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2018 DIGILAW 15 (JK)

New India Assurance Co. Ltd. v. Razia Begum

2018-01-29

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In this Civil Ist Miscellaneous Appeal preferred under Section 173 of Motor Vehicles Act, the appellant has assailed the validity of the judgment/Award dated 14.02.2011 passed by the Motor Accident Claims Tribunal, Jammu in Claim No.553/Claim whereby the compensation to the tune of Rs.50,000/- (Rupees Fifty thousand only) was awarded in favour of respondent Nos.1 to 3. 2. The facts leading to filing of this appeal briefly stated are that respondent Nos.1 to 3 filed a claim petition under Section 166/140 of Motor Vehicles Act before the MACT, Jammu for grant of compensation on account of the death of Shri Sadar Din, who had died in a road traffic accident on 04.09.2009 near Sidhra while driving the commercial vehicle bearing registration No.JK02AD-8457. Since the deceased who himself was the registered owner of the said vehicle had died in the accident while driving the said vehicle, except for the appellant company, no other persons was arrayed as respondent in the claim petition. The appellant company after its service filed objections to the claim petition by taking various defences available to it. One of the specific defence raised by the appellant company in its objections was that the deceased himself being the registered owner and insured of the vehicle involved in the accident, did not fall in the definition of third party and therefore, the claim petition filed by respondent Nos.1 to 3 was not maintainable under the Motor Vehicles Act and deserves to be dismissed. It is further stated that the Motor Accidents Claims Tribunal, Jammu vide its order dated 14.02.2011 accepted the plea of the appellant company and dismissed the claim petition under Section 166 of the M.V.Act. However, while dismissing the petition under Section 166 of M.V. Act, the Tribunal granted compensation of Rs.50,000/- to the respondents no.1 to 3 under Section 140 of the Motor Vehicles Act and directed the company to satisfy the same within 30 days from the date of receipt of the copy of the order, failing which, interest @ 7.5% per annual shall be charged. The appellant company being aggrieved of the order impugned challenges its legality, validity and correctness on the following amongst other grounds:- (a) That the order impugned is ex facie bad, contrary to the facts of the case and law on the point and the same therefore, deserves to be set aside. The appellant company being aggrieved of the order impugned challenges its legality, validity and correctness on the following amongst other grounds:- (a) That the order impugned is ex facie bad, contrary to the facts of the case and law on the point and the same therefore, deserves to be set aside. (b) That Chapter XI of the Motor Vehicles Act provides for the insurance of Motor Vehicles against third party risk. Section 147 of the Act provides for the requirements of the policies and limits of the liability. Under Sections 147 &148 of the M.V.Act, the Insurance Company is liable to indemnify the insured owner in respect of death or bodily injury caused to a third party by the use of the vehicle. In the present case, the deceased being the insured owner of the offending vehicle, did not fall in the definition of the third party and therefore, the claim petition was required to be rejected at the threshold. The Tribunal agreed with the contention of the appellant company that the deceased being the insured owner did not fall in the definition of third party and therefore, dismissed the claim petition under Section 166 of the M.V.Act. Once the tribunal held that the deceased was not a third party and the petition under Section 166 of the M.V.Act was not maintainable, no award under Section 140 of M.V.Act could have been passed against the appellant company. The Tribunal, therefore, by passing the interim award of Rs.50,000/- in favour of the claimants and against the appellant company has erred in law and the award impugned therefore deserves to be set aside. (c) That the finding of the tribunal below while allowing the award under Section 140 of M.V.Act vide the order impugned that legislature in its wisdom did envisage granting of compensation in such cases by having enacted Section 140 of the M.V.Act irrespective of whether deceased died because of his own negligence or that he was the owner of the vehicle, his dependants would be entitled to compensation on principle of no fault liability is totally misplaced. Section 140 of M.V. Act does not provide for granting any relief to the dependants of the deceased owner of the offending vehicle. It was not the question of negligence or no negligence but the important issue of maintainability of the petition under Motor Vehicles Act was raised by the appellant company. Section 140 of M.V. Act does not provide for granting any relief to the dependants of the deceased owner of the offending vehicle. It was not the question of negligence or no negligence but the important issue of maintainability of the petition under Motor Vehicles Act was raised by the appellant company. The tribunal once held that the petition under Section 166 of M.V. Act was not maintainable as the deceased was not a third party; the Tribunal had no jurisdiction to grant any compensation under Section 140 of the M.V. Act. It is only when the petition under Section 166 of M.V. Act is maintainable; the tribunal has the power to pass the award under Section 140 of the M.V. Act as interim relief to the victims of the accident. The order impugned is thus wholly illegal and deserves to be set aside. (d) That the law is well settled that the role of the Insurance Company is to indemnify the insured owner of the offending vehicle. In the present case, since the insured owner himself had died in the accident while driving the offending vehicle, none had been arrayed as respondent in the claim petition in the capacity of owner of the offending vehicle. In the absence of any person having been arrayed as party respondent in the claim petition except the Appellant Company, there was none whom the appellant company could have been directed to indemnify. On this score alone, the order impugned is bad in the eyes of law and the same therefore, deserves to be set aside. 3. I have considered the arguments and gone through the law on the subject. 4. By its award dated 14.02.2011, the Motor Accident Claims Tribunal, Jammu has held as under: “There is another aspect also that makes petitions under Section 163-A not maintainable for the reason that under Section 163-A of M.V.Act, a structured formula of competition has been given whereby the income of deceased or victim as the case may be, has been capped at Rs.40,000/- PA whereas, as per the own showing of the present claimants, deceased was earning more than Rs.10,000/- PM, so it would be very difficult for them to run away from such admission even if they restricted their claim vis-à-vis income of Rs.40,000/- PA. But deceased being the owner of the vehicle his dependents would not be entitled to claim compensation. But deceased being the owner of the vehicle his dependents would not be entitled to claim compensation. So petitioners herein are not entitled to claim compensation arising out of death of deceased, neither under Section 166 nor under Section 163-A of the M.V.Act. But the Legislature in its wisdom did envisage granting of compensation in such cases by having enacted Section 140 of M.V. Act which irrespective of whether deceased died because of his own negligence or that he was the owner of the vehicle, his dependents would be entitled to compensation under Section 140 of M.V. Act which is based on the principle of no fault liability. Hence petition under Section 166 of M.V.Act is dismissed but that under Section 140 of M.V. Act is allowed. Since the vehicle was insured with respondent No.1-New India Assurance Company, it is thus burdened with liability to pay compensation of Rs.50,000/- to the petitioner on the basis of “no fault liability” under Section 140 of the Act which shall be satisfied by respondent-New India Assurance Company Ltd within a period of 30 days from the date of receipt of copy of this order failing which interest at the rate of 7.5% PA shall be charged. Petition is disposed of accordingly.” 5. Learned counsel for the respondents in support of his arguments has relied upon the judgment of the High Court of Kerala at Ernakulam in case titled Remya C and others vs Rajin and another, reported in 2017 ACJ 2048. 6. Section 140 of the MV Act reads as under : “140. Liability to pay compensation in certain cases on the principle of no fault.— (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees]. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees]. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]” 7. It is admitted fact that deceased Sardar Din himself was not only registered owner of offending JKO2AD/8457, but was also driving the same on 4.9.2009, the day of occurrence. So he was himself as tort feaser. The claim petition u/s 166 of M.V.Act was thus not maintainable. 8. In Remya C and others vs Rajin and another, reported in 2017 ACJ 2048, it was held as under: “Whether the legal representatives of the wrong doer (rider of the motor cycle) are entitled to get compensation under Section 140 of the Motor Vehicles Act 1988 (in short, ‘the Act')?The appellants are legal heirs of deceased Sajeev who died in an accident on 15.5.2014 at 6.45 am at Pachakkil bye pass. Their case is that on 15.5.2014 at 6.45 am, the deceased was riding a motor cycle, KL 53 B 9092 from Velliparamba to Cherarambalam. When he reached at Pachakkil bye pass junction, due to mechanical defect, the vehicle slipped and hit on a concrete post, thereafter capsized, as a result, he sustained serious head injury. Immediately, he was removed to Medical College Hospital. While undergoing treatment, he succumbed to the injuries. Subsequently, the legal heirs preferred O.P(MV) No.155 of 2015 before MACT, Kozhikode. 2. The insurance company admitted the policy and contended that the accident was due to negligence of the MACA 1884/2016 2 deceased himself and hence the legal heirs are not entitled to claim for any compensation. In the trial court, Ext.A1 to A3 were marked. After analysing the documents, the claim under section 140 of motor vehicle act (for short, 'MV Act') was dismissed by the Tribunal. Being aggrieved by that, they preferred this appeal. 3. The liability under section 140 of MV act is to pay compensation on the basis of no fault liability. When death or permanent disablement of any person has resulted from an accident, arising out of the use of a motor vehicle, or motor vehicles, the owner of the vehicle shall or as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement. According to section 140 of the MV Act, in respect of a death, the amount shall be fixed at Rs.50,000/- and in respect of permanent disablement, the amount shall be fixed at Rs.25,000/-. It is specifically stated that in a claim under section 140(1) of the MV Act, the claimant shall not be required to plead and establish that death or permanent disablement in respect of which such claim has been made was due to any wrongful act, neglect or default of the owner MACA 1884/2016 3 or owners of the vehicle or vehicles concerned. Ext.A1 is the F.I.R and Ext.A2 is the Postmortem certificate. Ext.A2 shows that death was caused due to the head injuries sustained in the accident. 4. A Division Bench of this court in New India Insurance Co.Ltd V. Parameswaran ( 2005(4) KLT 343 ) held as follows:- "4. Ext.A1 is the F.I.R and Ext.A2 is the Postmortem certificate. Ext.A2 shows that death was caused due to the head injuries sustained in the accident. 4. A Division Bench of this court in New India Insurance Co.Ltd V. Parameswaran ( 2005(4) KLT 343 ) held as follows:- "4. Under S.140 of the Act, liability to pay compensation is absolute when the death or permanent disablement of any person is arising out of the use of a motor vehicle. Irrespective of the negligence, there is no necessity for the claimant to plead or establish that the death or permanent disablement was due to the wrongful act or negligent act of the owner of the vehicle. No-fault liability under S.140 is created by the Statute is outside the law of tort and there is no necessity to enter into an enquiry that who was the wrong- doer. This is a substantive right accrued and the liability is incurred on the date of the accident and not on the date of consideration of the claim. So, the accidental death of the driver of the jeep occurred during the use of the vehicle by the owner and, in turn, the insurance company is liable to pay compensation under S.140. Therefore, the Tribunal was right in awarding compensation under MACA 1884/2016 4 S.140 and direction to pay the above with interest by the insurance company. Direction to pay interest is also fully justified as amount due under S.140 was not made in time and there is erosion of money value due to passage of time. 5. Apex Court in Indira Devi and others V. Bhagadha and another (AIR 2010 SC 2919) held that compensation under section 140 of M.V Act is regardless of any wrongful act, neglect or default of any person in respect of whose death, the claim is made. It was held in the above decision as follows:- "The impugned direction is clearly erroneous and unsustainable in law. The Tribunal has completely failed to realize the true nature and character of the compensation in terms of Section 140 of the Act. The marginal heading to Section 140 describes it as based ' on the principle of no fault'. As the expression 'no fault' suggests the compensation under Section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made". The marginal heading to Section 140 describes it as based ' on the principle of no fault'. As the expression 'no fault' suggests the compensation under Section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made". Normally no fault liability is made at the threshold of the proceedings. This statutory liability is created ignoring the principle of law of tort and a substantive right incorporated under the Motor Vehicles Act. It is specifically stated that in a claim under section 140(1) of the MV Act, the claimant shall not be required to plead and establish that death or MACA 1884/2016 5 permanent disablement in respect of which such claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned. The payment of compensation is made as an interim award. Ignoring the statutory direction, the Tribunal dismissed the claim under section 140 of MV Act, which is inhumane. The Insurance Company is directed to pay Rs.50,000/- under section 140 of MV Act within a period of 30 days from today. Appeal is disposed of as above.” 9. In view of above law, I do not find any merit in this appeal, it is dismissed accordingly. Award deposited, if any, shall be released in favour of claimants.