Jharkhand High Court
Sushma Sinha & Ors vs The Divisional Manager on 16 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 71 of 2018
......
Sushma Sinha & Ors. ...... Appellants
Versus
The Divisional Manager, The New India Assurance Co. Ltd. (Legal Cell) &
Anr. ......Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
......
For the Appellants : Mr. Nikhil Ranjan, Advocate
For the Respondent No.1 : Mr. D.C. Ghosh, Advocate
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11/Dated: 16/03/2021.
Heard, learned counsel for the parties.
Learned counsel for the appellants has submitted that deceased was
travelling in tempo bearing registration no.JH-01K-7297, which was dashed
by an unknown truck, but the learned Tribunal has considered that there is
no fault on the part of the tempo driver and held that joint tortfeasor
liability has not been established by the claimants in view of the judgment
passed by the Apex Court in the case of Khenyei vs. New India Assurance
Co. Ltd. & Ors., reported in AIR 2015 SC 2261 corresponding SCC 2015 (9)
SCC 273.
Learned counsel for the appellants has further submitted that case of
the claimants is covered under Section 165 of the MV Act, which reads as
follows:-
"165. Claim Tribunals.- (1) A State Government may, by notification in
the Official Gazette, constitute one or more Motor Accidents Claims Tribunals
(hereafter in this Chapter referred to as Claims Tribunal) for such area as may be
specified in the notification for the purpose of adjudicating upon claims for
compensation in respect of accidents involving the death of, or bodily injury
to, persons arising out of the use of motor vehicles, or damages to any
property of a third party so arising, or both.
Explanation.- For the removal of doubts, it is hereby declared that the
expression "claims for compensation in respect of accidents involving the death of
bodily injury to persons arising out of the use of motor vehicles" includes claims for
compensation under [Section 164].
(2) A Claims Tribunal shall consist of such number of members as the State
Government may think fit to appoint and where it consists of two or more members,
one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims
Tribunal unless he-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of a High Court 1 [or as a
District Judge].
(4) Where two or more Claims Tribunals are constituted for any area, the
State Government, may by general or special order, regulate the distribution of
business among them."
Learned counsel for the appellants has further submitted that in a case
of Shivaji Dayanu Patil & Anr. vs. Vatschala Uttam More (Smt), reported in
1991 (3) SCC 530 with respect to claim under Section 140 of the MV Act and
New India Assurance Company Limited vs. Yadu Sambhaji More & Ors.,
reported in 2011 (2) SCC 416, the Apex Court held that where a person was
standing on the road and a oil tanker got fire due to which the person
sustained injury though he was not travelling from motor vehicle, but
considered the accident within the purview of the motor vehicle Act and the
compensation was paid accordingly.
Learned counsel for the respondent no.1/ Insurance Company, Mr.
D.C. Ghosh has submitted that the case cited by the appellants is
distinguishable on the ground that claimants are third party as the deceased
was a third party to the accident, which caused because of the motor vehicle.
Here is a case where the deceased was travelling in one of the tempo, which
was hit by unknown truck, as such, the claimants are entitled for the
compensation but under the solatium scheme not under the motor vehicle
act which has to be paid by the State Authority.
Learned counsel for the appellants has further submitted that LCR is
required to be perused so as to ascertain the facts in dispute between the
parties.
In the meantime, he will also bring certain judgment before this Court
to satisfy that even in that case when a person is sitting on the tempo and
there is no fault on the part of the tempo driver, which was hit by the
unknown truck and the deceased, who was a passenger of the tempo is a
third-party, so far compensation under the motor vehicle act is concerned.
It appears that, LCR has already been received.
Considering the same, let the appeal be Admitted for hearing.
Parties are at liberty to mention the case where the physical court starts
after filing the relevant judgment before the Ho'nble Court.
(Kailash Prasad Deo, J.)
R.S.
