Emami S/o Roshan Khan vs Nand Kishore Gupta S/o Pyare Lal Gupta

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.

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.

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.

Non-claimaint/respondent No. 3 Insurance Company

opposed the claim petition by filing reply thereto, with usual

objections and prayed to dismiss the claim petition.

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 claimaint/appellants have preferred this

appeal.

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.

In support of his contentions, learned counsel for the

appellants placed reliance on : The United India Insurance

Company Ltd. versus Smt. Rekha & Ors. reported in 2007 (5)

WLC ( Raj. ) 366.

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.

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. 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.

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. 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.

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.

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.

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.

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.

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.

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.

17.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.