Delhi District Court
Madan Mohan vs . National Insurance Company Ltd. Mact ... on 11 July, 2017
Digitally signed
by ANAND
ANAND SWAROOP
AGGARWAL
SWAROOP Location: Delhi
AGGARWAL Date:
2017.07.11
15:17:55 +0530
Madan Mohan Vs. National Insurance Company Ltd. MACT No. 33/16
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
MACT No. 33/16 FIR No. 999/15
ID No. 81/2016 P.S.: Gokal Puri
U/s. 279/338 IPC
In the matter of:
Madan Mohan S/o. Lt. Sh. Rajvir Singh
R/o. 392, GL6, Moonga Nagar, Karawal Nagar, Delhi.
Through:
Ms. Pinki Talukdar (Mobile No.9811452556)
Chamber No. D611, Karkardooma Courts, Delhi - 110 032.
( details given in compliance with Clause 27 of
Modified Claims Tribunal Agreed Procedure) ....... Claimant
Versus
National Insurance Company Limited
OfficeDiv. No. 10, Flat No. 101106, N1, BMC House,
Connaught Place, New Delhi.
......... Defendant
i) Date of institution of Claim Petition : 03.02.2016
ii) Date when reserved for award : 11.07.2017
iii) Date of award : 11.07.2017
CLAIM PETITION U/S. 163A OF MOTOR VEHICLES ACT, 1988
A W A R D
1.CASE AS PLEADED BY CLAIMANT IN CLAIM PETITION On 14.12.2015 at about 9:30 p.m. the claimant was going alongwith his wife on his motorcycle bearing no. DL 5SBZ 3826 on the correct side of the road. Suddenly a unknown tempo being driven at a very high speed, rashly and negligently in a zig zag manner recklessly without taking due cautions and without following the Page No. 1 of 5 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 11.07.2017 Madan Mohan Vs. National Insurance Company Ltd. MACT No. 33/16 rules of road, came and hit the claimant from back side . Thus, the claimant sustained serious and grievous injuries and was immediately taken to the Lok Nayak Hospital, where his MLC was prepared. Thereafter on 15.12.15 he was referred to Narinder Mohan Hospital and Heart Center where treatment was carried on and the claimant was discharged on 23.12.2015. Regarding the accident FIR No. 999/15 on 14.12.2015 u/s. 279/337 IPC was registered at P.S. Gokul Puri, Delhi. The claimant was worker in a factory and used to earn Rs. 40,000/ per annum. Claimant claimed Rs. 5,00,000/ (five lakhs) as compensation from the defendant. 1.2 DAR On 04.08.2016 DAR was filed and it was ordered to be tagged with claim petition. DAR included untrace report u/s. 173 Cr. P. C. concluding that offending vehicle/accused could not be traced.
2 STAND TAKEN BY DEFENDANT IN THE WS.
The injured/claimant in this matter is not a third party and he is owner of motor cycle against whom he is claiming compensation. Before Motor Accidents Claims Tribunal only third party can claim compensation whereas in the present case injured has filed claim petition against himself. The claimant has not sustained any permanent disability in this accident, hence, the petition u/s. 163A of the Motor Vehicles Act, 1988 is liable to be dismissed on this sole ground. The motorcycle bearing chasis no. MBLJA12AEFGK02587 and engine no. JA12ABFGK08484 was insured with National Insurance Co. Ltd. for that period of 24.10.2015 to 23.10.2016 in the name of Madan Mohan vide policy no. 39010231156202818466.
3. Vide order dated 29.08.2016 ld. counsel for claimant has moved an application for necessary directions to Medical Superintendent, GTB Hospital, Dilshad Garden, Delhi for getting the claimant examined at GTB Hospital and for issuance of Disability Certificate.
Page No. 2 of 5 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI / 11.07.2017
Madan Mohan Vs. National Insurance Company Ltd. MACT No. 33/16
4. ISSUES
On 04.10.2016 following issues were framed by ld. predecessor of this tribunal.
(i) Whether petitioner sustained injuries in motor accident happening on 14.12.2015 at about 9:30 am at near foot over Brij Yamuna Vihar, Wazirabad Road, Delhi within the jurisdiction of PS Gokal Puri involving vehicle bearing no. DL 5SBZ 3826? OPP
(ii) Whether petitioners is entitled to compensation? If so, to what amount and from whom ? OPP
(iii) Relief.
5. Vide order dated 01.05.2017 ld. counsel for the insurance company raised an issue as regards maintainability of this claim petition u/s. 163A Motor Vehicles Act, 1988 by the insured against his own insurer.
6. I have heard Mr. Rajneesh, Adv. for insurance company/defendant on the issue maintainability as mentioned above but appeared on 26.05.2017, 10.07.2017 & 11.07.2017 for claimant to address arguments. In the course of arguments ld. counsel for insurance company/defendant relied upon case laws reported as Oriental Insurance Company Ltd. Vs. Rajni Devi & Ors. 2008 ACJ 1441 and Ningamma & Anr. Vs. United India Insurance Co. Ltd. 2009 ACJ 2020. Material available on judicial record perused carefully.
7. It is alright that vide order dated 04.10.2016 issues were framed by ld. predecessor of this tribunal but, in my considered opinion, the issue as regards the very maintainability of claim petition filed by claimant u/s. 163 A Motor Vehicles Act, 1988 could be raised at any stage and the same deserves to be decided promptly inasmuch as this tribunal could be said to be having authority/jurisdiction to decide the issues framed vide order dated 04.10.2016 on merits if and only if the claim petition, out of which abovesaid issues have arosen, is found to be maintainable in terms of provisions of Motor Vehicles Act, 1988 . Claimant herein is the insured and Page No. 3 of 5 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 11.07.2017 Madan Mohan Vs. National Insurance Company Ltd. MACT No. 33/16 defendant herein is the insurer of the motorcycle no. DL 5SBZ 3826 owned by claimant/injured and involved in accident vide FIR No. 999/15 u/s. 279/337 IPC PS Gokul Puri, Delhi.
8. Present claim petition has been filed u/s. 163A Motor Vehicles Act, 1988 inasmuch as the offending tempo (or its driver), which had hit the abovesaid motorcycle being driven by claimant with his wife as pillion rider, could not be traced as per final report u/s. 173 Cr. P. C. submitted by the police. Section 163A of Motor Vehicles Act, 1988 reads as under:
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 authorized 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 subsection, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. (2) In any claim for compensation under subsection (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.
It is to be noted that Section 163A of the Motor Vehicles Act, 1988 makes owner of the motor vehicle or the authorized insurer liable to pay compensation in the circumstances as mentioned in the said section. Hon'ble Supreme Court of India in the case law reported as Oriental Insurance Company Ltd. Vs. Rajni Devi & Ors. 2008 ACJ 1441 as ruled as under: "10. The liability under section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient. The heirs of Janak Raj could not have maintained a claim in terms of section 163A of the Act....."
The liability of authorized insurer would be there only if owner is found to be liable to pay compensation u/s. 163A of Motor Vehicles Act, 1988 inasmuch as under
the contract of insurance the insurer is to indemnify the insured qua any liability Page No. 4 of 5 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 11.07.2017 Madan Mohan Vs. National Insurance Company Ltd. MACT No. 33/16 suffered by him under the provision of Motor Vehicles Act, 1988 in relation to an accident involving third party. Insured and the third party cannot be one and the same person inasmuch as in a contract of insurance insurer is the first party , insured the second party and the person qua whom insured suffers any liability is the third party. The mere fact that claimant/insured has paid premium to the tune of Rs. 50 for Compulsory PA Cover (DriverOwner) does not entitle the claimant/insured to file claim petition u/s. 163A of Motor Vehicles Act, 1988 before Motor Accident Claims Tribunal/this tribunal.
9. Thus, it is observed that claimant/owner/insured cannot file a claim petition u/s. 163A Motor Vehicles Act, 1988 against insurer of the motor vehicle owned by him. Accordingly it is held that present claim petition filed u/s. 163 A Motor Vehicles Act, 1988 by the claimant/insured against his own insurer is not maintainable and the same is liable to be dismissed at this very stage. ORDERED ACCORDINGLY.
10. In view of above conclusion arrived at by this tribunal, this tribunal is not competent to adjudicate the issues framed vide order dated 04.10.2016 and same be treated as deleted.
11. File be consigned to record room.
Pronounced in Open Court on 11.07.2017 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD COURTS / DELHI Page No. 5 of 5 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI / 11.07.2017