New India Insurance Company Pr. ... vs Lalitaben Manjibhai Gamit
2021 Latest Caselaw 3063 Guj

         C/FA/2904/2014                                               JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.                 2904 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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               NEW INDIA INSURANCE COMPANY PR. LI.
                              Versus
              LALITABEN MANJIBHAI GAMIT & 3 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR PRAVIN GONDALIYA(1974) for the Defendant(s) No. 4
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                Date : 23/02/2021

                                  ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 13.03.2014 passed by the Motor Accident Claims Tribunal, Vyara in MACP No. 217 of 2008, the insurance company has preferred this appeal under Section 173 of the Motor

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Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal -

2.1 That the accident took place on 06.08.2008.

It is the case of the claimants that the deceased Rahulbhai Manjibhai Gamit was driving motorcycle bearing GJ­5­DG­9732 with two pillion riders and the motorcycle dashed from behind with the insured truck bearing registration No. GJ­11­X­9141. The respondents­original claimants preferred claim petition under section 163A of the Act and claimed compensation of Rs. 5,00,000/­. The record indicates that the said claim petition was heard along with other claim petitions being MACP No. 184 of 2009 and 185 of 2009. Common evidence came to be adduced, both oral as well as documentary and by the impugned judgment and award, the Tribunal rejected the contention of negligence raised by the appellant­insurance company and while partly allowing the claim petition being MACP No. 217 of 2008, awarded a sum of Rs. 22,92,500/­ with 8% interest from the date of the claim petition till its realisation and being aggrieved by the same, the present appeal is filed.

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3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant, Mr. Hiren Modi, learned advocate for respondents no. 1 to 3 and Mr. Pravin Gondaliya, learned advocate for respondent no.4.

4. I have also perused the copies of the relevant documents adduced by the learned advocates.

5. Mr. Mazmudar, learned advocate appearing for the appellant has contended that as per the ratio laid down by the Hon'ble Apex Court in the case of Sunil Kumar reported in 2012 ACJ 1, the appellant insurance company is entitled to raise defence of negligence and prove the same even in a claim petition under Section 163A of the Act. It was submitted by Mr. Mazmudar that the Tribunal has committed an error in not considering the binding decision of the Apex Court and has wrongly come to the conclusion that in a claim petition under Section 163A of the Act the insurance company cannot raise defence of negligence to counter the claim for compensation. Mr. Mazmudar therefore contended that the appeal deserves to be allowed and the insurance company cannot be made liable in facts and circumstances of this case. Mr. Mazmudar contended that the Tribunal has committed an error in not appreciating the evidence on record.

6. Per contra, Mr. Hiren Modi, learned advocate appearing for the original claimants has opposed

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the appeal and has submitted that in a claim petition under Section 163A of the Act, the insurance company cannot raise the plea of negligence and has rightly held so and the appeal being meritless, deserves to be dismissed.

7. Mr. Pravin Gondaliya, learned advocate for respondent no.4 submitted that this Court may pass appropriate order.

8. Having heard the learned advocates appearing for the parties, the question which arises for consideration in this appeal is that whether it is open for the insurer to raise the defence of negligence on the part of the victim in a claim petition under Section 163A of the Act or not? The said question is covered by the judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar reported in AIR 2017 SC 5710, wherein the Hon'ble Apex Court has observed thus ­

"5. In Deepal Girishbhai Soni and others vs. United India Insurance Co. Ltd., Baroda the issue before a three judge bench of this Court was with regard to the mutual exclusiveness of the provisions of Section 163A and Section 166 of the Act. While dealing with the said question, this Court had the occasion to go into the reasons and objects for the incorporation of Section 140 and 163A of the Act which came in by subsequent amendments, details of which are being noted separately herein below. The Bench also took the view that while Section

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140 of the Act deals with cases of interim compensation leaving it open for the claimant to agitate for final compensation by resort to the provisions of Section 166 of the Act, Section 163A of the Act provides for award of final compensation on a structured formula following the provisions of Second Schedule appended to the Act. Both Sections i.e. Sections 140 and 163A are based on the concept of 'no fault liability' and have been enacted as measures of social security. It was further noted that in a proceeding under Section 163A of the Act the Tribunal may be required to adjudicate upon various disputed questions like age, income, etc. unlike in a proceeding under Section 140 of the Act.

6. Deepal Girishbhai Soni's case (supra), in fact, arose out of a reference made for a decision on the correctness of the view expressed in Oriental Insurance Co. Ltd. vs. hansrajbhai Kodala and other4 that determination of compensation in a proceeding under Section 163A of the Act is final and further proceedings under Section 166 of the Act is barred. The opinion rendered in Hansrajbhai V. Kodala (supra) contains an elaborate recapitulation of the reasons behind the enactment of Section 92A to 92E of the Old Act (i.e. Motor Vehicles Act, 1939) (corresponding to Sections 140 to 144 of the present Act) introducing for the first time the concept of 'no fault liability' in departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for death or permanent disablement caused on account of a motor vehicle accident. In the said report, there is a reference to the deliberations of the Committee constituted to review the provisions of the Motor Vehicles Act, 1988 and the suggestions of

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the Transport Development Council on the basis of which the draft Bill of 1994 was enacted, inter alia, to provide for: "(h) increase in the amount of compensation to the victims of hit­and­run cases;

(k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational."

7. As observed in Hansrajbhai V. Kodala (supra) one of the suggestions made by the Transport Development Council was "to provide adequate compensation to victims of road accidents without going into long drawn procedure." As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Section 92A to 92E of the Old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act makes it clear that compensation payable thereunder does not foreclose the liability to pay or the right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163A , on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000/­ per annum) on the basis

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of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala (supra) the bench had occasion to observe that:

"Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever­increasing motor vehicle accidents in a fast­moving society. Further, the law before insertion of Section 163­A was giving limited benefit to the extent provided under Section 140 for no­fault liability and determination of compensation amount on fault liability was taking a long time. That mis­ chief is sought to be remedied by introducing Section 163­A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured­formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the de­ faulting vehicles."

8. From the above discussion, it is clear that grant of compensation under Section 163A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object

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behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self­contradictory but also defeat the very legislative intention.

9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.

9. Following the judgment of the Apex Court in the case of Sunil Kumar (supra), the Tribunal has committed no error in not permitting the appellant insurer to raise the plea of negligence in the claim petition under Section 163A of the Act. The impugned judgment and award therefore deserves to be confirmed. Resultantly, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) BIJOY B. PILLAI