National Insurance Co.Ltd. vs Smt.Brijrani And Another
2022 Latest Caselaw 8815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.07.2022
 
Delivered on 02.08.2022
 
Court No. - 10
 

 
Case :- FIRST APPEAL FROM ORDER No. - 936 of 2000
 
Appellant :- National Insurance Co.Ltd.
 
Respondent :- Smt.Brijrani And Another
 
Counsel for Appellant :- S.K.Mehrotra
 
Counsel for Respondent :- R.K.Porwal
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri S.K. Mehrotra, learned counsel for the appellant and Sri R.K. Porwal, learned counsel for the respondents.

2. This first appeal from order filed under Section 173 of Motor Vehicle Act, 1988 (hereinafter called as ''Act of 1988') arises out of judgment and decree/ award dated 01.04.2000 passed by Motor Accident Claims Tribunal/ VIIth Additional District Judge, Etawah in Motor Claims Petition No. 151 of 1995 awarding Rs.1,57,000/- along with 9% annual interest from the date of judgment till the date of actual payment.

3. Facts in nutshell, are that deceased Jaswant Singh was travelling on Truck bearing number USS-6158 on 28.03.1995 along with his brothers, owner of the truck and the driver to carry peel of acacia tree, when the truck on which the deceased was going met with an accident with another Truck bearing number BHB-3561 coming from the opposite direction. The deceased, Jaswant Singh and his brother sustained severe injuries, and were taken to hospital at Etawah for medical treatment where he succumbed to injuries and unfortunately died on 09.04.1995. The deceased, Jaswant Singh was bachelor and claim petition was filed by his mother, Brijrani and two surviving brothers, Ajab Singh and Charan Singh.

4. The trial court framed following issues:-

"1- क्या दिनांक - 28-3-95 को समय करीब 4.30 बजे सुबह ग्राम- नगला दलप के पास मुगल रोड थाना -इकदिल जिला - इटावा में जसवन्त सिंह ट्रक नम्बर यू०एस०एस०- 6158 में यात्रा कर रहा था ?

2- क्या उक्त दिनांक, स्थान व समय पर ट्रक सं०- बी०एच०बी०- 3561 के चालक की तेजी व लापरवाही से वाहन चलाये जाने के कारण ट्रक सं० यू०एस०एस०- 6158 में टक्कर हुयी, जिसके फल-स्वरुप जसवन्त घायल हो गये और उसके चोटें आई और चोटों के कारण दिनांक- 9-4-95 को उसकी मृत्यु हुयी ?

3- क्या उक्त दिनांक को वाहन सं० यू०एस०एस०- 6158 बीमित था ?

4- क्या दुर्घटना के दिन वाहन सं० यू०एस०एस०- 6158 वैध डी०एल० व रूट परमिट के अधीन नहीं चलाया जा रहा था ?

5- क्या उक्त दुर्घटना ट्रक सं०- बी०एच०बी०- 3561 के चालक की अथवा मृतक की स्वयं की लापरवाही से हुयी ?

6- क्या याचीगण मृतक के क़ानूनी वारिसान है ?

7- क्या याचीगण कोई प्रतिकार पाने के अधिकारी है ? यदि हाँ तो कितना और किस पक्ष से ?"

5. The Tribunal while deciding issue nos. 1 and 2 found that the accident took place on 28.03.1995 at about 4:30 a.m. due to two trucks colliding wherein Jaswant Singh died. While deciding issue nos. 3 and 4, the Tribunal held that the Truck No. USS-6156 was insured and had the fitness certificate and the driver had valid driving license. While deciding issue no. 7, the Tribunal held that claim petition filed by claimants was not under Section 140 or Section 166 of the Act of 1988, and it was under Section 163-A and thus there was no need to find that accident took place on whose fault. The Tribunal while calculating the amount due and payable to the claimants at Rs.1,57,000/- along with 9% interest, final award was made on 01.04.2000. Hence, the present appeal.

6. Learned counsel appearing for the appellant submitted that the Truck No. USS-6158 was carrying gratuitous passenger and it was a goods vehicle and was being driven against the terms and conditions of the insurer's policy, thus, there was no liability of the insurance company. He then contended that insurance company cannot be held liable for liability arising out of death of a person who was travelling by the vehicle as a passenger other than person covered under the contract of insurance. Sri Mehrotra only pressed the appeal on the ground that the deceased, Jaswant Singh was travelling as gratuitous passenger and risk of gratuitous passenger was not covered by the insurance company and thus liability cannot be fastened. Reliance has been placed upon a decision rendered by Gujrat High Court in case of Hiteshkumar Rameshbhai Patel Vs. Rajendra Mataprasad Yadav, 2020 (1) TAC 840 Gujrat.

7. On the other side, Sri R.K. Porwal, learned counsel for the claimants-respondents submitted that deceased, Jaswant Singh was not a gratuitous passenger, in fact, he was travelling with owner of vehicle and this fact has been recorded by the Tribunal while dealing with issue nos. 1 and 2. He further submitted that claim petition was moved under section 163-A of the Act of 1988 and not under Section 140 or 166, thus, all these questions cannot be gone into. He has relied upon a decision of Apex Court rendered in case of T.O. Anthony vs. Karvarnan and Ors. (2008) 3 SCC 748, wherein the Apex Court had distinguished between the terms ''composite negligence' and ''contributory negligence'.

8. I have heard respective counsels and perused the material on record.

9. Before adverting to decide the issue in hand, it is necessary to note that Section 163-A was inserted in the Motor Vehicles Act, 1988 by the Act No. 54 of 1994 on 14.11.1994. The said section was thereafter substituted in Chapter XI by Act 32 of 2019 w.e.f. 01.09.2019.

10. Section 163-A as was inserted on 14.11.1994 reads as under:-

"163A. Special provisions as to payment of compensation on structured formula 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."

11. From perusal of the aforesaid section, it is clear that it starts with a non-obstante clause providing that the owner of the motor vehicle of the authorised insurer shall be liable to pay in case of death or permanent disability due to accident arising out of the use of motor vehicle, compensation, as indicated in Second Schedule, to the legal heirs or the victim, as the case may be. Sub-clause (2) of Section 163-A further provides that the claimant shall not be required to plead or establish that the death or permanent disability in respect of which claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicle concerned or of any other person.

12. Thus, it is clear that this provision has a overriding effect of over other provisions of the Act under which the claim is made.

13. In the present case, the Tribunal while dealing with the claim petition recorded a categorical finding while deciding issue no. 7 that claim filed by claimants was not under Section 140 or 166 of the Act of 1988, but was under Section 163-A. Once the finding has been recorded to the extent that the claim petition itself was under Section 163-A, the Court cannot adjudicate on the fact that either it was a contributory or composite negligence of the offending vehicle or that it was the liability of the owner of the vehicle or the insurance company.

14 The Tribunal rightly proceeded to make award as per the amount mentioned in the schedule in favour of the claimants.

15 In U.P. State Road Transport Corporation and Ors. vs. Trilok Chandra and Ors., 1996 (4) SCC 362, the Apex Court had taken note of the fact that post amendment of 1994, the Act of 1988 had undergone a change and provisions of Section 163-A and 163-B which begins with a non-obstante clause provides for payment of compensation as indicated in the Second Schedule.

16. This Court finds that once the finding has been recorded that case of the claimants is covered under Section 163-A of the Act of 1988 and the said fact has not been confronted by the appellant, no case for interference is made out in the judgment and award passed by the court below.

17. The appeal fails and is hereby dismissed.

Order Date :- 02.08.2022

V.S.Singh