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2019 DIGILAW 460 (HP)

ICICI Lombard General Insurance Company v. Anita

2019-04-24

TARLOK SINGH CHAUHAN

body2019
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The present appeal arises out of the award passed by the learned Motor Accident Claims Tribunal-II, Chamba, District Chamba, H.P. on 17.07.2018. 2. Claimants-Respondents No.1 to 5 filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short 'Act') for grant of compensation on account of death of Mohinder Singh in an accident of vehicle No. HP 57 4836 (Maruti Car) which had taken place on 20.12.2005 at around 11.15 a.m. at place near Jot, Tehsil Chowari, District Chamba. 3. By the impugned award, the learned Tribunal awarded a sum of Rs.4,58,300/- with interest at the rate of 7.5% per annum. 4. The insurer has preferred this appeal on the ground that since the deceased himself was driving the vehicle under the influence of liquor and, therefore, being rash and negligent, the claim petition at his instance was not maintainable. 5. However, the moot question is whether such a plea in fact is available to the Insurance Company i.e. the appellant. This issue is no longer res integra and is covered by the judgment of three Hon'ble Judges of the Hon'ble Supreme Court in United India Insurance Co. Ltd. versus Sunil Kumar and another, (2017) AIR SC 5710 wherein it was held that to permit a defence of negligence to the claimant by the insurer and/or to understand Section 163-A as contemplating such a situation, would be inconsistent with the legislative object behind the introduction of this provision which is "final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time." 6. The Hon'ble Supreme Court further observed that if an insurer was permitted to raise a defence of negligence under Section 163-A of the Act, it would "bring a proceeding under Section 163-A of the act at par with the proceeding under Section 166 of the Act, which would not only be self- contradictory, but also defeat the very legislative intention." 7. Consequently, it was held that in a proceeding under Section 163-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter the claim for compensation. 8. Consequently, it was held that in a proceeding under Section 163-A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter the claim for compensation. 8. The legal position has thereafter been reiterated by another Bench of three Hon'ble Judges of the Hon'ble Supreme Court in Shivaji and another versus Divisional Manager, United India Insurance Co. Ltd. and others, (2018) AIR SC 3705 : 2018 ACJ 2161 . 9. Therefore, no fault can be found with the award passed by the learned Tribunal as the same in turn is based on the judgment rendered by the Hon'ble Supreme Court in Sunil Kumar's case (supra). However, it needs to be clarified that reliance placed by the learned Tribunal on the judgment of this Court in Khem Chand versus Uma Devi, 2010 Latest HLJ 1 (HP) is totally misplaced as the Court therein was dealing with a third party insurance and not under Section 166 of the Act and was not adjudicating a claim filed under Section 163-A of the Act. 10. Concededly, the award as passed in this case is entirely based on the judgment rendered by the Hon'ble Supreme Court in Sunil Kumar's case (supra). 11. Therefore, the appeal warrants no interference and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.