Bombay High Court

The Divisional Manager, New India ... vs Sangeeta Wd/O Balwantrao Wandile ... on 15 June, 2017

Bench: S.B. Shukre

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.526 OF 2005


        The Divisional Manager, 
        New India Assurance Company Limited,
        Udhyam Building, Shankar Nagar Square,
        West High Court Road, Nagpur.                                                :      APPELLANT

                           ...VERSUS...

        1.    Sangeeta wd/o. Balwantrao Wandile,
               Aged about 32 years,
               Occupation : Household.

        2.    Kum. Apeksha d/o. Balwantrao Wandile,
               Aged about 10 years.

        3.    Kum Trupti d/o. Balwantrao Wandile,
               Aged about 9 years.

        4.    Tarang s/o. Balwantrao Wandile,
               Aged 7 years,

               Respondent Nos.(2) to (4) being
               minors, represented through natural
               guardian mother - Respondent No.1
               Sangeeta Balwantrao Wandile.

               Respondent Nos.1 to 4 All R/o. Yerkheda,
               Tahsil - Kamptee, Distt. Nagpur.

        5.    Shri Babarao s/o. Lahnuji Wandile,
               Aged 74 years,
               Occupation : Agriculture.

        6.    Balubai w/o. Babarao Wandile,
               Aged 69 years,
               Occupation : Household.

               Both R/o. Village Paoni, Tah. Hinghanghat,
               Distt. Wardha, Maharashtra State.




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        7.    Shri Mohansingh s/o. Ajitsingh Saini,
               Aged : Major, Occupation : Truck owner,
               R/o. Maharashtra Roadways,
               Tati Bandha, Raipur, Chhatisgarh.                                      :      RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.J. Pophaly, Advocate for the Appellant.
        None for the Respondents.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 15 JUNE, 2017.

ORAL JUDGMENT :

1. This appeal questions the legality and correctness of the

order dated 23rd June, 2005, in Special Claim Petition No.9/2002 by the

Motor Accident Claims Tribunal, Nagpur. The appellant is the insurer of

the truck bearing registration No.MP-23-DA-6127 owned by respondent

No.7 at the relevant time. This truck was being driven by the deceased

Balwant - the husband, father and son of the respondent Nos.1 to 6 in

that order. When this truck driven by the deceased Balwant reached a

spot near Kalamna on Nagpur-Kamptee road on 3.7.2001, another truck

bearing registration No.MH-31-M-7557, coming from the opposite

direction, collided head on with it. Deceased Balwant suffered serious

injuries. He was removed to the hospital where he succumbed to

injuries. The respondent Nos.1 to 6 being dependent upon the income of

the deceased, laid a claim for compensating them against the owner and

the insurer i.e. respondent No.7 and the present appellant respectively

under Section 163-A of the Motor Vehicles Act, 1988. On merits of the

J-fa526.05.odt 3/8

case, learned Member of the Tribunal found that other truck bearing

registration No.MH-31-M-7557 was not being driven rashly and

negligently and, therefore, the owner and insurer thereof were not

necessary parties. The Tribunal further found that the truck bearing

No.MP-23-DA-6127, the one driven by deceased Balwant, was at fault.

An objection was taken on behalf of the appellant that if the driver

whose legal heirs are claiming compensation for the accidental death of

the driver, himself was at fault, no claim for compensation under Section

163-A could be filed by the legal heirs on behalf of the deceased against

the insurer of the vehicle rashly and negligent driven by the deceased.

The objection was turned down on the ground that Section 163-A was

not based upon any fault liability and it was not necessary for any party

or the claimant to establish the fault or otherwise of the driver of the

vehicle involved in the accident. Accordingly, compensation was

determined to be at Rs.3,49,500/- and was directed to be paid jointly

and severally by the appellant and the respondent No.7 together with

interest at the rate of 9% per annum from the date of petition till

realization by the impugned award. Not being satisfied with the same,

the appellant is before this Court in the present appeal.

2. I have heard Shri A.J. Pophaly, learned counsel for the

appellant. None for the respondents though duly served for final

hearing. I have gone through the record of the case including the

impugned judgment and order. The only point which arises for my

J-fa526.05.odt 4/8

determination is :

Whether the claim for compensation filed under Section 163-A of the Motor Vehicles Act, 1988 against the insurer of the truck, in the facts and circumstances of the present case, was maintainable ?

3. Shri A.J. Pophaly, learned counsel for the appellant submits

that such a claim was not at all maintainable against the appellant as it is

well settled law that a tortfeasor cannot be a claimant. He places his

reliance upon the cases of Appaji (since deceased) and another vs. M.

Krishna and another, reported in 2005(1) T.A.C. 994 (Karnataka) and

judgment of the learned Single Judge of this Court date 5 th July, 2007,

rendered in First Appeal No.1851/2008, M/s. HDFC Chubb General

Insurance Co. Ltd. vs. Smt. Shantidevi Rajbalsingh Thakur and

another.

4. In the instant case, the basis of grant of compensation under

Section 163-A of the Motor Vehicles Act appears to be the fault liability

arising on account of rash and negligent driving of the driver of the truck

insured with the appellant. The claim for compensation is not based

upon absence of any fault liability. In the case of Appaji (supra) the

Division Bench of the Karnataka High Court considered in extenso the

effect of the provisions of Section 163-A as well as Section 147 of the

Motor Vehicles Act and also the law laid down by the Hon'ble Apex Court

in the case of Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala

reported in 2001 A.C.J. 827 equivalent 2000(1) T.A.C. 331 (SC) and

J-fa526.05.odt 5/8

held that Section 163-A was never intended to provide relief to those

who suffered in a road accident not because of the negligence of another

person making use of motor vehicle, but only on account of their own

rash and negligent or imprudent act resulting in their deaths or personal

injuries to them. It further found that the word "victim" appearing in

Section 163-A, does not include a person who himself is a wrongdoer or

a perpetrator of crime or a victimizer. It held that the right to receive

compensation under Section 163-A pre-supposes that the person who

makes a claim is a victim or a legal heir of a victim and not a tortfeasor

or a wrongdoer or a victimizer. It further found that Section 163-A does

not do away with the requirements of Section 147 of the Motor Vehicles

Act which, inter alia, envisages existence of liability of the owner of the

driver to a third party arising out of the use of the vehicle in a public

place. The reason being that what is insured in the policy is the risk of

the owner against any liability that arises against him on account of any

death or injury resulting from use of motor vehicle in a public place.

However, such is not the case in an accident where the person killed or

injured himself is responsible for the accident without involvement of

any other vehicle or agency. In such a case, no liability qua the insured

would arise except when the person who is killed or injured is an

employee of the insured and the accident arises out of his employment.

But, even in such a case, the legal heirs could be paid compensation

under the provisions of the Workmens' Compensation Act. Relevant

J-fa526.05.odt 6/8

observations of the Division Bench of Karnataka High Court as they

appear in paragraph 20 are reproduced thus :

"20. The issue can be examined from yet another angle. Section 147 of the Motor Vehicles Act prescribes the requirement of a policy of insurance in order that the same may be said to comply with the provisions of Chapter XI. It, inter alia, envisages a policy of insurance which insures the person or class of persons specified in the policy against any liability which may be incurred by him in respect of the death or bodily injury or damage to any property of a third party arising out of the use of the vehicle in a public place. What is important is that the policy must insure the owner against "any liability which arises against him" on account of any death or injury arising out of a motor accident. In the case of an accident where the person who is killed or injured is himself responsible for the accident without the involvement of any other vehicle or agency, no liability qua the insured would arise except where the person who is killed or injured is an employee of the insured and the accident arises out of his employment. In any such case, rashness or negligence of the employee may be inconsequential for purposes of holding the employer liable to pay the compensation under the Workmen's Compensation Act. The decision of this Court in Y.R. Shanbhag v. Mchammed Gouse, 1991 A.C.J. 699 : 1991 (2) T.A.C. 693 (Kant.), has taken the view that where the driver had sustained injuries due to his own driving he cannot maintain a petition under Motor Vehicles Act, his remedy being under Workmen's Compensation Act. Reference may also be made to another Division Bench decision of this Court in B. Prabhakar v. Bachima, 1984 A.C.J. 582 : 1984 (2) T.A.C. 298 (Kant.), where the Court observed :

"From Section 110-AA, it is clear that before an application can be entertained, the accident must have occurred due to the actionable negligence of the owner or the driver of the vehicle.....When the accident has occurred due to actionable negligence of the deceased who has himself the driver, no claim by his legal representatives can be entertained under the Act. That being so Section 110-AA will not come into play at all".

J-fa526.05.odt 7/8

5. Same view has been taken by the learned Single Judge of this

Court in the case of HDFC General Insurance Co. Ltd. (supra).

6. The legal position as explained in Appaji (supra), is very clear

and, therefore, it needs to be followed in the instant case also. The

position then would be that the finding that the deceased himself was the

tortfeasor having attained finality, his legal heirs would not be entitled to

claim any compensation by filing an application under Section 163-A of

the Motor Vehicles Act and that their remedy would lie elsewhere. What

could be the other remedy available to the legal heirs can also be

answered in this very appeal.

7. There is no dispute about the fact that the deceased Balwant

being the driver of respondent No.7, was his employee and the accident

occurred during the course of his employment. Therefore, the legal heirs

would be entitled to seek compensation under the provisions of the

Workmens' Compensation Act. The competent forum in the first instance

for claiming such a relief would be the labour Court. But, considering

the fact that the accident had occurred way back in the year 2001, it

would be unjust to relegate respondent Nos.1 to 6 to the labour Court

such an exercise can also be carried out here while disposing of this

appeal and I think, it would be reasonable to do so considering the long

time gap after the accident took place. Doing so, I find that the amount

of compensation that respondent Nos.1 to 6 are entitled to receive from

the appellant and respondent No.7 jointly and severally could be

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calculated as follows :

Half monthly wages Rs.1,250/-

                                            X         203.85 
                                            --------------------
                                            Rs.2,54,812.50
                                            ========

Therefore, the respondent Nos.1 to 6 are entitled to receive from

appellant and respondent No.7 jointly and severally the amount of

Rs.2,54,812.50 with interest at the rate of 7% p.a. from the date of

application till realization.

8. In the circumstance, the point is answered accordingly.

9. The appeal is partly allowed.

10. The appellant and respondent No.7 are directed to pay jointly

and severally amount of Rs.2,54,812/- to the respondent No.1 and 6

together with interest at the rate of 7% p.a. from the date of petition till

depositing of this amount in this Court.

11. The respondents Nos.1 to 6 are permitted to withdraw the

amount of Rs.2,54,812/ - from the amount already deposited in this