Prakash Gehlot vs Pemendra Prajapat and Others

Pratap Krishna Lohra, J.—Appellant-claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ''Act'') challenging the judgment and award dated 29th July 2013 passed by Motor Accident Claims Tribunal (First), Jodhpur, dismissing his claim for compensation.

The brief facts of the case are that appellant laid a claim under Section 163A of the Act before the learned Tribunal claiming compensation for a sum of Rs. 8,05,000, inter-alia, with the averments that on 22.04.2007, while he was riding motorbike bearing Registration No. RJ-19-SE-5139 on Paota ''C'' Road, near Akaswani Bhawan, suddenly from the side lane animals came running and dashed against motorcycle, which resulted in his falling on the ground with motorbike and fracture of his right leg''s femur bone subjecting him to permanent disability. In the claim petition, appellant has averred that at the time of accident he was 42 years old and due to accident he had to remain hospitalized. Alleging that he was earning Rs. 40,000 per annum, under various heads quantified the claimed compensation as aforesaid.

The claim petition was contested by respondent No. 1 owner of motorcycle denying the averments of claim petition for want of knowledge. It was pleaded that the accident occurred due to own fault of the claimant and prayed for rejection of the claim petition. Respondent No. 2 Insurance Company in its return also denied most of the averments of the claim petition and denied its responsibility raising objection about claimant not having valid driving licence at the time of accident. The Insurance Company also prayed for rejection of the claim.

On the basis of pleadings of the parties, learned Tribunal framed three issues for determination. The appellant himself appeared in the witness box and examined Dr. Narendra Singh Yadav in his evidence. He produced 14 documents. While deciding issue No. 1, the learned Tribunal has recorded a categorical finding that the claimant has failed to prove permanent disability from evidence and other materials available on record and has not produced any documents relating to police proceedings as such his claim is not at all tenable. Adverting to Issue No. 2, learned Tribunal has observed that the appellant had borrowed motorbike of non-claimant respondent No. 1 and was plying it at the time of alleged accident and thereby has tried to step into the shoes of owners, therefore, he is not entitled for compensation.

For this conclusion, learned Tribunal has placed reliance on a decision of Hon''ble Apex Court in Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) ACJ 2020 : AIR 2009 SC 3056 : (2009) CLT 1334 : (2009) 8 JT 262 : (2009) 156 PLR 796 : (2009) 8 SCALE 244 : (2009) 13 SCC 710 : (2009) 8 SCR 683 : (2009) 6 UJ 2949 : (2009) AIRSCW 4916 : (2009) 5 Supreme 127 wherein the Hon''ble Court held as under:

"18. In the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, (2008) ACJ 1441 : (2008) 3 CTC 38 : (2008) 152 PLR 381 : (2008) 6 SCALE 638 : (2008) 5 SCC 736 : (2008) 2 UJ 696 , wherein one of us, namely, Hon''ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.

We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA."

Section 163A was enacted by the Parliament for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000 having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The note appended to column I, which deals with fatal accidents, makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.

Thus, it is quite clear that the Parliament by introducing Section 163A in the M.V. Act provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be in a claim made under Subsection (1) of Section 163A of the M.V. Act. In order to prove a claim of this nature the claimant would 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 concerned.

A bare perusal of the Section 163A would make it explicitly clear that the accident as alleged was the result of own wrong of the appellant-claimant as such he is not entitled to derive any benefit under Section 163A and the persons like the claimant in the present case would ipso facto step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be, as is provided under Section 163A. But, if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163A of the M.V. Act. Accordingly, the claimant, who has stepped into the shoes of the owner of the motor vehicle, could not have claimed compensation under Section 163A of the M.V. Act.

Having heard learned counsel for the appellant and on perusal of the record of the entire claim case, in my opinion, the learned Tribunal has not committed any illegality in rejecting the claim of the appellant.

The learned counsel for the appellant-claimant does not dispute that the claimant was driving motorcycle of someone else at the time of accident which took place on Paota ''C'' Road and it is also an admitted fact that the appellant has not been able to prove permanent disability due to accident arising out of the use of motor vehicle, which is a pre-requisite for claiming compensation under Section 163A of the Act of 1988. Moreover, appellant may not be the owner of the vehicle but was driving the vehicle of someone else with his consent, has stepped in the shoes of the owner and as such his claim is not at all tenable as per the verdict of Hon''ble Apex Court in Ningamma''s case (supra). One more important fact is that the occurrence of accident itself is under serious cloud for the reason that it is not the case of the petitioner that any report of the accident was made to the police. The decision relied on by the learned counsel for the appellant-claimant in Insurance Company in National Insurance Company Ltd. Vs. Sinitha and Others, (2012) ACJ 1 : AIR 2012 SC 797 : (2012) 1 RCR(Civil) 205 : (2011) 13 SCALE 84 : (2012) 2 SCC 356 : (2012) 1 TAC 234 : (2012) 1 UJ 60 : (2012) AIRSCW 10 is of no assistance to the appellant claimant in the facts and circumstances of the present case. Thus, I find no infirmity in the impugned award, whereby claim petition of the appellant is dismissed.

Resultantly, appeal fails and is dismissed summarily.