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2017 DIGILAW 431 (RAJ)

Emami v. Nand Kishore Gupta

2017-02-07

DINESH CHANDRA SOMANI

body2017
JUDGMENT : Dinesh Chandra Somani, J. 1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the claimants against the judgment dated 25.04.2009 passed by Judge, Motor Accident Claims Tribunal, Tizara, District Alwar, Rajasthan (hereinafter referred to as "the Tribunal") in Claim Petition No. 51/2008 Emami & Ors. versus Nand Kishore Gupta & Ors., whereby, the learned Tribunal has dismissed the claim petition filed by the claimants under Section 163-A of the Act, for lack of jurisdiction. 2. Background facts are that the claimant-appellants made the claim application under Section 163-A of the Act of 1988 with the averment that on 21.06.2007 at about 2-2.30 PM, the deceased Sahid was proceeding on tractor bearing No. RJ-02/R 5642 from Guwalda Mod (turn) to Tapukada in right direction at a controlled speed but suddenly the vehicle-tractor run over the stones on a road and became imbalanced, due to some technical fault in the vehicle and the deceased-Sahid came underneath the said vehicle. Sahid died on the spot due to the injuries sustained by him in the accident. The claimants sought compensation in the sum of Rs. 20,00,000/- while filing the claim petition with averment that the deceased-Sahid was 35 years of age and he was earning Rs. 3,000/- per month. It is also averred that at the relevant time, non-claimant/respondent No. 1 was registered owner of the tractor, non-claimant respondent No. 2 was Mukhtiyar Khas of the tractor and the vehicle was insured with non-claimant/respondent No. 3. It is also averred that an FIR bearing No. 182/2007 was lodged in Police Station Tapukada and after investigation police filed final report in the court having jurisdiction. 3. Non-claimant/respondent No. 1 & 2 filed reply of the claim petition, stating therein that the accident occurred due to rash and negligent driving of the deceased himself, therefore, claimants are not entitled for any compensation and prayed to dismiss the claim petition. 4. Non-claimant/respondent No. 3 Insurance Company opposed the claim petition by filing reply thereto, with usual objections and prayed to dismiss the claim petition. 5. After completion of the pleadings of the parties, the learned Tribunal framed as many as five issues. Claimants examined three witnesses. Non-claimants did not produce any evidence. After recording evidence and hearing the parties, the learned Tribunal passed the impugned judgment while dismissing the claim petition. 5. After completion of the pleadings of the parties, the learned Tribunal framed as many as five issues. Claimants examined three witnesses. Non-claimants did not produce any evidence. After recording evidence and hearing the parties, the learned Tribunal passed the impugned judgment while dismissing the claim petition. Being aggrieved with the impugned judgment dated 25.04.2009, the claimant/appellants have preferred this appeal. 6. Learned counsel for the appellants submitted that instead of considering the case on merits, learned Tribunal has dismissed the claim petition summarily merely on technical ground of jurisdiction, whereas, the learned Tribunal had jurisdiction to hear and decide the claim petition of the appellants, on merit. Learned counsel also submitted that the finding of the learned Tribunal is contrary to the settled legal position. Learned counsel further submitted that none of the opposite party had disputed the death of Mr. Sahid in the accident occurred on 21.06.2007, while driving the tractor, which was having valid insurance cover from non-claimant/respondent No. 3. Moreover, the driver of the vehicle, the deceased-Sahid was having valid driving license. Thus, there was no ground to dismiss the claim petition, even then, the learned Tribunal has dismissed the claim petition on non-existing and technical ground of maintainability of the claim petition and thereby committed serious error of law. 7. In support of his contentions, learned counsel for the appellants placed reliance on : The United India Insurance Company Ltd. versus Smt. Rekha & Ors., 2007 (5) WLC(Raj.) 366. 8. On the other hand, learned counsel for the non-claimant/respondents supported the impugned judgment and prayed to dismiss the appeal being devoid of substance. 9. From perusal of impugned judgment, it reveals that the learned Tribunal has observed that claimants did not produce any eye witness of the accident. The deceased-Sahid himself was driving the tractor, which run over on stones and turned turtle, thereby, Sahid came underneath the tractor and died due to the injuries sustained by him in the accident. Learned Tribunal also observed that after investigation, the police filed final report holding that Mr. Sahid himself was negligent and responsible for the alleged accident. Learned Tribunal further observed that the present case is not a third party claim and the tractor was insured, therefore, the claimants should have approached the Insurance Company directly by filing a claim petition. Learned Tribunal also observed that after investigation, the police filed final report holding that Mr. Sahid himself was negligent and responsible for the alleged accident. Learned Tribunal further observed that the present case is not a third party claim and the tractor was insured, therefore, the claimants should have approached the Insurance Company directly by filing a claim petition. It was also observed that in case, the claim petition is not accepted by the Insurance Company, then, the claimants would be entitled to file a complaint before Consumer Court. The learned Tribunal also observed that the Tribunal has no jurisdiction as this is not a third party claim, and decided the issue No. 1 against the claimant/appellants. Without any discussion on the evidence produced by the claimants in respect of other issues, the learned Tribunal has dismissed the claim petition, as indicated hereinabove. 10. Relevant provisions in the Act of 1988 for disposal of this appeal are 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 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 purpose 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.] 167. (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.] 167. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. 11. It is not in dispute that on 21.06.2007 at about 2-2.30 PM a Farm Tak tractor bearing registration No. RJ-02/R 5642 was driven by the deceased-Sahid, which turned turtle and Sahid came underneath the said tractor. It is also not in dispute that driver of the tractor, Sahid died on the spot due to the injuries sustained by him in the accident. It is admitted fact that at the relevant time non-claimant/respondent No. 1 was registered owner of the vehicle, and the vehicle was insured with non-claimant/respondent No. 3 Insurance Company. Therefore, in view of the provision of Section 167 of the Act, the claim petition filed by the claimants is well within the jurisdiction of the Tribunal and it may hear and decide the petition in accordance of law. 12. In United India Insurance Company Ltd. versus Smt. Rekha & Ors. (supra), Coordinate Bench at Jodhpur while interpreting the provisions of Section 163-A, 140, 147 and 149 of the Act, 1988, has observed that Section 163-A of the Act, covers cases even where, deceased was himself negligent. It is by way of an exception to Section 166 and the concept of Social Justice has been duly taken care of. Provisions of Section 163-A of the Act have their effect overriding other provisions of the Act. Coordinate Bench also observed that the Insurance Company can resist the claim only on the ground of no contract at all, i.e. no insurance. This is not the case of the Insurance company that the vehicle in question was not insured with it or that the insurance was not in force at the relevant time. Thus, it is clear that the claimants can maintain the claim petition for compensation under Section 163-A of the Act. 13. This is not the case of the Insurance company that the vehicle in question was not insured with it or that the insurance was not in force at the relevant time. Thus, it is clear that the claimants can maintain the claim petition for compensation under Section 163-A of the Act. 13. According to claimants, the deceased was driving the tractor in the employment of non-claimant/respondent No. 1, therefore, the claimants can file the claim petition for the compensation under the Workmen's Compensation Act, 1923, as also under the Motor Vehicles Act, 1988 before the learned Tribunal, but not under both statutes, as provided under Section 167 of the Act. It is at the option of the claimants to choose either of the forums. 14. In view of the discussions made above, the learned Tribunal has jurisdiction to hear and decide the claim petition filed by the claimant/appellants under Section 163-A of the Act. The observation of the learned Tribunal that the claimants should have filed complaint before Consumer Forum, is contrary to the settled legal position because the deceased and/or his Legal Representatives cannot be treated as consumer by any stretch of imagination. The claimants have rightly preferred and legally filed the claim petition before the learned Tribunal, therefore, the appeal deserves acceptance. 15. In view of the above, this Court is of opinion that the learned Tribunal is not correct in dismissing the claim petition for lack of jurisdiction. The claim petition filed by the claimant/appellants is maintainable before the learned Tribunal and the same needs to be adjudicated afresh. Issues framed, have not been adjudicated by the Tribunal. 16. Consequently, the appeal is allowed and the impugned judgment is quashed. The matter is remanded back to the learned Tribunal for disposal afresh in the light of observations made above, after giving opportunity of hearing to both parties. Since the accident took place in the year 2007, learned Tribunal is directed to dispose of the matter expeditiously. The parties are directed to remain present before the learned Tribunal on 21.03.2017. No costs.