be fastened upon him and thereafter the owner was to be indemnified by the insurer, consequently, omission on the part of the petitioner to array the owner of the offending vehicle as a respondent in the petition has defacilitated the aforesaid process and caused infraction of the mandate of Section 163A of the Act. As a corollary, it is contended that the Award rendered against the appellant/insurer be set aside as nonest 3. Even, if there is a valid insurance qua the offending vehicle executed by the insurer/appellant, it acquired legal force only in the face of, also the owner of the vehicle being impleaded as a party in the array of respondents, in the instant petition instituted under Section 163-A of the Act, as on his being arrayed as a respondent the mandate enshrined in Section 163-A of the Motor Vehicles Act, 1988, provisions thereof are extracted hereinbelow, contemplating the arraying of the owner of the vehicle as a respondent for initially fastening the liability upon him as determined by the Motor Accident Claims Tribunal and then the owner being ordered to be indemnified by the insurer, would come to be complied. “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 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 any other person. (3) …………………………………….” However, in the face of non-impleadment of the owner of the vehicle within the contemplation of and within the ambit of Section 163-A of the Act, compliance thereof has not emerged as is evident from a perusal of memo of parties of the award as rendered by the learned tribunal. This Court may have been constrained to cure the aforesaid infirmity by remanding the matter to the learned Motor Accident Claims Tribunal, Fast Track Court, Chamba for facilitating an opportunity to the claimants to move an appropriate application before it for impleadment of the owner. What constrains this Court to do so, is the factum that the owner of the vehicle having since expired and his legal heirs being the claimants, obviously then in face thereof it is to be concluded that the claim petition is not maintainable under Section 163-A of the Motor Vehicles Act, rather the petition is to be filed under Section 166 of the Motor Vehicles Act, 1988. In coming to the above conclusion, I am supported by the judgments of the Hon’ble Apex Court in Oriental Insurance Company Limited versus Rajni Devi and others, (2008)5 SCC 736 and Ningamma and another versus United India Insurance Company Limited (2009)13 SCC 710 . 4. For the foregoing reasons, the appeal is allowed and the impugned award of 4.10.2008 passed by the learned Motor Accident Claims Tribunal, Fast Track Court, Chamba in MA.C. No. 35 of 2008/2007 is set aside. 4. For the foregoing reasons, the appeal is allowed and the impugned award of 4.10.2008 passed by the learned Motor Accident Claims Tribunal, Fast Track Court, Chamba in MA.C. No. 35 of 2008/2007 is set aside. However, liberty is granted to the claimants to file a petition under Section 166 of the Act before the Motor Accident Claims Tribunal in accordance with law. No costs. Records be sent back forthwith.