Shri. Dori Singh & Another ....... ... vs Smt. Bhoori & Others
2021 Latest Caselaw 1041 UK

                                                            Reserved

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Appeal from Order No. 188 of 2012

Shri. Dori Singh & another                                 ....... Appellants

                                      Vs.

Smt. Bhoori & others                                       ......Respondents



Present: Mr. Kaushal Sah Jagati, Advocate for the appellants.
         Mr. Girish Chandra Lakhchaura, Advocate for respondent nos. 1 and 2.
         Mr. Naveen Singh Bisht, Advocate for respondent no. 3.

                                  Judgment

Hon'ble Ravindra Maithani, J.

The present appeal is directed against the judgment and

order dated 06.04.2012 passed in Motor Accident Claim Petition

No. 35 of 2008 "Smt. Bhoori and another vs. Dori Singh & others" (for

short "the claim petition"), by the Motor Accident Claims

Tribunal/Additional District Judge/3rd Fast Track Court, Udham Singh

Nagar at Rudrapur (for short "the Tribunal"). By the impugned

judgment and order the claim petition of respondent nos. 1 and 2 filed

under Section 163-A of the Motor Vehicles Act, 1988 (for short "the

Act") has been allowed and they have been awarded a total

compensation of Rs.3,90,000/- (Rupees Three Lakh Ninety Thousand

only).

2. According to the claim petition, on 29.12.2007 when the

deceased Zubeda Khatoon was going on a motorcycle along with her

brother-in-law Ishrar, at about 08:30 in the morning, the motorcycle

was hit by a tractor bearing registration no. U.P.-21K/6097 (for short

"the offending vehicle"). Deceased was crushed beneath the offending

vehicle.

3. The appellants who are the owners of the offending

vehicle filed their objections. According to it, the accident occurred

due to the rash and negligent driving of the motorcycle; on the date of

the incident, the motorcycle was carrying three persons on it and in

order to overtake the offending vehicle, the motorcycle hit the

offending vehicle from behind. Parties adduced evidence and after

hearing the parties, the claim petition was allowed and the

compensation awarded by the Tribunal, as stated hereinbefore.

Aggrieved by it, the appellants are in appeal.

4. Heard learned counsel for the parties and perused the

record.

5. Learned counsel for the appellants would submit that the

accident occurred due to rash and negligent driving of the motorcycle,

which hit the offending vehicle from behind; the motorcycle was

carrying three persons; the technical inspection reports of the

motorcycle and the offending vehicle reveal that, in fact, it is the

motorcycle which hit the offending vehicle because the motorcycle

was found damaged from its front also.

6. On the other hand, learned counsel for the respondents,

would submit that no such plea of contributory negligence or

negligence of the motorcycle has ever been taken by the appellants in

their objections. It is submitted that it is not a case of negligence of the

motorcycle driver, instead, it is the offending vehicle which hit the

motorcycle from behind. The witnesses have stated it. There is a

criminal case pending against the driver of the offending vehicle and

the Tribunal rightly assessed the evidence and allowed the claim

petition. Therefore, it is submitted that the appeal deserves to be

dismissed.

7. The only point which has been raised during the course of

argument on behalf of the appellants is with regard to the manner of

the accident, especially, who was negligent which caused the accident.

8. Issues were framed in the claim petition. Issue no. 1

relates to the negligence of the offending vehicle. The Tribunal

evaluated the evidence and concluded that the accident occurred due to

the rash and negligent driving of the offending vehicle.

9. PW-1 Smt. Bhoori has been examined in the claim

petition. She is not an eyewitness to the accident. PW-2 Babu has

witnessed the incident and he has categorically stated that on the date

of the accident, the deceased was going on a motorcycle which was

driven by Ishrar and it was hit from behind by the offending vehicle,

due to which, the deceased crushed beneath the offending vehicle. This

witness has been cross-examined and in his cross-examination, he

admitted that at the time of the accident, the motorcycle was carrying

three persons.

10. The question would be whether merely because the

motorcycle was carrying three persons, it may be inferred that the

motorcycle was being driven in a rash and negligent manner. This

Court will advert to this issue in a little later.

11. The driver of the offending vehicle Jaipal Singh has also

been examined in the claim petition. According to him, at the time of

the accident, the offending vehicle was loaded with Wheat and the

motorcycle was being driven in a rash and negligent manner. The

motorcycle attempted to overtake the offending vehicle, and in this

process, it collided with the offending vehicle. This witness who was

driving the offending vehicle admitted that he was an accused in the

case pertaining to the accident, in which he got himself released on

bail.

12. The claim petition was filed under Section 163 of the Act

(as written in the claim petition). The impugned order writes that the

claim was sought under Section 163-A of the Act. In fact, Section 163

of the Act provides a scheme for payment of compensation in case of

hit and run motor accidents, which the Central Government may

specify. Section 163-A of the Act makes provisions as to payment of

compensation on structured formula basis. Sub-section (2) to it

provides that in claims under Section 163-A of the Act, the claimant is

not required to plead or to establish wrongful act or neglect or default

of the owner of the vehicle. This sub-section reads as hereunder:-

"(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."

13. In the case of Oriental Insurance Co. Ltd. vs. Meena

Variyal and others, (2007) 5 SCC 428, the Hon'ble Supreme Court

interpreted the scope of Sections 163-A and 166 of the Act and

observed as hereunder:-

"27. We think that the law laid down in Minu B. Mehta v.

Balkrishna Ramchandra Nayan1 was accepted by the legislature

while enacting the Motor Vehicles Act, 1988 by introducing

Section 163-A of the Act providing for payment of compensation

notwithstanding anything contained in the Act or in any other law

for the time being in force that the owner of a 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 the

motor vehicle, compensation, as indicated in the Second Schedule,

to the legal heirs or the victim, as the case may be, and in a claim

made under sub-section (1) of Section 163-A of the Act, 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 concerned. Therefore, the victim of an accident or his

dependants have an option either to proceed under Section 166 of

the Act or under Section 163-A of the Act. Once they approach the

Tribunal under Section 166 of the Act, they have necessarily to take

upon themselves the burden of establishing the negligence of the

driver or owner of the vehicle concerned. But if they proceed under

Section 163-A of the Act, the compensation will be awarded in

1. Minu B. Mehta v. Balkrishna Ramchandra Nayan, (1977) 2 SCC 441 : (1977) 2 SCR 886

terms of the Schedule without calling upon the victim or his

dependants to establish any negligence or default on the part of the

owner of the vehicle or the driver of the vehicle."

14. In the case of Reshma Kumari and others vs. Madan

Mohan and another, (2013) 9 SCC 65, while referring to the judgment

in the case of Deepal Girishbhai Soni vs. United India Insurance Co.

Ltd.2, the Hon'ble Supreme Court quoted from that judgment as

hereunder:-

"42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs 40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature.

...This together with the other heads of compensation as contained in Columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.

* * *

46. Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structured formula basis. Sub-Section (1) of Section 163-A contains non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is 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 ...

* * *

51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned

2. (2004) 5 SCC 385 : 2004 SCC (Cri) 1623

provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs 40,000 or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society.

52. It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundant cautela so as to remove any misconception in the minds of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims both under Section 163-A and Section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity."

15. In view of the statutory provisions and the law as laid

down by the Hon'ble Supreme Court, it is abundantly clear that in a

claim under Section 163-A of the Act, the claimants are not required to

plead and establish wrongful act or neglect of the owner of the vehicle.

16. In the case of National Insurance Company Limited vs.

Sinitha & others, (2012) 2 SCC 356, the Hon'ble Supreme Court

interpreted the scope of Sections 140 and 163-A of the Act and held

that though in claim under Section 163-A of the Act, the claimant is

not required to plead or establish "wrongful act", "neglect" or

"default" but such claim can be defeated by raising such plea by the

owner or the insurance company. (In claim under Section 140 of the

Act, the claim cannot be defeated on the grounds of "wrongful act",

"neglect" or "default" as per sub-section (4) to Section 140 of the Act.)

The Hon'ble Supreme Court observed as hereunder:-

"25. A perusal of Section 163-A reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section

163-A of the Act, it is not essential for a claimant seeking compensation to "plead or establish" that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then there is no equivalent of sub-section (4) of Section 140 in Section 163-A of the Act. Whereas under sub-section (4) of Section 140 there is a specific bar whereby the party concerned (the owner or the insurance company) is precluded from defeating a claim raised under Section 140 of the Act by "pleading and establishing" "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163-A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of the Act [through sub-section (4) thereof], having not been embodied in Section 163-A of the Act has to have a bearing on the interpretation of Section 163-A of the Act.

26. In our considered view the legislature designedly included the negative clause through sub-section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163-A of the Act. The legislature must have refrained from providing such a negative clause in Section 163-A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140 and the absence of a similar provision in Section 163-A, in our view, leaves no room for any doubt that the only object of the legislature in doing so was that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163-A of the Act by pleading and establishing "wrongful act", "neglect" or "default".

27. Thus, in our view, it is open to a party concerned (the owner or the insurer) to defeat a claim raised under Section 163-A of the Act by pleading and establishing any one of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason we find no plausible logic in the wisdom of the legislature for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act and in avoiding to include a similar negative bar in Section 163-A of the Act. The object for incorporating sub-section (2) in Section 163-A of the Act is that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-section (4) of Section 140 of the Act from Section 163-A of the Act is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" on to the shoulders of the defence (the owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude that Section 163-A of the Act is founded on the "fault" liability principle."

17. In the instant case, the claim petition was filed under

Section 163-A of the Act. A plea of negligence was taken; issue

framed on it and decided. The same issue is agitated in the appeal.

18. The Court first proceeds to decide about the question of

negligence. Admittedly, there was a collision between the motorcycle

and the offending vehicle. How did it happen? Who was negligent?

This is to be seen. Negligence simply means not taking due care

towards third person which caused legal harm to that third person. So

if A owes a duty towards B but he does not take due care in discharge

of his duties and it resulted into legal damage to B, it is said that the

damage was done due to negligence of A. In the case of contributory

negligence, B also contributes to the consequences that arose from the

negligence of A.

19. Merely because the motorcycle was carrying three

persons, it cannot be said that the accident was an outcome of the

motorcycle. Technical inspection reports have been referred to. If a

motorcycle and a tractor collide, it is not expected that there would be

significant marks on the tractor. On the other hand, the motorcycle

being a very smaller vehicle in comparison to a tractor could definitely

get badly damaged. This is what is in the inspection report in this case.

Therefore, on the basis of the inspection reports, it cannot be said that

the offending vehicle was not rash and negligent in driving when the

accident took place. PW-2 Babu has categorically stated that the

motorcycle was hit from the behind. In their objections the appellants

have stated that in an attempt to overtake the offending vehicle, the

motorcycle hit it from behind, but, this is not stated by DW-1 Jaipal

Singh that the offending vehicle was hit from behind. He stated that in

an attempt to overtake the offending vehicle, the motorcycle collided.

In this case, DW-1 was prosecuted and the charge-sheet was submitted

by the Police. These all attending factors lend support to the statement

of PW-2 Babu. The site plan which has been referred to on behalf of

the appellants, at the time of argument, also supports the claim of the

respondents. In fact, the appellants have been able to plead and

establish that the accident was the result of rash and negligent driving

of the driver of the offending vehicle and the Tribunal has rightly

concluded on this aspect. Therefore, no interference is warranted in the

matter.

20. No other points have been raised on behalf of the

appellants in the appeal.

21. In view of the foregoing discussion, this Court is of the

view that there is no merit in the appeal and it deserves to be

dismissed.

22. The appeal is dismissed.

(Ravindra Maithani, J.) 22.03.2021 Ankit/