(A) Balika Mahli vs Shekh Younesh
2023 Latest Caselaw 1630 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                     M.A. No. 79 of 2018

1(A) Balika Mahli
1(B) Balram Mahali                                              ..... ...... Appellants
                                        Versus
1. Shekh Younesh
2. Divisional Manager, New India Assurance Company Limited
                                                  .... .... Respondents
                                          ------

CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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       For the Appellants              : Mr. Jitendra Nath Upadhyay, Advocate
       For the Respondents             : Mr. Amaresh Kumar, Advocate
                                         Ms. Prachi Mahato, Advocate
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The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good.

Order No.13/Dated: 18th April, 2023 Mr. Jitendra Nath Upadhyay, learned counsel appearing on behalf of the appellants has submitted that the original appellant, namely, Nehal Mahali has died during pendency of this Miscellaneous Appeal and the legal heirs, namely, Balika Mahli, wife of late Nehal Mahali and Balram Mahali, son of late Nehal Mahali have been substituted in terms of order dated 15.06.2022 passed in I.A. No. 5009 of 2021 thus they are on record as appellants.

2. Learned counsel for the appellants has further submitted that the deceased Krishna Mahali, being the driver of Tata 407 bearing registration No. JH-05N-7906, has lost his life on 01.06.2013 while driving Tata-407, which fell down from the bridge in between village Kuldiha and Chiriya Pahari.

3. Learned counsel for the appellants has further submitted that the police registered Jhinkpani P.S. Case No. 2 of 2013 on 02.06.2013 and after investigation the police submitted report that the deceased Krishna Mahali was himself driving the vehicle rashly and negligently and he sustained injury. The claim application of original appellant Nehal Mahali was dismissed by the learned District Judge-III-cum-Motor Vehicles Accident Claims Tribunal, East Singhbhum, Jamshedpur in terms of order dated 01.12.2017 passed in Compensation Case No. 107 of 2015 though there was 3rd party insurance vide policy No. 54020031120200000468.

4. Learned counsel for the appellants has thus submitted that the

dependent of the legal heirs have been debarred from the fruitful legislation made under the Motor Vehicle Act, 1988 and, as such, this Court may interfere with the impugned order.

5. Learned counsel for the appellants has further submitted that the premium for insurance coverage of the driver has already been paid as it appears from the insurance policy, which is marked as Exhibit-2 and, as such, this Court may set aside the impugned order.

6. Mr. Amaresh Kumar, learned counsel for the Insurance Company assisted by Ms. Prachi Mahato, learned counsel has submitted that this Miscellaneous Application is not maintainable neither under Section 163A nor under Section 166 of the Motor Vehicle Act, 1988 because the driver is not covered by insurance for his own fault. Section 163A of the Motor Vehicle Act, 1988 reads as follows:

"[163A. Special provisions as to payment of compensation on structured formula basis.--

(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."

7. Mr. Amaresh Kumar, learned counsel for the Insurance Company has relied upon the judgments passed by the Hon'ble Supreme Court in the cases of "The Oriental Insurance Company Limited Vs. Meena Variyal & Ors." reported in (2007) 5 SCC 428, "New India Assurance Company Limited Vs. Sadanand Mukhi & Ors." reported in (2009) 2 SCC 417, "Eshwarappa @ Maheshwarappa & Anr. Vs. C.S. Gurushanthappa & Anr. reported in (2010) 8 SCC 620 and "Indira Devi & Ors. Vs. Bagada Ram & Anr. reported in (2010) 13 SCC 249, wherein it has been clarified that if the driver of the insured vehicle died because of his own negligence, the claimants being the family members of the deceased are not entitled for any compensation in a 3rd party insurance policy either under Section 163A or under Section 166 of the Motor Vehicle Act, 1988, as such, there is no error

in the impugned judgment passed by the learned Tribunal in view of the judgments rendered by the Hon'ble Supreme Court, therefore, this Court may not interfere with the same.

8. In reply, Mr. Amaresh Kumar, learned counsel for the Insurance Company has submitted that the appellants may withdraw the instant Miscellaneous Appeal but there will be another hurdle for them that the original appellant has opted under the Motor Vehicle Act and has received the compensation under Section 140 of the Motor Vehicle Act and, as such, he cannot take benefit of both the provisions.

9. Mr. Jitendra Nath Upadhyay, learned counsel for the appellants has submitted that the appellants may be given liberty to file an application under the Workman Compensation Act so that the employer who is the owner of the truck may indemnify the loss to the dependent of the family.

10. Considering the rival submissions of the parties, looking into the facts and circumstances of the case and on perusal of the lower Court record, it appears that the occurrence is true. The vehicle was insured as a third party and the driver died because of his own fault, thus in view of the judgment passed by the Hon'ble Supreme Court in the cases of The Oriental Insurance Company Limited (supra), New India Assurance Company Limited (supra), Eshwarappa @ Maheshwarappa (supra) and Indira Devi (supra), the instant Miscellaneous Appeal is dismissed as there is no illegality or irregularity in the impugned order passed by the learned Tribunal.

11. Let the Lower Court Records be sent to the learned Court below.

(Kailash Prasad Deo, J.) Madhav/-