Gujarat High Court
Kaushalbhai Ashokbhai Patel (Minor) ... vs Uttambhai Gelabhai Parmar on 12 February, 2025
NEUTRAL CITATION
C/FA/3177/2012 ORDER DATED: 12/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3177 of 2012
==========================================================
KAUSHALBHAI ASHOKBHAI PATEL (MINOR) THRO' GUARDIAN & ORS.
Versus
UTTAMBHAI GELABHAI PARMAR & ORS.
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MR BT VYAS(5540) for the Defendant(s) No. 4
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 3
MR GAJENDRA P BAGHEL(2968) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants - original
claimants being aggrieved and dissatisfied with the judgment
and award dated 14.9.2011 passed by the Motor Accident
Claims Tribunal, Ahmedabad in Motor Accident Claim Petition
No.103 of 2003.
2. The brief fact of the present appeal is such that on
20/07/2003 husband of respondent no. 2 namely Ashokbhai
was going on scooty bearing no. GJ-1-DC-1862 carefully and in
moderate speed and at that time, Driver of Tempo i.e.
respondent no.4 came driving his Tempo Bearing no. GJ-4-D-
8808 rashely and negligently, against the traffic rules and
dashed the front portion of his tempo with the front portion of
NEUTRAL CITATION
C/FA/3177/2012 ORDER DATED: 12/02/2025
undefined
the Scooty. It is submitted that due to the accident the deceased
sustained serious bodily injuries and he died. Therefore the
appellants have prayed the compensation for unnatural death
and untimely death against the present respondent by way of
filing a petition before the Motor Accident Claim Tribunal,
Ahmedabad and prayed Rs. 7,29,000/- and held these
respondents jointly and severally liable to pay the amount of
compensation.
3. Learned advocate for the appellants would sbmit that the
learned Tribunal in a claim petition filed u/s 163A of the MV Act
erroneously decided the issue of negligency inter se between the
drivers of the two vehicles involved in the road accident. He
would further submit that deciding the issue of negligency in a
claim petition u/s 163A of the MV Act is in violation of
provisions of law. In view of above, learned advocate Mr. Modi
would submit that the insurance company is therefore, liable to
pay the compensation jointly and severally along with other
opponents. Upon such submission, he prays to allow this First
Appeal.
4. On the other hand, learned advocate Mr. Chirayu Patel
having referred to the impugned judgment and award would
submit that the accident took place due to sole negligency of the
driver of the tempo and the deceased was driving the scooty.
Considering this aspect, the learned Tribunal passed the order
exonerating the insurance company of the scooty.
5. Having heard learned advocates for both the sides, what
could be noticed that the on the fateful day of the incident, the
NEUTRAL CITATION
C/FA/3177/2012 ORDER DATED: 12/02/2025
undefined
deceased was driving the scooty dashed with the tempo and
died. The legal heirs of the deceased moved claim petition u/s
163A of the MV Act against the owner and driver of the tempo
as well as insurer and owner of the scooty for getting
compensation of Rs.7,29,000/-. The learned Tribunal granted
compensation in tune of Rs.4,98,000/- with 9% interest from the
date of filing the claim petition till realization, however
exonerated the insurance company of the scooty on the belief
that the accident took place due to sole negligency of the driver
of the tempo.
6. At this juncture, let refer section 163A of the MV Act.
"(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 authorised 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."
NEUTRAL CITATION
C/FA/3177/2012 ORDER DATED: 12/02/2025
undefined
7. The Hon'ble Apex Court in case of Shivaji Versus Divisional
Manager, United India Insurance Co.Ltd., the Hon'ble Apex
Court in para 5 held as under:-
"5. The issue which arises before us is no longer res
integra and is covered by a recent judgment of three
judges of this Court in United India Insurance Co. Ltd.
v. Sunil Kumar & Anr., AIR 2017 SC 5710.,wherein it
was held that to permit a defence of negligence of the
claimant by the insurer and/or to understand Section
163A of the Act as contemplating such a situation,
would be inconsistent with the legislative object behind
introduction of this provision, which is "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". The Court observed
that if an insurer was permitted to raise a defence of
negligence under Section 163A of the Act, it would
"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 self contradictory but also
defeat the very legislative intention". Consequently, it
was held that in a proceeding under Section 163A of
the Act, the insurer cannot raise any defence of
negligence on the part of the victim to counter a claim
for compensation."
8. The Coordinate Bench of this Court of this Court in case of
United India Insurance Company Limited Versus Kasubhai
Desabhai Vala Legal Heirs Of Decd, 2022 (0) JX(Guj) 293 held
that in a claim petition filed u/s163A of the MV Act, negligence
is not required to be proved. In view of above, findings of the
learned Tribunal assessing inter se negligency between the
drivers of the two vehicles involved in the road accident is
impermissible, as such finding is permissible only if claim
petition is filed u/s 166 of the MV Act and therefore, such
NEUTRAL CITATION
C/FA/3177/2012 ORDER DATED: 12/02/2025
undefined
finding is required to be interfered with.
9. For the foregoing reasons, present First Appeal is allowed.
The impugned judgment and award is hereby quashed and set
aside. All the opponents of the claim petition are jointly and
severally held liable to pay the compensation.
9.1 The insurance company is directed to deposit the
decretal amount including interest and cost with the learned
Tribunal within a period of six weeks from the date of receipt of
this order.
9.2 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
9.3 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
9.4 Rest of the direction(s) of the Tribunal remain same.
9.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
