The Jammu and Kashmir and Ladakh High Court recently comprising of a bench of Justice Rahul Bharti observed that compensation which is paid under the ‘No Fault Liability’ provision is adjustable in the compensation claim as provided under Section 166 of the Motor Vehicles Act, 1988 for fault liability. (Bajaj Allianz General Insurance Co. Ltd Vs Gulshan Kumar and Ors)
Facts of the case
Respondent nos. 1 to 3 filed a claim petition before the Motor Accident Claims Tribunal, Rajouri for seeking compensation with respect to road accident death of Yashpal who came to be hit by the offending vehicle driven by respondent no. 5 on 17.12.2016 resulting in the death of the said accident victim Yashpal.
The claim petition came to be filed in which the offending driver came to be impleaded as respondent no. 1 whereas the owner of the offending vehicle as respondent no. 2 and the insurer of the offending vehicle as respondent no. 3.
Motor Accident Claims Tribunal, Rajouri passed an interim award dated 15.02.2018 by reference to section 140 of the Motor Vehicles Act, 1988 thereby granting an award of interim compensation of an amount of Rs.50,000/- on account of 'No Fault liability' in favour of the respondent nos. 1 to 3 herein and the compliance of the said interim award was to be carried out by the appellant herein as being the insurer of the offending vehicle.
It was against this interim award dated 15.02.2018 of the Motor Accident Claims Tribunal, Rajouri that the appellant came forward with the present appeal on the ground that without considering documents placed on the record of the claim petition, the Motor Accident Claims Tribunal came to pass the impugned award.
It was the case set up in appeal that the deceased-Yashpal was, in fact, a gratuitous passenger in the offending vehicle driven by the respondent no. 5 herein and, as such, the dependents of the deceased, the respondent nos. 1 to 3 herein were not entitled to any compensation whatsoever from the appellant’s end as being the insurer of the offending vehicle.
Courts Observation and Judgment
The bench at the very outse observed, "The appellant in its memo of appeal has not disputed the fact of being the insurer of the offending vehicle, the ownership of the offending vehicle with the respondent no. 4 and the driver of the offending vehicle by the respondent no. 5 and of his competence to drive the said vehicle."
The bench further observed, "It is only by factual reference that the deceased was not a roadside walker but in fact a gratuitous passenger that the appellant is seeking to avoid its liability. Whether the nature of this defence can be set up by the appellant to avoid the grant of interim compensation on No Fault liability provision by the Motor Accident Claims Tribunal is a very feeble plea as then in every case whenever and wherever an insurer would take up a different factual position qua the motor vehicle accident, then in that eventuality, the Motor Accident Claims Tribunal will be rendered disabled to award compensation on No Fault liability under section 140 of the Motor Vehicle Act, 1988, rendering the very spirit and policy of section 140 as still provision without any operationality therein."
The bench dismissing the appeal noted, "Any compensation made under the No Fault liability provision is adjustable in the compensation claimed fault liability under section 166 of the Motor Vehicles Act, 1988 and in case the appellant would succeed in proving its defence with respect to the nature of the accident in reference in the present case then the Motor Accident Claims Tribunal, Rajouri will be under a jurisdictional duty to consider as to application of Pay and Recover Principle against the owner and the driver of the offending vehicle and, as such, the present appeal is pre-mature and misconceived, as such, the same is dismissed in the light of the observations made herein."
Case Title: Bajaj Allianz General Insurance Co. Ltd Vs Gulshan Kumar and Ors.
Citation: Mac App No. 115/2021
Coram: Justice Rahul Bharti
Counsel For Petitioner: Mr Baldev Singh
Counsel For Respondent: Ms Rozina Afzal.
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