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Allahabad High Court · body

2021 DIGILAW 1510 (ALL)

United India Insurance Co. Ltd. v. Niyamatullah

2021-12-07

J.J.MUNIR

body2021
JUDGMENT : 1. This case was directed to be listed in the additional cause list vide order dated 02.12.2021, but it has appeared in the daily cause list. Nevertheless, it is on the day's list and is, accordingly, taken up. 2. Heard Mr. T.J.S. Makker, learned counsel for the appellant and Mr. Anshul Baranwal appearing on behalf of the respondents. 3. The appellant was a driver of a truck bearing Registration No. UP 77 A 7454. He was employed to operate the said vehicle by one Mangali Prasad Gupta, who was the owner of the truck. On 15.05.2013, he was plying the vehicle between Sitapur and Kanpur. When the truck was somewhere about the Police Station-Hasanganj in District-Unnao, a wild animal suddenly jumped onto the road. The driver endeavoured to save the animal, which led him to collide with another truck. The accident led the driver to suffer serious injuries. He sustained fractures to both his lower limbs and presumably to his spine (described in vernacular as 'kamar'). He was rushed to the Medical College at Lucknow. The driver remained admitted to the hospital from 29.05.2013 to 05.06.2013. By the time, he preferred this claim, he was still undergoing treatment. It was pleaded that as a result of the accident, he was completely handicapped. One of his legs was amputated above the knee and now, he is not fit to do any work in consequence of the injuries that he sustained. He suffered mentally, physically and economically, besides the heavy medical expenditure that the treatment entailed. It is on the foot of the aforesaid facts that the petitioner instituting Claim Petition No. 334 of 2013 under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act'). 4. Shorn of unnecessary detail, it must be recorded that the owner of the truck, who was impleaded as opposite party no. 1 to the claim petition, denied the accident as also his liability. It is further pleaded that the vehicle was insured with the New India Insurance Co. Ltd., who were impleaded as opposite party no. 2 to the claim petition. 5. The Insurance Company, on their part, denied all the assertions in the claim petition. It was further asserted that the claim was, in any case, exaggerated and brought on facts that were concocted. The registration certificate, permit, fitness of the vehicle etc. Ltd., who were impleaded as opposite party no. 2 to the claim petition. 5. The Insurance Company, on their part, denied all the assertions in the claim petition. It was further asserted that the claim was, in any case, exaggerated and brought on facts that were concocted. The registration certificate, permit, fitness of the vehicle etc. were questioned with the assertion that if all those documents were not in order, the insurance company would not be liable, in any case. The validity of the driver's licence was also put in issue. 6. The Tribunal, after framing as many as seven issues and answering each, on the basis of the evidence on record, found for the driver and against the owner as well as the Insurance Company. By the impugned judgment and award, the claim was decreed for a sum of Rs.6,23,292/- with 7% simple interest, payable annually from the date of presentation of the petition, till realization. 7. Aggrieved, the present appeal has been preferred by the Insurance Company. 8. The only ground urged in support of the appeal by Mr. T.J.S. Makker is that the claimant being the Driver of the truck that met with the accident was a tortfeasor and could not capitalize on his own fault or negligence by preferring a claim petition under Section 163-A of the Act. He places reliance on the decision of the Supreme Court in National Insurance Company Ltd. vs. Sinitha vs. Others, (2012) 2 SCC 356 , where it has been held: "27. Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163-A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163-A of the Act. The object for incorporating sub-section (2) in Section 163-A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The object for incorporating sub-section (2) in Section 163-A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub section (4) of Section 140 of the Act from Section 163-A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163-A of the Act is founded on the "fault" liability principle. 33. From the preceding paragraphs (commencing from para 22), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163-A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163-A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner." 9. Mr. Anshul Baranwal has submitted that the law in National Insurance Company Ltd. vs. Sinitha and Others (supra), is no longer good law in view of the subsequent three-Judge Bench decision of their Lordships of the Supreme Court in United India Insurance Co. Ltd. vs. Sunil Kumar and Another, (2019) 12 SCC 398. 10. In United India Insurance Co. Ltd. vs. Sunil Kumar and Another (supra), a three-Judge Bench, of their Lordships has answered a question referred by a two-Judge Bench, for decision by a larger Bench, disagreeing with the principle in National Insurance Company Ltd. vs. Sinitha and Others (supra). In United India Insurance Co. Ltd. vs. Sunil Kumar and Another (supra), the question referred was noted thus : "1. Unable to agree with the reasoning and the conclusion of a two judge bench of this Court in National Insurance Company Limited vs. Sinitha and others, (2012) 2 SCC 356 , a coordinate bench of this Court by order dated 29th October, 2013 has referred the instant matter for a resolution of what appears to be the following question of law. "Whether in a claim proceeding under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") it is open for the Insurer to raise the defence/plea of negligence?" 11. The question was answered in United India Insurance Co. Ltd. vs. Sunil Kumar and Another (supra), which is as under: "..........8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163 A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, 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. In fact, to understand Section 163-A of the Act to permit the Insurer to raise the defence of negligence would be to 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. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163-A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim." 12. The view in United India Insurance Co. Ltd. vs. Sunil Kumar and Another (supra) has been followed by a subsequent three-Judge Bench in Shivaji and Another vs. Divisional Manager, United India Insurance Co. Ltd. and Others, AIR 2018 SC 3705 . 13. The view in United India Insurance Co. Ltd. vs. Sunil Kumar and Another (supra) has been followed by a subsequent three-Judge Bench in Shivaji and Another vs. Divisional Manager, United India Insurance Co. Ltd. and Others, AIR 2018 SC 3705 . 13. In view of the aforesaid position of law, that has now come to be settled, this Court is of the opinion that the impugned award is not open to be assailed on the ground that the claimant was a tort-feasor or one guilty of negligence on his part, and, therefore, could not maintain a petition under Section 163-A of the Act. 14. No other point was pressed. 15. Therefore, this appeal fails and stands dismissed. There shall be no order as to costs. 16. The compensation deposited with the Tribunal shall be disbursed to the claimant, forthwith.