Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 269 (GAU)

National Insurance Co. Ltd. v. Smti Asha Shyam

2015-03-04

MICHAEL ZOTHANKHUMA

body2015
Heard Mr. P.B. Paul, learned counsel for the appellant. Mr. Arenlong submits on behalf Mr. B. Devnath that Mr. B. Devnath is unable to appear due to medical treatment and prays for adjournment of the matter for some time. The prayer is rejected on the ground that this matter was taken up on 02-03-2015 wherein, case laws relating to the application of Section 166 of M.V Act, 1988 was considered. It was prayed on that day by Ms. Zhevi Swu that the matter may be listed again on 04-03-2015. As the present case is squarely covered by the judgments of the Supreme Court and the judgments of this Court, I do not find any reason to delay the matter any longer. 2. The case in brief is that the husband of the respondent No. 1, Lachit Shyam along with the pillion rider Henino Rengma who were riding on a motorcycle met with an accident on 12-09-2009 while proceeding from Silonijan to Dimapur. The motorcycle bearing Registration No. AS-05/D-0168 (TVS Motorcycle) was owned by Mr. Dilip Nath. The wife of Lachit Shyam i.e the claimant respondent No. 1 filed a claim petition in the MACT, Dimapur which was registered as MAC Case No. 14/2010 under Section 166 read with 140 M.V Act, 1988. The learned Member, MACT, Dimapur vide its judgment and order dated 27-03-2014 took the income of the deceased at Rs. 4000/- p.m and by applying the Second Schedule of the M.V Act, 1988, the total compensation amount payable by the Insurance Company to the claimant was assessed at Rs. 5,91,000/-, which includes the no fault liability of Rs. 50,000/- as per Section 140 of the M.V Act. 3. The Insurance Company/appellant being aggrieved by the judgment and order dated 27-03-2014 passed in MAC Case No. 14/2010 has filed the present appeal on the following grounds, amongst others :- (i) the learned Tribunal has failed to take into consideration that the petition under Section 166 of the M.V Act, 1988 is not maintainable in absence of proving negligence of the driver (ii) the learned Tribunal has failed to take into consideration that the claimants having filed the claimant petition under Section 166/140 of the M.V Act, 1988, the claimant have to prove negligence for claiming compensation under Section 166 of the M.V Act (iii) that no evidence was given by the police 4. A perusal of the evidence shows that there was no eye witness to the said accident. The evidence also shows that this is not a case of the said motorcycle having been hit by any other vehicle or the said motorcycle having hit some other vehicle or person. The evidence adduced only shows that the deceased driver Lachit Shyam and the pillion rider fell from the motorcycle. The learned Tribunal in Issue No. 2 has stated that the relevant exhibit MVI specifically reported that the cause of the accident was due to sudden brake failure of the motorcycle and the same was unforeseen and thereby the driver of the motorcycle lost control and met with the accident resulting in the death of the driver Lachit Shyam. The learned Tribunal has also stated that the said loss of control of the motorcycle has led the Tribunal to be convinced that there was no contributory negligence on the part of the deceased driver for the cause of the accident. The said MVI report has been exhibited as Exhibit P-3. However, a perusal of the Exhibit P-3 shows that the said MVI report has been allegedly made by an Assistant Executive Engineer. However, the Department to which the said Assistant Executive Engineer belongs is not known. The said Assistant Executive Engineer has not been examined by the Tribunal and as such, the said MVI report dated 15-01-2009 which is exhibited as Exhibit P-3 cannot be used as evidence by the learned Tribunal. Even assuming that the Exhibit P-3 is to be used as evidence, the question of fault liability has to be established by the learned Tribunal against some person. The learned Tribunal was in error in implying/holding that the fault liability can be assigned to an alleged brake failure. The fault liability under Section 166 M.V Act can be assigned only to a person and not to an inanimate object. The only fault that can be attributed in the present case is to the driver of the motorcycle or the pillion rider who fell off from the motorcycle and not to any other person as no evidence has been adduced by any of the parties to show that some other person had caused the said accident. However, there is no evidence that the pillion rider was at fault. 5. However, there is no evidence that the pillion rider was at fault. 5. The Apex Court and this Hon’ble Court have passed various judgments and orders to the effect that when a claim petition is filed under Section 166 read with 140 of the MV Act, 1988, fault has to be proved by the claimant. Unless fault liability can be proved under Section 166, the claim is not maintainable and the claimant is not entitled to get any compensation under Section 166. In the event the claimant makes any claim under fault liability under Section 166 of the MV Act, 1988 then the income of the deceased or the injured has to be calculated as per the Second Schedule of the M.V Act, 1988. Income above Rs. 40,000/- per annum as given in the Second Schedule cannot be claimed under Section 163-A. 6. In the present case, the learned Tribunal has taken the income of the deceased as Rs. 4000/- p.m which comes to Rs. 48000/- annually. In any event, the claimant having made an application for compensation under Section 166/140 of the M.V Act, the claimant has to prove that there was fault on the part of some other person due to which the accident occurred. However, as stated in the foregoing paragraphs, the accident has occurred only due to the fault of the deceased driver. The evidence adduced shows that no other person can be attributed as having committed fault due to which the accident occurred. Also the police, the owner of the motorcycle and the person who gave MVI report have not been examined to prove if there was any wrongful act, neglect or default of the owner. The Supreme Court in the case of Oriental Insurance Co. Ltd-versus- Meena Variyal and Others, reported in (2007) 5 SCC 428 at paragraph 27 has held thus :- “ 27. The Supreme Court in the case of Oriental Insurance Co. Ltd-versus- Meena Variyal and Others, reported in (2007) 5 SCC 428 at paragraph 27 has held thus :- “ 27. We think that the law laid down in Minu B. Metha.v. Balkrishna Ramchandra Nayan was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163-A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a 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 the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (10 of Section 163- A of the Act, 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 concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. The Supreme Court in the case of Surender Kumar Arora and nother-versus- Manoj Bisla and Others, reported in (2012) 4 SCC 552 had also held in paragraph 9 as follows:- “ 9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that Respondent 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident.” 7. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that Respondent 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident.” 7. In view of the fact that as per the evidence adduced before the learned Tribunal, the cause of the accident could only be attributed to the driver of the motorcycle i.e Lachit Shyam and as such, the compensation payable to the claimant wife of the deceased Lachit Shyam can be awarded only as per the no fault liability of Rs. 50,000/- under Section 140 of the M.V Act, 1988. The fault, negligence or default of some other not having been proved as required under Section 166 of the M.V Act, compensation beyond Rs. 50,000/- and under Section 166 of M.V Act cannot be awarded. 8. Accordingly, the judgment and order dated 27-03-2014 passed by the learned Member, MACT, Dimapur in MAC Case No. 14/2010 is hereby set aside and quashed to the extent that the Insurance Company shall be liable to pay only Rs. 50,000/- under Section 140 of the M.V Act, 1988 as no fault liability. The fault of the owner or any other person for causing the accident has not been proved in the evidence adduced before the learned Tribunal 9. Accordingly, the appeal is allowed to above extent. The amount of Rs. 2,45,500/- submitted by the Insurance Company to the Registry shall be returned to the Appellant.