Delhi High Court
Rekha Devi & Ors vs Nand Kishore Jha & Ors on 30 October, 2017
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th October, 2017
+ MAC.APP. 838/2011
REKHA DEVI & ORS ..... Appellants
Through: Mr. Amit Kumar Pandey,
Advocate
versus
NAND KISHORE JHA & ORS ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for
R-3/insurance company
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The accident claim case (suit no.45/2010) instituted on
02.07.2003 by the appellants under Section 163-A of the Motor
Vehicles Act, 1988 was dismissed by the Motor Accident Claims
Tribunal (Tribunal) by judgment dated 19.03.2011 on the ground that
the deceased Prem Chand Srivastava while driving three wheeler
scooter bearing registration no.DL-1RG-9610(TSR) on 16.06.2002 at
the time of its collision involving Opel car bearing registration no.DL-
2CH-4325 (car) himself was negligent.
2. The claimants had impleaded as respondents to the claim
petition not only the owner and insurer of the TSR, they being the first
and second respondent respectively in appeal, but also the owner and
insurer of the car, they now being third and fourth respondents.
3. It is noted that the collision between the TSR and the car was
not denied. The evidence adduced before the tribunal rather
substantiated that to be a fact.
4. Reliance is placed by the insurer of the both the vehicles (the
insurance company being common) on the decision of the Supreme
Court in National Insurance Co. Ltd. Vs. Sinitha and Ors., (2012) 2
SCC 356.
5. In a similarly placed case arising out of the MACA 967/2015,
National Insurance Co. Ltd. Vs. Neetu Verma and Ors., decided on
10.10.2017, where the liability had been fastened on the insurance
company to pay the compensation determined under Section 163-A of
the Motor Vehicles Act, 1988, challenge was brought to the judgment
of the Motor Accident Claims Tribunal on the ground that the
evidence would show negligence on the part of the deceased himself.
This court held thus :-
"3. The insurer in its appeal submits that it is inherent
in the aforementioned facts that the accident occurred
due to the negligence on the part of the deceased himself
and, therefore, the liability could not have been fastened
against it. Reliance is placed on the decision of a bench
of two Hon'ble Judges of the Supreme Court reported as
National Insurance Company Ltd. vs. Sinitha & Others;
(2012) 2 SCC 356. An earlier decision of a bench of
three Hon'ble Judges of the Supreme Court reported as
Deepal Girishbhai Soni & Ors. vs. United India
Insurance Co. Ltd., Baroda; (2004) 5 SCC 385, however,
has taken a contrary view in the context of claims under
Section 163-A of Motor Vehicles Act, 1988 after taking
note of the special provision under Section 163-A of
Motor Vehicles Act, 1988 ruling (in para 66) that
"(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."
4. In above view the plea of negligence is rejected.
The appeal is dismissed."
6. In above view, the impugned judgment cannot be sustained.
The tribunal will have to adjudicate on the claim petition of the
appellants keeping the issue of negligence out of consideration.
7. The impugned judgment is set aside. The matter is remanded to
the tribunal. The parties are directed to appear before the tribunal on
28.11.2017.
8. The appeal is disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 30, 2017
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