Jagdeshwari Devi And Other vs Oriental Insurance Co. Ltd

Sharad Kumar Sharma, J

The present Appeal from Order has been preferred by the claimants questioning the veracity of the Award rendered by the Motor Accident Claims Tribunal/7th Additional District Judge, Dehradun in M.A.C.T. case No 20 of 2014, 'Smt. Jagdeshwari Devi and others Vs. Oriental Insurance Company Ltd'.

The brief facts which are essential required to be considered for adjudicating this Appeal from Order which has been preferred under Section 173 of the Motor Vehicle Act, 1988 is that the deceased Mr. Chandra Mohan, who was travelling in his Nano Car bearing registration No. UK09A 2269 had met with an accident on 29.11.2012, as consequence thereto, the car-in-question fell into the gorge and it is resulted into the death of late Chandra Mohan.

As per pleadings which were raised before MACT in the claim petition that an accident occurred on account of their being collusion with another unknown car which hit the car of the husband of the deceased and on account of that accident the Car fell into gorge and hence they have contained that since at the time of accident occurred her husband was working as a painter and was having an income of Rs.10,000/- per month and thus they have claimed for the payment of the damages to the tune of Rs.56,20,000/- along with the interest of 9% from the date of the application. The said claim petition was opposed by the insurance company on the ground that the claim petition deserves to be rejected because the owner of the vehicle which was involved in the accident was not made as a party to the claim petition and the claim deserves to be rejected in view of the provisions contained under Section 149(2) of the Motor Vehicles Act.

The ground which was taken by the insurance company, was that since in the absence of third party being made as a party to the claim petition, the claim petition deserves to be rejected. He has submitted that in view of the provisions contained under Section 64 VB of the Insurance Act, its absolutely progative of the respondents to have raised the claim for a counter claim had the vehicle being involved in the accident. Another plea which was raised by the insurance company was with regards to the implications which was claimed for the provisions under Section 158(6), which he contends that provisions contained therein was not followed. After the exchange of the pleadings, the Motor Accident Claim Tribunal framed the following issues:-

1- क्या दिनांक 29-11-12 को समय लगभग 19:30 बजे स्थान पंगराखाला पटटी गाजा रोड टिहरी में मृतक की कार संख्या यूके09ए2269 पर किसी अज्ञात वाहन से टककर मारने से आई चोटों के कारण उसकी मृत्यु हुई?

2- क्या मृतक द्वारा चलाया जा रहा वाहन बीमा पालिसी की शर्तो के अनुरूप चलाया जा रहा था?

3- क्या याची की याचिका पक्षकारों के असंयोजन से दूषित है?

4- क्या याचीगण को विपक्षी के विरूद्ध कोई वाद कारण प्राप्त है?

5- क्या याची विपक्षी से किसी अनुतोष को प्राप्त करने के अधिकारी हैं?

The factum of accident which has chanced on 29.11.2012 was not disputed by any of the parties to the appeal and simultaneously it has not also been disputed that as a consequence to the accident which was occurred on 29.11.2012, the husband of the claimant No.1 and father of claimant Nos.2 and 3 have met with the sad demise. Only the question which arises for consideration is as to whether the accident occurred on account of mistake/negligent of the owner of the vehicle of Car who himself was driven the vehicle and another question which falls for consideration as to whether the claim which has been preferred under Section 156 of the Act will fell to be our claim petition which deserves its determination under Section 163A of the Act.

However, the Motor Accident Claim Tribunal while considering the rival contention very vaguely while dealing with issue No.5 had recorded the finding to the effect that the claim petition would fall to be within the provisions contained under Section 140 of Motor Vehicles Act, 1988 and it awarded an amount of Rs.50,000/- to be paid as compensation to the claimant. Section 140 of Motor Vehicles Act, 1988 provides and deals with the determination of the liability of the compensation where the owner of the vehicle himself jointly and separately is liable for the accident which is has resulted into death and disabled manner.

According to the implication contained, under the provisions contained under Section 140 of the Act whereas on the contrary looking to the circumstances of the case and as pleaded, this Court is of the view that the claim petition of the claimant would fall to be within the scope of consideration under Section 163(A) as it has been the consisting case that the cause of accident was not because of the rash and negligent driving of the owner of the vehicle met with an accident but rather on account of collusion with a unknown vehicle on the date of accident. Section 163(A) reads as under:-

"163 - A. Special provisions as to payment of compensation on structured formuala 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 of 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 purposes 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.]"

The language which has been used therein it starts with non of senate clause that none of which has an implication that non of the other provision contained under the act would create a bar in computation of the compensation which would be payable to the claimants of the deceased or disabled persons as indicated in the second schedule of the Motor Vehicle Act. As far as attracting of Section 140 is concerned, this Court is of the confirmed opinion that the Motor Accident Claim Tribunal fell into error attracting the said provisions without their being anyone case which was pleaded before the Tribunal to be following under Section 140 and furthermore because the impugned award itself does not record any findings as such to bring the case in question based on rival contention raised by parties to be following under Section 140 of the Motor Vehicle Act.

Learned counsel for the respondent had placed reliance on the judgment rendered by the Co-ordinate Bench of this Court as rendered in Appeal from Order No.272 of 2010, 'Oriental Insurance Company Vs. Smt. Rameshwari Devi and another' wherein the Coordinate Bench of this Court while concluding the judgment has provided that the owner of the vehicle who driving the car and he met with the accident, the appellant/insurance company would be liable to pay the compensation to the tune of Rs.2.00 lakhs only under the no fault liability clause but the said case there was entirely factual backdrop which was involved wherein the vehicle which was given by the owner of Car had fell into gorge on account of their being rains and the vehicle had skipped into the gorge. In this case, the provisions and rational which has been applied by the Court was based upon the circumstances on that individual case and hence it is since factually being distinct then to the instant case, the same would not applied.

As far as present Appeal from Order is concerned since the determination which has been made by MACT with regards the quantum of the compensation it was in the light of provisions contained under Section 140 and that too when under the circumstances of the case at hand that was not applicable, it would be rendered the award dated 23.01.2015 itself reiterated, in that way of the matter, in order to get an appropriate determinations of the controversy with regards to the accident being caused on account of collusion of the car or husband of the applicant no.1 with another unknown vehicle the compensation deserves to be considered in the light of provisions contained under Section 163 A.

It has been argued by learned counsel for the respondent that the burden to prove the circumstances under which the accident has chanced, was required to be proved by the claimant that the accident was caused because of the collusion with the other vehicle, the fact in this case is, as already dealt with the above, at the time of accident, the Car was driven by the deceased was travelling alone and it would be burden to be discharged by the circumstances prevailing and other surrounding the evidences which has resulted into the accident in question.

Being having not considered those circumstances, the Court had applied Section 140 without determining the actual controversy as involved in the instant case. Consequently, this Court is of the view that the Appeal from Order deserves to be allowed and the same is allowed and the award dated 23.01.2015 was quashed and the matter is remitted back to the MACT to re-determination the compensation in the light of the provisions contained under Section 163-A. Since the accident happens to be of 2012 and at that time there was dependency of two minor children with a young widow of 31 years of age, this Court taking a compensate view expects that MACT would conclude wit the proceedings after remand within a period of four months from the date of presentation of the certified copy of this order.

Subject to the above observations, the appeal from order is allowed.