Damodar Yadav vs Vikash Jain
2021 Latest Caselaw 2185 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 164 of 2018
                                 ......

      Damodar Yadav                                       ...... Appellant
                                  Versus
      1.Vikash Jain
      2. M/S Oriental Insurance Co. Ltd., Dhanbad         .......Respondents

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellant                  : Mr. Lukesh Kumar, Advocate
      For the Respondent No.2            : Mr. Manish Kumar, Advocate

07/Dated: 05/07/2021.

             Heard, learned counsel for the parties.

The instant Miscellaneous Appeal has been preferred by the claimant/injured, Damodar Yadav, S/o Late Lochan Yadav against the part of the judgment dated 16.11.2017, passed by learned Distirct Judge-IX-cum-M.A.C.T., Dhanbad in Title (M.V.) Suit No.234 of 2010, wherein the learned Tribunal has framed seven issues and the learned Tribunal has also examined altogether four witnesses and also exhibited a number of documents up to Exhibit-13 as well as xerox copy of the National Permit of the offending vehicle bearing registration no.WB-23B-5588 has been marked as X for identification.

It appears that issue no.5 and issue no. 6 are relevant for deciding this appeal. Issue no. 5- "whether the vehicle involved in the accident were insured at the time of accident?" and issue no. 6- "whether any violation of conditions imposed in insurance certificate?"

The learned Tribunal has given finding at page nos. 13 and 14 of the impugned award against the Insurance Company and the Insurance Company has not assailed the finding recorded by the learned Tribunal.

So far the issue no.4 is concerned, the same is with regard to "whether the driver was holding valid and effective Driving licence at the time of alleged occurrence?" this issue has also been decided at page no.14 of the impugned award against the Insurance Company and the Insurance Company has also not preferred any appeal against such finding.

So far the issue no.1- "whether the suit is maintainable in the present form?

2. is there any cause of action in the present suit?

3. whether the claimant sustained injury in motor vehicle accident? and

7. whether the claimant is entitled to get any relief and if so what relieves or amount of the compensation the claimant is entitle?" are concerned,the issue no.3 has been decided in favour of the claimant/applicant.

So far the issue nos.1, 2 and 7 are concerned though injured- Damodar Yadav has sustained 45% permanent disability, but the learned Tribunal has dismissed the claim application on the ground, that accident took place due to rash and negligent driving of the driver of the truck, Damodar Yadav, (applicant), who dashed the standing trailor and as such, sustain serious injury. Thus, the applicant himself is responsible for the accident. The claim made by the applicant under Section 163(A) of the MV Act, 1988 on structured formula basis is not at all maintainable and the claim made by the applicant is liable to be dismissed.

Learned counsel for the appellant, Mr. Lukesh Kumar in support of his submission has placed reliance upon the judgment passed by the Apex Court in the case of United India Insurance Company Ltd. vs. Sunil Kumar and Ors., reported in 2019 (12) SCC 398 and submitted that Apex Court, on the basis of the appeal preferred by the Insurance Company, dealt with the same issues of which paras 3, 8 and 9, which may profitably be quoted hereunder:-

"3. In Sinitha case [National Insurance Co. Ltd. v. Sinitha, (2012) 2 SCC 356 : (2012) 1 SCC (Civ) 881 : (2012) 1 SCC (Cri) 659] , a two-Judge Bench of this Court understood the scope of Section 163-A of the Act to be enabling an insurer to raise the defence of negligence to counter a claim for compensation. The principal basis on which the conclusion in Sinitha case [National Insurance Co. Ltd. v. Sinitha, (2012) 2 SCC 356 : (2012) 1 SCC (Civ) 881 : (2012) 1 SCC (Cri) 659] was reached and recorded is the absence of a provision similar to sub- section (4) of Section 140 of the Act in Section 163-A of the Act. Such absence has been understood by the Bench to be a manifestation of a clear legislative intention that unlike in a proceeding under Section 140 of the Act where the defence of the insurer based on negligence is shut out, the same is not the position in a proceeding under Section 163-A of the Act.

8. From the above discussion, it is clear that grant of compensation under Section 163-A 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 163-A(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 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A 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 were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory 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 163-A of the Act, it is not open for the insurer to raise any defence of negligence on the part of the victim."

The Apex Court has held that in a case under Section 163(A) of the MV Act, it is not open for the insurer to raise any defence of negligence on the part of the victim, as such, impugned judgment passed by the learned Tribunal, dismissing the

claim application is not sustainable in the eyes of law, as such, same may be set aside.

Mr. Manish Kumar, learned counsel for the Insurance Company has submitted that judgment passed by Hon'ble Supreme Court is binding upon the parties. However, for computation of compensation of the injured/claimant under Section 163(A) of the MV Act, the matter may be remanded before the concerned learned Tribunal on limited question with regard to computation of compensation as learned Tribunal has not adjudicated the income, age, expenses of medical expenditure and financial loss to the claimant/injured who has suffered permanent disability.

Learned counsel for the Insurance Company has further submitted that owner has also filed written statement as well as document before the learned Tribunal. On the basis of material the learned Tribunal has adjudicated that there is no violation of terms and conditions of the policy and the Insurance Coverage was there with regard to the offending vehicle, truck bearing registration no.WB-23B-5588 at the time of accident dated 03.01.2009.

Learned counsel for the appellant has submitted that some time frame may be given to the learned Tribunal for final adjudication, if remanded as the occurrence is of dated 03.01.2009.

Considering the rival submissions of the parties and looking into the facts and circumstances of the matter, it appears that claim application was filed under Section 163(A) of the MV Act. So far the offending vehicle Truck bearing registration no.WB23- 5588, which was driven by the injured, Damodar Yadav is concerned, it was duly insured before the Oriental Insurance Company Ltd. vide Policy No.311190/2009/548, valid from 10.06.2008 to 09.06.2009 and the insured has not violated any terms and conditions of the policy as held by the learned Tribunal while deciding the issue nos.4, 5 and 6. The same have not been assailed by the Insurance Company and attains finality.

So far the issue no.3 is concerned, that has also been decided in favour of the claimant, but so far the issue nos.1, 2 and 7 are concerned, the learned Tribunal has given a finding against the claimant, who has preferred this appeal.

Accordingly, the finding given by the learned Tribunal with regard to issue nos.1, 2 and 7 are hereby set aside in view of the judgment passed by the Apex Court in the case of Sunil Kumar (Supra) .

The matter is remitted before the learned Tribunal to adjudicate the issue, with regard to quantum of compensation entitled by the claimant, under Section 163(A) of the MV Act within a period of 60 days from the date of appearance of the parties. Since the owner is not necessary party and the Oriental Insurance Company Ltd. is represented by learned counsel, Mr. Manish Kumar, as such, it is expected that claimant as well as Oriental Insurance Company Ltd. shall appear before the learned Tribunal within a fortnight from today.

The instant Miscellaneous Appeal is accordingly remanded to the court below in view of the reasons stated above.

The instant Miscellaneous Appeal is hereby disposed of.

(Kailash Prasad Deo, J.) sandeep