Bombay High Court
Revati Shrimant Ghuge And Ors vs Through Manager, United India ... on 25 September, 2017
Bench: K.L. Wadane
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1896 OF 2017
1. Revati wd/o Shrimant Ghuge
Age 38 years, Occu: Household
2. Shrikant s/o Shrimant Ghuge
Age 22 years, Occu: Education
3. Bhagyashree d/o Shrimant Ghuge
Age 19 years Occu: Education
4. Shriram s/o Shrimant Munde
Age 17 years Occu: Education
(Minor under guardian of
Appellant No.1)
5. Narayan s/o Kondiba Ghuge
Age 64 years, Occu: Nil
6. Janabai Narayan Ghuge ... Appellants
Age 61 years,Occu: Household (Org.Claimants)
All R/o Bhutmugali
Tq. Nilanga, Dist. Latur
VERSUS
1. The United India Insurance Co.
Through its Manager,
Branch Latur, Tq.& Dist. Latur
2. Feroj s/o Jindasab Mujawar ... Respondents.
Age 36 yeas, Occu: Owner
R/o Kasar Shirsi Tq. Nilanga
Dist. Latur
Shri Manoj D. Shinde, Advocate for claimants.
Shri S. S. Rathi, Advocate for respondent No.1
CORAM : K. L. WADANE, J.
DATE : 25th September, 2017
ORAL JUDGMENT:
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. Heard. With the consent of the parties, taken up
for final hearing.
2. This is an appeal under section 173 of the Motor
Vehicles Act, challenging judgment and order dated 28th
April, 2015 passed by the learned Motor Accident Claim
Tribunal, Nilanga in MACP No. 04/2010. The appellants are
original claimants. The parties shall be referred to in
their original capacity.
3. The appellants original claimants have filed
application under section 163-A of the Motor Vehicles
Act, 1988 claiming that on 11.10.2009, deceased Shrimant
Ghuge alongwith Bapu Mundhe and Bibhishan Mundhe were
coming to Wanjarwadi from Renapur on motorcycle
bearing registration NO. MH-24/H/2874. Bapu Mundhe was
driving the the motorcycle by the correct side of the
road. At about 11.45 p.m. when they reached near Pati,
a Car bearing registration No.MH-12-V-0047 came from
behind and gave dash to the motorcycle. Due to the
dash, Shrimant sustained multiple injuries and Bibhishan
died on the spot. Shrimant was shifted to Agroya
Hospital at Latur, however he succumbed to injuries on
21.10.2009. Respondent No.1 Insurance Company
resisted the claim by filing its written statement int he
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trial Court.
4. Considering rival pleadings of the parties, issues
were framed at Exh.14 by the tribunal. To establish the
claim, the claimant Ravati Ghuge i.e. widow of the
deceased entered into the witness box and deposed in the
line of contention in the claim petition. Respondent
No. 1 is the Insurer and respondent No.2 is the owner of
the car involved in the accident. Driver of the car was
not made party to the petition.
5. Considering the evidence on record and after
hearing both the sides, the learned tribunal has held
that there was contributory negligence of both,
motorcycle rider as well as car driver and considering
the negligence of the car driver to the extent of 50%,
has awarded compensation to the extent of 50%, which
comes to Rs.84,000/- and in addition to that, an amount
of Rs.15,000/- is granted for the purpose of funeral
expenses. Accordingly the tribunal has granted total
compensation of Rs.99,000/-.
6. Looking to the facts and circumstances of the case
that the claim petition was filed under the provisions of
Section 163-A of the Motor Vehicles Act, the Court is
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not required to determine the negligence of the parties.
The learned Tribunal has wrongly considered this aspect
and has wrongly deducted compensation on account of
negligence of the motorcycle driver. In the proceedings
claiming compensation under Section 163-A of the Motor
Vehicles Act, claimants are not required to plead and
prove that the death was caused due to wrongful act or
neglect or fault of driver of the vehicle or any other
person. In such claim, if accident is proved to have
occurred arising out of use of motor vehicle, claimants
are entitled for compensation as per structured formula
provided in Schedule II of the Motor Vehicle Act.
7. This special provision is available to a distinct
class of persons whose annual income does not exceed
Rs.40,000/-. Provisions of this Section were considered
by the Hon'ble Supreme Court in the matter of Deepal
Girishbhai Soni Vs. United India Insurance Co., reported
in 2004 (5) SCC 385. In paragraph 66 of its report, the
Hon'ble supreme Court observed thus:
"We may notice that Section 167 of the Act
provides that where death of, or bodily injury
to, any person gives rise to claim of
compensation under the Act and also under the
Workmen's Compensation Act, 1923, he cannot claim
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compensation under both the Acts. The Motor
Vehicles Act contains different expressions as,
for example, "under the provision of the Act",
"provisions of this Act", "under any other
provisions of this Act" or "any other law or
otherwise". In Section 163-A, the expression
"notwithstanding anything contained in this Act
or in any other law for the time being in force"
has been used, which goes to show that the
Parliament intended to insert a non-obstante
clause of wide nature which would mean that the
provisions of Section 163-A would apply despite
the contrary provisions existing in the said Act
or any other law for the time being in force.
Section 163-A of the Act covers cases where even
negligence is on the part of the victim. It is
by way of an exception to Section 166 and the
concept of social justice has been duly taken
care of."
8. It is thus clear that section 163-A of the Act
covers where even negligence is on the part of the
victim. It is by way of an exception to section 166 of
the Motor Vehicles Act, 1988 and concept of social
justice has been duly taken care of under this provision.
9. Similar view is taken by this Court in the matter
of Latabai Bhagwan Kakade And Ors. vs Mohammed Ismail
Mohd. Saab Bagwan reported in I (2002) ACC 407, wherein
it is held that negligence of victim cannot be considered
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while examining claim for compensation under section 163-
A of the Motor Vehicles Act, 1988.
10. In view of the legal position referred above, I
am of the opinion that while considering application
under Section 163-A of the Motor Vehicles Act, it was not
necessary for the claimants to establish that the
accident occurred due to negligence of the driver or some
other person. The learned Tribunal has, under wrong
impression, considered the aspect of negligence and has
wrongly deducted the amount of compensation towards the
negligence of the motorcycle driver.
11. In such circumstance the reasons recorded by the
learned Tribunal appears to be incorrect and therefore
matter needs to be remanded for its disposal in
accordance with law. Hence following order:
O R D E R
i. Judgment and award of the learned Motor Accident
Claim Tribunal, Nilanga is quashed and set aside.
ii. Parties are relegated to the learned Motor Accident
Claim Tribunal, Nilanga. They are permitted to
adduce fresh evidence, if they desire.
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iii. Learned Tribunal is directed to decide the claim
petition within a period of six months from the
date of communication of this order.
iv. Claimants as well as respondent No.1 are directed
to appear before the learned Tribunal on 13th
October, 2017.
12.. First appeal is accordingly disposed of. No
order as to costs.
(K. L. WADANE, J. )
JPC
