Usha Sharma & Anr. vs Adarsh Kumar & Anr.
2012 Latest Caselaw 366 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Decided on: 19th January, 2012
+       MAC.APP. 506/2011

        USHA SHARMA & ANR.                 ..... Appellants
                Through: Mr. O.P. Mannie, Adv.

                     versus

        ADARSH KUMAR & ANR.               ....Respondents
                Through: Ms. Shantha Devi Raman, Adv. for
                          R-2.
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL
                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants who are the parents of the deceased Sunny who died in a motor accident which occurred on 01.08.2008 impugn a judgment in MACT No.611/2008 decided by the Motor Accident Claims Tribunal, (the Tribunal) on 13.12.2010.

2. In the Claim Petition filed before the Tribunal, it was averred that on 01.18.2008 at about 5:30 A.M. a two wheeler number DL-7S-BA-4864 met with an accident while it was being driven by Respondent No.1 (Adarsh Kumar) and the deceased Sunny was riding as a pillion rider.

3. The Tribunal by the impugned judgment found that the deceased himself was driving the two wheeler and Respondent No.1 Adarsh Kumar (owner of the two wheeler) was one of the

two pillion riders on the said two wheeler.

4. The learned counsel for the Appellants does not dispute that the two wheeler was driven by the deceased himself and that the accident took place by skidding of the two wheeler. The Tribunal relied on the unchallenged testimony of R2W1 to reach the conclusion that the deceased was driving the two wheeler.

5. The learned counsel for the Appellant submits that the judgment in Ningamma & Anr. v. United India Insurance Company Limited, (2009) 13 SCC 710 was misapplied by the Tribunal while rejecting the Appellant's Petition under Section 163-A of the Motor Vehicles Act (the Act). In this case, the owner of the two wheeler was also sitting on the pillion seat and the vehicle was being driven by the deceased with his permission. The presence of the owner on the two wheeler scooter would mean that the deceased Sunny was a third party vis-à-vis the owner. Thus, the owner was liable to pay the compensation and the Insurance Company was under obligation to indemnify the owner.

6. In the alternative, it is urged that even if, it is assumed that the deceased stepped into the shoes of the owner, he would be entitled to be paid a compensation of ` 1,00,000/- payable to the driver-cum-owner under the Insurance Policy.

7. In my view, the contentions raised on Appellant's behalf are

devoid of any merit and are liable to be rejected.

8. In Ningamma & Anr. (supra), the Supreme Court relied on Oriental Insurance Company Limited v. Rajni Devi, (2008) 5 SCC 736 where it was held that Section 163-A of the Act cannot be said to have any application in respect of the accident wherein the owner of the motor vehicle himself is involved.

9. Obviously, the Insurance Company indemnifies the owner on the basis of the contract of insurance where a third party is involved. Where an insurance contract provides for own damages or personal accident, the owner would be entitled to compensation in respect of the damage to the vehicle irrespective of any fault as also of the insurance amount upto the coverage in the contract in respect to the injuries received by him in an accident involving his own vehicle. Where the owner himself is a tortfeasor, he cannot claim compensation from his own insurer for a third party policy. It was in this context that in Rajni Devi (supra) the Supreme Court held that a borrower of a vehicle steps into the shoes of an owner and is not entitled to compensation from his insurer. Para 18 of the report in Ningamma & Anr. (supra) is extracted hereunder:-

"18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Ors. (2008) 5 SCC736 , 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 M.V.A. 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 M.V.A. 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 M.V.A. 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".

10. There is another aspect of the case. A Claim under Section 163-

A of the Act can be claimed by a person without proving any "wrongful act", "neglect" or "default" of the driver of the vehicle who caused the accident. But at the same time, if the person claiming the compensation himself is responsible for that accident or in other words, where the accident occurred because of the wrongful act, neglect or default of the Claimant

or the deceased, the owner of the vehicle would be entitled to escape the liability under Section 163-A of the Act.

11. The distinction between award of compensation on the basis of „liability without fault‟ under Section 140 and payment of compensation under Section 163-A of the Act was drawn by the Supreme Court in National Insurance Company Limited v. Sinitha & Ors., 2011 (13) SCALE 84. I extract Paras 13, 14, 15 and 16 of the report hereunder for ready reference:-

"13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163-A of the Act. For this, Section 163-A of the Act is being extracted hereunder:

Section 163-A. 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 or the authorized 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.

A perusal of Section 163(A) reveals that Sub- section (2) thereof is in pari materia with Sub- section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section 163-A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of Sub-section (4) of Section 140 in Section 163-A of the Act. Whereas, under Sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or insurance company) is precluded from defeating a claim raised under Section 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163-A of the Act. The additional negative bar, precluding the defense from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of

the Act (through Sub-section (4) thereof), having not been embodied in Section 163-A of the Act, has to have a bearing on the interpretation of Section 163-A of the Act. In our considered view the legislature designedly included the negative clause through sub-section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163-A of the Act. The legislature must have refrained from providing such a negative clause in Section 163-A intentionally and purposefully. In fact, the presence of Sub-section (4) in Section 140, and the absence of a similar provision in Section 163-A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defense to defeat a claim for compensation raised under Section 163-A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defense from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163A of the Act. The object for incorporating Sub-section (2) in Section 163A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to Sub-section (4) of Section 140 of the Act from Section 163A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect"

or "default" onto the shoulders of the defense (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163A of the Act is founded on the "fault" liability principle.

14. There is also another reason, which supports the aforesaid conclusion. Section 140 of the Act falls in Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 is titled as "Liability Without Fault in Certain Cases". The title of the chapter in which Section 140 falls, leaves no room for any doubt, that the provisions under the chapter have a reference to liability "... without fault ...", i.e., are founded under the "no- fault" liability principle. It would, however, be pertinent to mention, that Section 163A of the Act, does not find place in Chapter X of the Act. Section 163A falls in Chapter XI which has the title "Insurance of Motor Vehicles Against Third Party Risks". The Motor Vehicles Act, 1988 came into force with effect from 1.7.1989 (i.e., the date on which it was published in the Gazette of India Extraordinary Part II). Section 140 of the Act was included in the original enactment under chapter X. As against the aforesaid, Section 163A of the Act was inserted therein with effect from 14.11.1994 by way of an amendment. Had it been the intention of the legislature to provide for another provision (besides Section 140 of the Act), under the "no- fault" liability principle, it would have rationally added the same under Chapter X of the Act. Only because it was not meant to fall within the ambit of the title of Chapter X of the Act "Liability Without Fault in Certain Cases", it was purposefully and designedly not included thereunder.

15. The heading of Section 163A also needs a special mention. It reads, "Special Provisions as to Payment of Compensation on Structured Formula Basis". It is abundantly clear that Section 163A, introduced a different scheme for expeditious determination of accident claims. Expeditious determination would have reference to a provision wherein litigation was hitherto before (before the insertion of Section 163A of the Act) being long drawn. The only such situation (before the insertion of Section 163A of the Act) wherein the litigation was long drawn was under Chapter XII of the Act. Since the provisions under Chapter XII are structured under the "fault" liability principle, its alternative would also inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre- structured formula to evaluate compensation. It provided for some short-cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. All in all, one cannot lose sight of the fact that claims made under Section 163A can result in substantial compensation. When taken together the liability may be huge. It is difficult to accept, that the legislature would fasten such a prodigious liability under the "no-fault" liability principle, without reference to the "fault" grounds. When compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a "fault" ("wrongful act", "neglect", or "defect") under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A

of the Act is founded under the "fault" liability principle.

16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited v. Hansrajbhai v. Kodala, (2001) 5 SCC 175, as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect" or "default". From the preceding paragraphs (commencing

from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the Learned Counsel for the Petitioner."

12. In this case, the accident took place on account of the neglect or default of deceased Sunny himself. His legal representatives, therefore, would not be entitled to the grant of compensation from the owner under Section 163-A of the Act also. Similar view was taken by the Punjab and Haryana High Court in FAO No.1413/2000 titled General Manager, Chandigarh Transport Undertaking-I, Chandigarh & Anr v. Kanwaljit Kaur & Ors., decided on 09.05.2011.

13. The personal accident cover (even if the Insurance Company could not avoid the policy) for `1,00,000/- was only for the owner-driver. In other words, where the owner himself suffers any injury while driving the vehicle or in any other accident, he/his legal representatives would be entitled to the compensation in terms of the contract of insurance.

14. Anybody and everybody borrowing the vehicle from an owner would not be covered on the principle in Ningamma & Anr. (supra) that he steps into the shoes of the owner.

15. The Appeal is devoid of any merit; the same is accordingly dismissed. No costs.

(G.P. MITTAL) JUDGE JANUARY 19, 2012 vk