New India Assurance Company Ltd. vs Smt. Eblembai Devi And 2 Ors

Heard Mr. R. Goswami, learned counsel for the appellant and Mrs. R.D. Mozumdar, learned counsel for the respondents.

Aggrieved by the judgment and award dated 18/12/2009 passed by learned Addl. District Judge (FTC)-cum- MACT, Sankardev Nagar, Hojai in

MAC Case No. 3/08, the appellant New India Assurance Co. Preferred this appeal.

Learned Tribunal awarded a compensation of Rs. 4,73,000/- in favour of the claimants for death of the husband of the claimant No. 1. Two

vehicles were involved in the said accident and the claim petition was filed u/s 163-A of the M.V. Act. Learned tribunal fixed the responsibility to pay

the compensation on the present appellant being the insurer of one of the vehicle involved in the accident.

Contention of the learned counsel for the appellant is that since admittedly two vehicles were involved, and the accident occurred due to head on

collision of both the vehicles, the learned tribunal ought not to have saddled the responsibility with the appellant alone being the insurer of one of the

vehicle to satisfy the award.

The admitted facts in this appeal are that the son of the respondents/claimants was traveling in the vehicle bearing registration No. AS-02-9248 on

the fateful day. The said vehicle collided head on with another vehicle bearing registration No. AS 1229 and as a result of the accident, the son of the

claimants died. The present appellant was the insurer of the bus No. AS-1229, in which the deceased was traveling. Learned counsel for the appellant

submits that the claim petition having been filed u/s 163A of the Motor Vehicle Act, though, the claimants were not under any obligation to prove rash

and negligent driving or fault of the respondents, to get compensation, the liability to satisfy the compensation ought not to have been saddled with the

appellant alone, when admittedly accident occurred due to use of two vehicles.

The contention of the learned counsel Ms. RD Mozumdar is that in a claim u/s 163 A of the MV Act, there was no need to embark upon the

question of fault or rash and negligent driving, and as such, learned tribunal rightly saddled the responsibility with the owner/insurer of the vehicle

bearing registration No. 29248, in which the victim was traveling. Mrs. Mozumdar further contends, referring to expression “accident arising out of

the use of the motor vehicle†appearing in Section 163-A of the M.V. Act, that the award of the tribunal directing the present appellant being the

insurer of the bus, in which the deceased was traveling, did not suffer from any illegality or irregularity, as the accident occurred when the deceased

was using the vehicle insured with the appellant. This argument of Mrs. Mazumdar does not appear to be appealing for the simple reason, that the

accident arising out of the use of the motor vehicle, in my considered view, cannot be understood to mean only the vehicle in which the person

concerned travels at the time of accident. If the expression “accident arising out of use of the motor vehicle†is construed to mean only the

vehicle, which the Vitim uses at the time of accident, what will happen, if a person dies in an accident, due to involvement of a vehicle, which was not

being used by the victim as occupant at the time of accident. Therefore, the expression “use of the vehicle†cannot be restricted to mean the

vehicle, which is used by the victim at the time of accident. In my view, “use of motor vehicle†shall be understood as the vehicle involved in the

accident.

So far as the claim petition under Section 163-A- qua the question of fault is concerned, according to me, there are two aspects- one from the point

of view of the victim and the other from the point of view of the vehicles involved in the accident. It is no doubt true, that in a claim u/s 163-A of the

M.V. Act, the claimant is under no obligation to prove the fault of the respondent. Sub-section (2) of Section 163-A clearly lays down that “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. Therefore, in a claim u/s 163-A of the M.V. Act, claimant need to prove only two things, i.e., (1) death or permanent disablement;

(ii) death and permanent disablement is caused due to use or involvement of the motor vehicle. So far as from the point of view of the claimant or

victim of accident is concerned, once the above two facts are proved, he/she shall be entitled to compensation under the scheme of Section 163-A

M.V. Act.

There is no requirement for the claimant to prove, as to for whose fault the accident occurred. In fact, the question of fault or negligence from the

point of view of the claimant is irrelevant in a claim u/s 163-A of the M.V. Act. In a case of the present nature when admittedly two vehicles were

involved in the accident, tribunal need not go into the question, as to for whose fault the accident occurred. Normally both the vehicles involved in the

accident are liable to pay the compensation and their liability is joint as well as several, so far the payment of compensation is concerned. If in such

cases any issue is raised among the owner/insurer of the vehicles involved, as to the liability and/or any of the vehicle wants to avoid the liability, it is

for them to establish. So far as the claimant is concerned, both the vehicles are jointly and severally liable to pay the compensation and the tribunal

need not enter into the question to decide the extent of liability of the vehicles involved in the accident. The learned tribunal in the present case came

to a finding that the accident occurred due to rash and negligent driving or fault of both the vehicles involved, and as such, logically both the vehicles

ought to have been saddled with the responsibility to satisfy the award fixing joint and several liability.

When only one vehicle is involved in the accident there is no problem. When more than one vehicles are involved, in the accident and any question

arises as to who shall pay the compensation, from the point of view of the claimant he can sue any of the vehicle or both the vehicles. If the conflict

arises between the two vehicles as to who shall pay the compensation and any of the vehicle wants to avoid the liability tribunal needs to look into the

second point of view from the angle of the owner/insurer of the vehicles involved in the accident.

Be that as it may, having considered the facts and circumstances, under which the accident occurred, though the claimant was not required to prove

any fault, the tribunal ought to have held the owner/insurer of both the vehicles jointly and severally responsible.

Learned counsel for the appellant submits that the appellant has already paid the award to the claimant. As both the vehicles are held liable jointly

and severally, in case the appellant desires to recover any portion of the amount from the insurer of the other vehicle, it is at liberty to recover the

same by instituting appropriate proceeding.

The statutory deposit of Rs. 25,000/- made by the appellant shall be returned.

Send back the LCR.