Maimuna Bibi and Others vs Guru Prasad Jaiswal and Another

N.K. Agarwal, J.—This is claimant''s appeal seeking enhancement of compensation awarded by Motor Accidents Claims Tribunal, Ambikapur vide award dated 18-09-1997 in Claim Case No. 26/95. Respondent No. 2/Oriental Insurance Company Limited has also preferred cross-objection. As against the compensation of Rs. 7,75,000/- claimed by the appellants/claimants by filing application u/s 166 of the Motor Vehicle Act, 1988 (for short the Act) for the death of Mohd. Shamim in the motor accident dated 28.07.1995 the Tribunal has awarded a total sum of Rs. 60,000/- along with interest at 12% per annum from the date of application till its actual payment.

The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligent driving of Truck bearing registration No. M.P. 27B-0715 by decease himself; respondent No. 2/Oriental Insurance Company Limited liable for payment of compensation; awarded Rs. 60,000/- as compensation along with 12% per annum from the date of application till its actual payment, holding the respondents jointly and severally liable for its payment.

Shri Shakti Raj Sinha, Learned Counsel appearing for the appellant would submit; the accident had occurred due to mechanical breakdown of the vehicle, for that, the deceased Mohd. Shamim cannot be held responsible; the Tribunal has fallen in error in holding deceased Mohd. Shamim responsible for the accident; and in declining compensation u/s 166 of the Act.

On the other hand, Shri Suryakant Mishra, Learned Counsel for respondent No. 2/the Oriental Insurance Company Limited while supporting the Tribunal''s finding regarding negligence of the deceased in the said accident, has assailed the award of Rs. 60,000/- passed by the Tribunal inter alia on the ground: as the deceased himself was responsible for the accident, the Tribunal should have confined its award to the extent of Rs. 50,000/- u/s 140 of the Act in place of Rs. 60,000/- and the award deserves to be suitably reduced from Rs. 60,000/- to Rs. 50,000/-.

We have heard Learned Counsel for the parties and perused the award impugned including the record of the Tribunal.

Section 166 of the Act of the provides for fault-based liability and negligence of the driver or the owner has to be proved before the owner of the vehicle or insurance company can be held liable for payment of compensation in a motor accident claim case. Proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application u/s 166 of the Act.

The Supreme Court, in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, , has held: proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application u/s 166 of the Act. Where an accident occurs to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third/party, the driver would be liable to pay compensation therefore. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to Section 147(2) of the Act is mandatory in character, the insurance company would statutorily be enjoined to indemnify the owner. The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance.

It is also trite law, in a claim filed u/s 166 of the Act, if it is found as of fact the deceased or the victim himself was responsible for the accident, the claim filed u/s 166 of the Act is liable to be dismissed.

The Supreme Court, in the case of Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, while analyzing Section 140, 163-A and 166 of the Act, has observed in paras 59 and 60 as under:

The question may be considered from different angles. As for example, if in the proceedings u/s 166 of the Act, after obtaining compensation u/s 163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefore as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part of the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials conies to the conclusion that no case has been made out for awarding the compensation u/s 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof?

The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceeding u/s 163-A of the Act of interim in nature.

However, Section 140 of the Act carves out an exception. By reason of sub-section (1) of Section 140 of the Act, the absolute liability is cast upon the owner of a vehicle to pay compensation in respect of death or permanent disablement resulting from an accident arising out of its use. By reason of sub-section (3), the claimant is not required to plead or establish that the death or disablement was due to a wrongful act or neglect or default of the owner or any other person.

Sub-section (4) is in two parts. The first part states that a claim for compensation in the section is not defeated by reason of any wrongful act, neglect of default of the person who had died or suffered permanent disablement. The Second part states that the quantum of compensation is not to be diminished even if the person who had died or suffered permanent disablement bore some responsibility for his death of disablement. On a plain reading of Section 140 of the Act, particularly, the first part of sub-section (4) thereto, it is crystal clear the claim for compensation u/s 140(1) of the Act 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.

Now, reverting to the facts of the case. Its was not the case of claimants that owner was negligent in maintaining the vehicle or accident had occurred due to any fault or negligence on the part of the owner in not maintaining the vehicle properly. The first information report was also lodged against deceased Mohd. Shamim. No evidence was led by the appellant showing fault or negligence on the part of the owner of the vehicle. Therefore, the finding of the Tribunal that deceased himself was negligent in the accident, cannot be found fault with. Thus, in fact, the appellants/claimants are entitled for compensation of Rs. 50,000/- as envisaged u/s 140 of the Act but the Tribunal has awarded Rs. 60,000/- as compensation. However, in the absence of statutory appeal preferred against the award by respondent No. 2/insurance company on the basis of cross-objection, we do not deem if fit to reduce the amount of compensation awarded by the Tribunal.

For the reasons mentioned hereinabove, the appeal as well as cross-objection are liable to be and are hereby dismissed. No order as to costs.