Delhi District Court
Smt. Nazma vs Star Bus Services Pvt. Ltd on 1 July, 2022
DLCT010018722016
Presented on : 26-05-2016
Registered on : 26-05-2016
Decided on : 01072022
Duration : 06 Years 01 Months
IN THE TRIBUNAL OF PRESIDING OFFICERMACT02,
CENTRAL, TIS HAZARI COURTS DELHI, PRESIDED OVER BY
Sh. LOVLEEN
MACT No. 57132/16
1. SMT. NAZMA
Widow of Sh. Wazid Ali,
2. SANA PRAVEEN
D/o late Sh. Wazid Ali,
Both R/o H.No. 33/A/1, Khureji Khas,
Delhi. . ......Petitioners.
VERSUS
1. STAR BUS SERVICES PVT. LTD
B1, Kalindi Colony,
New Delhi
MANOJ KUMAR,
S/o Sh. Prakash Singh
150, BlockS74, Harizan Basti,
Dr. Ambedkar Nagar, Pushpa Bhawan,
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New Delhi(Owner)).
2. NATIONAL INSURANCE CO. LTD.
26, 2nd Floor, EMCA House,
23/23B, Ansari Road, Daryaganj,
Delhi. (Insurer). ....Respondents.
The particulars of FormXVII of the Modified Claims Tribunal Agreed
Procedure, in terms of directions given by the Hon'ble Delhi High Court in
the judgment titled as 'Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors., FAO
No. 842/2003 dated 08.01.2021 are as under:
1. Date of the accident 18/09/2015
2. Date of filing of FormI - First Accident N.A.
Report (FAR)
3. Date of delivery of FormII to the victim(s) N.A.
4. Date of receipt of FormIII from the Driver N.A.
5. Date of receipt of FormIV from the Owner N.A.
6. Date of filing of the FormVInterim Accident N.A.
Report (IAR)
7. Date of receipt of FormVIA and FormVIB N.A.
from the Victim(s)
8. Date of filing of FormVII - Detailed Accident 26/05/2016
Report (DAR)
9. Whether there was any delay or deficiency on N.A.
the part of the Investigating Officer? If so,
whether any action/ direction warranted?
10. Date of appointment of the Designated Officer N.A.
by the Insurance Company
11. Whether the Designated Officer of the Insurance N.A.
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Company submitted his report within 30 days of
the DAR?
12. Whether there was any delay or deficiency on N.A.
the part of the Designated officer of the
Insurance Company? If so, whether any action/
direction warranted?
13. Date of response of the claimant(s) to the offer N.A.
of the Insurance Company.
14. Date of the award 01/07/2022
15. Whether the claimant (s) was/were directed to Yes
open savings bank account(s) near their place of
residence?
16. Date of order by which claimant(s) was/were N.A.
directed to open savings bank account(s) near his
place of residence and produce PAN Card and
Adhaar Card and the direction to the bank not
issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook.
17. Date on which the claimant(s) produced the 30/09/2021 &
passbook of their savings bank account near the 28/10/2021
place of their residence along with the
endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the R/o H.No. 33/A/1,
Claimant(s). Khureji Khas, Delhi.
19. Whether the claimant(s) savings bank account(s) Yes
is near his place of residence?
20. Whether the claimant(s) was/were examined at Yes
the time of passing of the award to ascertain
his/their financial condition?
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AWARD/JUDGMENT
FACTUAL POSITION & PLEADINGS
1. A DAR was filed on 26.05.2016 by the Investigating Officer in
the presence of all the parties before by Ld. Predecessor. The DAR was filed
in respect of a Motor Vehicular Accident which took place on 18.09.2015 at
about 02:30 P.M at a spot situated opposite Shop No. 2261, H. C. Sen Marg,
main Chandni Chowk, Delhi falling within the jurisdiction of PS Kotwali,
Delhi in which one Wazid Ali S/o Abdul Ahmed (hereinafter referred to as
"deceased") lost his life. As per DAR at the relevant date, time and place
mentioned above a bus bearing registration No. DL1PC6908(hereinafter
referred to as "offending vehicle"), which was being driven by its driver at a
high speed and in a rash and negligent manner, hit multiple persons, objects
and vehicles leading to the death of 03 persons (including the deceased) and
injuries on the person of 07 persons. An FIR No. 0798/2015 PS Kotwali
was registered at the instance of one eye witness namely Sh. Rajesh Kumar.
During the course of investigation, it was discovered that the deceased was
the driver of the offending vehicle. The dead body of the deceased was
subjected to a postmortem and in due course it was reported that the
deceased died as a result of coronary artery disease related to myocardial
infarction (natural cause). Consequently, an abated chargesheet U/s
279/337/338/304A IPC was filed in the Court of Ld. MM concerned against
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the deceased himself by the police. R1 is stated to be the drivercumowner
of the offending vehicle. R1 is stated to be the owner of the offending
vehicle. R2 is stated to be the insurer of the offending vehicle. DAR was
treated as a claim petition by my Ld. Predecessor vide order dated
26.05.2016. My Ld. Predecessor also directed the R2/insurance company to
file a legal offer/reasoned decision in response to the said DAR. R1 was
also directed to file his written statement. Petitioners were also directed to
file statement of facts in the prescribed Form G.
2. Subsequently, the present petitioners filed a petition U/s 163A of
Motor Vehicles Act seeking compensation to the tune of Rs. 10,00,000/
from the owner of the offending vehicle (R1) and the insurer of the
offending vehicle (R2) on the ground that the accident in question occurred
due to the failure of the brakes of the offending vehicle.
3. No written statement was filed by R1 and its defence was struck
off vide order dated 24.04.2018.
4. R2 filed a written statement wherein it seeks to avoid liability
on the ground that the deceased was driving the offending vehicle at a high
speed and in violation of traffic rules and was himself responsible for the
occurrence of the accident. R2 claims that the present petition is not
maintainable under the provisions of Motor Vehicle Act. However, it is
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admitted that at the relevant time the offending vehicle was covered by an
Insurance policy issued by itself.
ISSUES
5. Vide order dated 11.09.2018, the following issues were framed
by the Ld. Predecessor of this Tribunal :
1. Whether on 18/09/2015 at about 2:30 P.M
near Sen Road, Opp Shop No. 2261 Sh. Wazid
Ali received fatal injuries due to road accident
arising out of use of Bus bearing No. DL1PC
6908?OPP
2. Whether the petitioners are entitled for
compensation? If so, to what amount and from
whom?
3. Relief.
PETITIONERS' EVIDENCE
6. The petitioners examined petitioner no. 1 Smt. Nazma as PW1
in support of their claim. PW1 filed an affidavit Ex PW1/1 wherein she
stated :
(i) that the petitioners are the widow and daughter
respectively of the deceased and were completely
dependent on him;
(ii) that the accident in question occurred due to sudden
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failure of the brakes of the offending vehicle;
(iii) that the deceased was removed to Aruna Asaf Ali,
Government hospital where he was declared as brought
dead;
(iv) that a sum of Rs. 40,000/ was spent on the last rites
of the deceased;
(v) that at the relevant time deceased was earning Rs.
3,300/ per month from his employment under R1;
PW1 has relied upon following documents :
"Ex. PW1/A is the postmortem report;
Ex. PW1/B is the FIR;
Ex. PW1/D is the final report u/s 173
Cr.PC;
Ex. PW1/E (OSR) is the copy of Aadhar
Card; &
Ex. PW1/F (OSR) is the copy of Aadhar
card of daughter of PW1."
6.1 PW1 was not crossexamined on behalf of the respondents.
6.2 Petitioners' evidence was then closed by their Counsel on
10.12.2019.
7. No evidence was led in defence by either of the respondents.
FINDINGS
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8. Oral submissions were advanced on behalf of the Petitioners and
R2/ Insurance Company. Written submissions were also filed on behalf of
petitioners as well as respondent no. 2.
9. I have perused the record and my issue wise findings are as
under:
ISSUES NO. 1 & 2
"Whether on 18/09/2015 at about 2:30 P.M near
Sen Road, Opp Shop No. 2261 Sh. Wazid Ali
received fatal injuries due to road accident
arising out of use of Bus bearing No. DL1PC
6908?"
&
"Whether the petitioners are entitled for
compensation?If so, to what amount and from
whom?"
10. Both the issues are interconnected and shall be adjudicated
together.
11. It may be noted that the procedure followed for proceedings
conducted by an accident tribunal is similar to that followed by a civil court
and in civil matters the facts are required to be established by preponderance
of probabilities only and not by strict rules of evidence or beyond reasonable
doubts, as are required in a criminal prosecution. The burden of proof in a
civil case is never as heavy as in a criminal case, but in a claim petition under
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the M.V. Act, this burden is infact even lesser than that in a civil case.
Reference in this regard can be made to the prepositions of law laid down by
the Hon'ble Supreme Court in the case of Bimla Devi and others Vs.
Himachal Road Transport Corporation and others, reported in (2009) 13
SC 530, which were reiterated in the subsequent judgment in the case of
Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil
Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs.
Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
12. As per petitioners, the deceased was driving the offending
vehicle at the relevant time and due to the failure of brakes, the accident in
question took place leading to the death of 03 persons (including the
deceased) and injuries on the person of 07 persons. It may be noted here that
there is no dispute about the fact that the deceased was driving the offending
vehicle at the relevant time. As per chargesheet Ex. PW1/D, the deceased
died as a result of coronary artery disease related to myocardial infarction
(natural cause). Having placed reliance on the said chargesheet, the
petitioners could not be allowed to plead differently in order to escape the
effect of the said document as well as the expert medical opinions mentioned
therein. Accordingly, this Tribunal is constrained to hold that the deceased
lost his life as a result of coronary artery disease related to myocardial
infarction (natural cause) as mentioned in the chargesheet Ex. PW1/D. This
fact takes the case out of the purview of Section 163A of M.V. Act as the
petitioners fail to prove, even prima facie, that the deceased lost his life due
to an accident arising out of the use of offending vehicle.
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13. Even if it is assumed for the sake of arguments that the deceased
lost his life in the accident in question arising out of the use of offending
vehicle, still the petitioners would have to convince this Tribunal as to
whether, in the peculiar facts of this case, they (petitioners) could claim
compensation U/s 163A of M.V. Act from the owner and insurer of the
offending vehicle. Here it would be appropriate to firstly deal with the
assertion of the petitioners that the accident in question occurred due to the
failure of brakes of the offending vehicle. It may be noted that there is no
doubt in the mind of this Tribunal that the question of 'negligence' is
irrelevant in proceedings U/s 163A of M.V. Act. This point is being
adjudicated here as petitioners have consistently chosen to rely upon said
claim. No doubt, the said assertion of petitioners (that accident occurred due
to failure of brakes) has gone unrebutted on account of absence of any cross
examination in this regard. But the same could not be acted upon by this
Tribunal until and unless the said assertion of PW1 is corroborated by any
independent material. Moreso, in view of the fact that PW1 is not a trained
person who is aware about the mechanical functioning of any vehicle. In
this regard, it would be appropriate to refer to the chargesheet Ex. PW1/D
which reflects that mechanical inspection of offending vehicle was carried
out during the course of investigation. A copy of mechanical inspection
report of offending vehicle was placed on record at the time of filing of DAR
and which reflects that the braking system of the offending vehicle was
working absolutely fine. In these circumstances, it would not be appropriate
to uphold the claim of PW1 that the brakes of the offending vehicle had
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failed at the relevant time leading to the occurrence of accident in question.
Accordingly, the petitioners could not be allowed to claim that the accident in
question occurred on account of any negligence on the part of owner of the
offending vehicle.
14. Even otherwise, the peculiar facts of this case seem to take this
matter out of the purview of Section 163A of M.V. Act. In this regard, this
Tribunal relies upon the observations made by Hon'ble Madras High Court in
The Divisional Manager, TATA AIG General Insurance Company Ltd.
Vs. A.C. Jagadeesann & Anr., C.M.A. No. 2638/2019 & CM.P.No.
12817/2019 dated 04/03/2022 as follows :
24. The issue regarding the filing of a simultaneous application under
Section 140 / 163A and Section 166 of the Act came up for
consideration before the Hon'ble Supreme Court in the Judgment of
Deepal Girishbhai Soni and others v. United India Insurance
Company Limited, Baroda [(2004) 5 SCC 385].
25. A Bench consisting of the Hon'ble Chief Justice and two other
Judges, traced the legislative history and after analysing the relevant
provisions of Section 140, 163A and 166 observed as follows:
"39. Section 163A was introduced in the Act
by way of a social security scheme. It is a code by
itself. It appears from the Objects and Reasons of the
Motor Vehicles (Amendment) Act, 1994 that after
enactment of the 1988 Act several representations
and suggestions were made from the State
Governments, transport operators and members of
public in relation to certain provisions thereof.
Taking note of the observations made by the various
Courts and the difficulties experienced in
implementing the various provisions of the Motor
Vehicles Act, the Government of India appointed
a Review Committee. The Review Committee in its
report made the following recommendations:
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"The 1988 Act provides for enhanced
compensation for hit and run cases as well as for no
fault liability cases. It also provides for payment of
compensation on proofoffault basis to the extent of
actual liability incurred which ultimately means an
unlimited liability in accident cases. It is found that
the determination of compensation takes a long time.
According to information available, in Delhi alone
there are 11214 claims pending before the Motor
Vehicle Accidents Tribunals, as on 31.3.1990.
Proposals have been made from time to time that the
finalisation of compensation claims would be greatly
facilitated to the advantage of the claimant, the
vehicle owner as well as the Insurance Company if a
system of structured compensation can be
introduced. Under such a system of structured
compensation that is payable for different clauses of
cases depending upon the age of the deceased, the
monthly income at the time of death, the earning
potential in the case of the minor, loss of income on
account of loss of limb etc., can be notified. The
affected party can then have the option of either
accepting the lump sum compensation as is notified
in that scheme of structured compensation or of
pursuing his claim through the normal channels. The
General Insurance Company with whom the matter
was taken up, is agreeable in principle to a scheme of
structured compensation for settlement of claims on
"fault liability" in respect of third party liability
under Chapter XI of M.V. Act, 1988. They have
suggested that the claimants should first file their
Claims with Motor Accident Claims Tribunals and
then the insurers may be allowed six months time to
confirm their prima facie liability subject to the
defences available under Motor Vehicles Act, 1988.
After such confirmations of prima facie liability by
the insurers the claimants should be required to
exercise their option for conciliation under structured
compensation formula within a stipulated time."
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The Bench ultimately held as follows:
"57.We, therefore, are of the opinion that
remedy for payment of compensation both under
Section 163A and 166 being final and independent of
each other as statutorily provided, a claimant cannot
pursue his remedies thereunder simultaneously. One,
thus, must opt/elect to go either for a proceeding under
Section 163A or under Section 166 of the Act, but not
under both."
The learned Judges had in no clear terms stated that it is no doubt true that
the Motor Vehicles Act was a beneficial legislation requiring a liberal
construction, however, its trite that in such cases the Courts should not
travel beyond the scheme of the legislation and extend the statutory
benefit to those who are not covered thereby.
26. The Hon'ble Supreme Court in the case reported as Shivaji Dayanu
Patil and another v. Smt.Vatschala Uttam More [AIR 1991 SC 1769]
has touched upon the introduction and the statement of the objects and the
reasons for amending the 1939 Act to introduce the concept of "No Fault
Liability". The Hon'ble Supreme Court held as follows:
"There has been a rapid development of road
transport during the past few years and large increase in
the number of motor vehicles on the road. The incidence
of road accidents by motor vehicles has reached serious
proportions. During the last three years, the number of
road accidents per year on the average has been
around 1.45 lakhs and of these the number of fatal
accidents has been around 20,000 per year. The victims
of these accidents are generally pedestrians belonging to
the less affluent sections of society. The provisions of
the Act as to compensation in respect of accidents can be
availed of only in cases of accidents which can be
proved to have taken place as a result of a wrongful act
or negligence on the part of the owners or drivers of the
vehicles concerned. Having regard to the nature of
circumstances in which road acci dents take place, in a
number of cases, it is difficult to secure adequate
evidence to prove negligence. Further, in what are
known as "hitandrun" accidents, by reason of the
identity of the vehicle involved in the accident not being
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known, the persons affected cannot prefer any claims for
compensation. It is, therefore, considered necessary to
amend the Act suitably to secure strict enforcement
of road safety measures and also to make, as a measure
of social justice, suitable provisions first for
compensation without proof of fault or negligence on the
part of the owner or driver of the vehicle and, secondly,
for compensation by way of solatium in cases in which
the identity of the vehicle causing an accident is
unknown. "
27. The Judgment reported as Ningamma and another v. United In
dia Insurance Co. Ltd., [(2009) 13 SCC 710] was another case where
the Hon'ble Supreme Court had discussed Section 163A. In that case, the
deceasedvictim had been travelling in a bike that he had borrowed from
the real owner and had hit a bullock cart carrying iron sheets, as a result
of which he sustained fatal injuries. His legal representatives thereupon
sued the owner of the motor bike that the deceased had borrowed and the
insurance company. The Hon'ble Judges of the Supreme Court after dis
cussing the law on the subject had held that in order to claim compensa
tion, the recipient had to be a third party. If the driver is the owner of the
motor vehicle or if the vehicle had been driven by another, he would step
into the shoes of the owner and therefore, from a reading of Section
163A, it is clear that the legal representative of the deceased is not entitled
to compensation. This Judgment had gone on to consider the question as
to whether the legal representatives could claim compensation under Sec
tion 166 of the Motor Vehicles Act. The Bench held that if the claimants
are able to prove the negligence of the deceased in the accident then they
could seek compensation under Section 166 of the Act. Therefore, a read
ing of the Judgment clearly indicates that the Hon'ble Supreme Court had
clearly laid down that the victim of an accident or his legal representatives
are not left remediless. It only states that in order to claim compensation
under Section 163A, a claim cannot be made if the victim himself is the
owner of the vehicle which has caused the accident without any third
party intervention.
28. In a later Judgment of the Hon'ble Supreme Court reported in United In
dia Insurance Company Limited v. Sunilkumar and another, [AIR 2017
SC 5710], the issue before the Court was as follows:
"Whether in a claim proceeding under Section
163A of the Motor Vehicles Act, 1988, (hereinafter
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referred to as "the Act) it is open to the insurer to raise
the defence / plea of negligence?"
The Bench concluded as follows:
"8. From the above discussion, it is clear that
grant of compensation Under Section 163A 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
163A(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 163A of the Act to be
contemplating any such situation would go contrary to
the very legislative object behind introduction of Section
163A 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 was taking an
unduly long time. In fact, to understand Section 163A of
the Act to permit the Insurer to raise the defence of
negligence would be to bring a proceeding Under
Section 163A of the Act at par with the proceeding
Under Section 166 of the Act which would not only be
selfcontradictory but also defeat the very legislative
intention."
29. In fact, even prior to the above Judgment, another Judgment of the
Hon'ble Supreme Court in Gujarat State Road Transport Corporation v.
Ramanbhai Prabhatbhai and another (1987) 3 SCR 404, reference has
been made to the background in which the Chapter VIIA was introduced in
the Act. The Hon'ble Supreme Court had proceeded to discuss the concept
with an illustration as follows:
"Where a pedestrian without negligence on his
part is injured or killed by a motorist whether negligently
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or not, he or his legal representatives as the case may be
should be entitled to recover damages if the principle of
social justice should have any meaning at all. In order to
meet to some extent the responsibility of the society to
the deaths and injuries caused in road accidents there has
been a continuous agitation through out the world to
make the liability for dam ages arising out of motor
vehicles accidents as a liability without fault. In order to
meet the above social demand on the recommendation of
the Indian Law Commission Chapter VIIA was
introduced in the Act."
and had proceeded to hold as follows:
"It is thus seen that to a limited extent relief has
been granted under section 92A of the Act to the legal
representatives of the victims who have died on account
of motor vehicles accidents. Now they can claim
Rs.15,000 without proof of any negligence on the part of
the owner of the vehicle or of any other person. This part
of the Act is clearly a departure from the usual common
law principle that a claimant should establish negligence
on the part of the owner or driver of the motor vehicle
before claiming any compensation for the death or
permanent disablement caused on account of a motor
vehicle accident."
30. This Court in a Judgment in Sarffia Bee and others v. B.Sathar and
others [2002 ACJ 449] had occasioned to deal with Section 92A of the
said 1939 Act as amended by Act 47 of 1982. The learned Judge has
observed that the provision of 92A of the Motor Vehicles Act, 1939 and
Section 140 of the Motor Vehicles Act 1988, were benevolent provisions
and a liberal interpretation therefore be taken while considering the scope
of these provisions. The learned Judge had briefly touched upon the history
of the introduction of Section 92A in the said Judgment which is extracted
herein below:
"16. Section 92(A) of Motor Vehicles Act, 1939 came
to be introduced by the Act 47 of 1982. Previously, the
provisions of the Act, as to compensation in respect of
accidents, can be availed of only in case of accident
which can be proved to have taken place, as a result of
a wrongful act or negligence on the part of the owner or
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driver of the vehicle concerned. Having regard to nature
and circumstances in which the road accidents take place,
in a number of cases, it is difficult to secure adequate
evidence to prove negligence. It is, therefore, considered
necessary to amend the Act suitably to secure strict
enforcement of road safety measures and also to make, as
a measure of social justice, suitable provisions first for
compensation without proof of fault or negligence on the
part of the owner or driver of the vehicle. This is the
object of introduction of Section 92(A) of the Act.
17. Under Subsection (2) of Section 92A,
the amount first fixed under compensation for 'no fault
liability' was Rs. 15,000/. Thus, Section 92A was in the
nature of a beneficial legislation enacted, with a view
to confer the benefit of expeditious payment of a limited
amount by way of compensation to the victims of an
accident arising out of the use of a motor vehicle on the
basis of no fault liability'. In the matter of interpretation
of a beneficial legislation, the approach of the Courts is
to adopt a construction which advances the beneficent
purpose underlying the enactment in preference to a
construction which tends to defeat that purpose. This
principle has been laid down by the Apex Court in
(Shivaji Dayanu Patil v. Vatschala Uttam More); (Motor
Owners' Insurance Co. Ltd. v. Jadayji Keshayji Modi)
and 1987 ACJ 411 : (AIR 1987 SC 1184) (SC) (Skandia
Insurance Co. Ltd. v. Kokilaben Chandravadan)."
31. The Division Bench of the Karnataka High Court in one of the Judgment
reported as Appaji V. M.Krishna [(2005) ACC 591], had occasion to trace
out the legislative history of the no fault liability. The Bench had categorically
observed as follows:
"It is evident from the above that Section
163A was never intended to provide relief to those who
suffered in a road accident not because of the
negligence of another person making use of a motor
vehicle, but only on account of their own rash,
negligent or imprudent act resulting in death or
personal injury to them. The recommendations of the
Law Commission were concerned more with the victims
MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 17/28
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of hit and run accident cases where the particulars of
offenders could not be ascertained. It also expressed
concern about the security of victims of road accidents
and recommended dispensing with proof of fault on the
part of the owner or driver of the vehicle. The
recommendations it is clear were made from the point
of view of victims of accidents on the roads more than
those who were responsible for the same. The Review
Committee too had viewed the situation from the point
of view of such victims and expressed concern about the
time it took for disposal of ordinary cases before the
Tribunals. The objects and reasons underlying the
introduction of the provision also envisaged adequate
compensation to victims of road accidents without
going into what was described as long drawn
procedure."
32. The line was therefore clearly drawn as to who could claim
compensation under the No Fault Liability. As the term suggest, it is an
accident that has occurred not on account of the fault of the victim but
the fault of another and the victim is not bound to prove the other's
fault. If the legislative intent was to provide compensation to the
person who was himself instrumental for the accident then the
principle of "Contributory Negligence" would be rendered otiose.
............................
............................
34. Considering the fact that the entire dispute revolves around the interpretation of Section 163A, it would be necessary to extract the specific provision 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 hav ing 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 aris ing out of the use of motor vehicle, compensation, as in dicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.--For the pur poses of this subsection, "permanent disability" shall MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 18/28 Digitally signed by LOVLEEN LOVLEEN Date:2022.07.01 16:06:23 +0530
have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 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. "
35. Section 163A (1) can be broken down as follows:
"(a)The Section opens with a non - obstante clause that this provision would apply even if there is any contrary provision in this Act or any other Law which is in force during the relevant time.
(b) The liability to pay in the case of death or permanent disability rests upon the owner of the motor vehicle or its authorised insurer which arises out of the use of the motor vehicle.
(c) Such compensation is payable to the legal heirs or the victim himself."
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36. The scheme of the Act contemplates 4 players the victim, the driver of the offending vehicle, owner of the offending vehicle and lastly, its insurer. In any accident which results in any damage to person or property the person who is primarily at fault is the driver of the vehicle that caused the accident. Once, the fault is fixed on the driver, the owner of the vehicle becomes vicariously liable. At times the owner and the driver may be the same person. Thereafter, if the vehicle possesses a valid insurance then the insurer is bound to indemnify the owner of the vehicle. Therefore, considering the object of the Act and the judicial pronouncements, it is clear that a person claiming compensation under the "No Fault Liability"
has to first establish a third party involvement in the mishap. The Judgment in United India Insurance Company Limited v. Sunilkumar and another, [AIR 2017 SC 5710], only emphasis that the Insurer cannot set up the defence of negligence, it has not done away with the primary proof that the accident involved a third party intervention / involvement.
37. The facts in the case of Ramkhiladi and another v. The United India In surance Company and another [2020 (2) SCC 550] will squarely apply to the facts of the instant case. The learned Judges had concisely set out the question that was posed for the Court's consideration as follows:
" 5..........is whether, in the facts and circumstances of the case and in a case where the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was negligent are not joined as parties to the claim petition, meaning thereby that no claim petition is filed against them and the claim petition is filed only against the owner and the insurance company of another vehicle which was driven by the deceased himself and the deceased being in the shoes of the owner of the vehicle driven by himself, whether the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163A of the Act?; Whether the deceased not being a third party to the vehicle No. RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163A of the Act from the owner of the said vehicle? "
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38. In Ramkhiladi and another v. The United India Insurance Company and another [2020 (2) SCC 550], the Tribunal had relied upon the principle that in a claim under Section 163A the claimant was not required to plead or establish negligence. The High Court had overturned this finding and held that the application under Section 163A of the Act against the Insurance Company of the vehicle driven by the deceased himself is liable to be dismissed. This was the subject matter of challenge before the Hon'ble Supreme Court. The learned Judge explained the principle and the purport of a claim under section 163A in Para 5.5 which is extracted hereinbelow:
"5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811."
39. The tenor and purport of the above Judgment is the principle of 'No Fault Liability" obviously implies that the injury or death or the claimant is the result of the involvement of a third party with the claimant being an innocent by stander and the accident has occurred out of no fault of his.
15. The above observations clearly demonstrate that the claim made by petitioners U/s 163A of M.V. Act is not maintainable against the owner and insurer of the offending vehicle. Accordingly, no compensation is admissible to the petitioners under the provisions of M.V. Act. Both the issues are accordingly decided against the petitioners and in favour of the MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 21/28 Digitally signed by LOVLEEN LOVLEEN Date:
2022.07.01 16:06:56 +0530respondents.
16. The reliance placed by petitioners on the observations made by Hon'ble Supreme Court of India in National Insurance Co. Ltd. Vs. Prembai Patel, (2005) 6 SCC 172 is misplaced as the said observations were made in the context of 'extent of liability' of the insurer, whereas in the case in hand, the "liability" itself, of the owner and insurer of the offending vehicle, does not exist.
ISSUE NO.3/ RELIEF
17. In view of the observations made under aforesaid issues no. 1 & 2, no relief is admissible to the petitioners in the present matter. Hence, the present petition stands dismissed.
File be consigned to Record Room.
Digitally
signed by
LOVLEEN
LOVLEEN Date:
2022.07.01
16:07:06
+0530
Announced in the open court (LOVLEEN)
on this 01st July, 2022 PO: MACT02 (CENTRAL):
DELHI /01/07/2022
MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 22/28 Digitally signed by LOVLEEN Date: LOVLEEN 2022.07.01 16:07:15 +0530 FORM XV SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES
1. Date of accident. : 18.09.2015
2. Name of the deceased : Sh. Wazid Ali
3. Age of the deceased. : 40 Years
4. Occupation of the deceased.: Private Job
5. Income of the deceased : N.A.
6. Name, age and relationship of legal representative of deceased: S. No. Name Age Relation (I) Smt. Nazma 50 Years Wife of the deceased
(ii) Ms. Sana Parveen 20 years Daughter of deceased Computation of Compensation Sr. No. Heads Awarded by the Claims Tribunal
7. Income of the deceased(A) MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 23/28 Digitally signed by LOVLEEN LOVLEEN Date:
2022.07.01 16:07:27 +05308. AddFuture Prospects (B)
9. LessPersonal expenses of the deceased(C)
10. Monthly loss of dependency[(A+B) C=D]
11. Annual loss of dependency (Dx12)
12. Multiplier(E)
13. Total loss of dependency (Dx12xE= F)
14. Medical Expenses(G) MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 24/28 Digitally signed by LOVLEEN Date: LOVLEEN 2022.07.01 16:07:40 +0530
15. Compensation for loss of consortium(I)
16. Compensation for loss of estate(J)
17. Compensation towards funeral expenses(K)
18.
TOTAL
COMPENSATIO
N
(F+G+H+I+J+K=L
)
19.
RATE OF
INTEREST
AWARDED
20.
Interest amount up
to the date of award
21.
Total amount
including interest
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22.
Award amount
released
23.
Award amount kept
in FDRs
24.
Mode of
disbursement of the
award amount to the
petitioner (s)
25.
Next date for
compliance of the
award
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Date:
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(LOVLEEN)
P.O. MACT (Central - 02)
Delhi /01/07/2022
MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 26/28 Digitally signed by LOVLEEN Date: LOVLEEN 2022.07.01 16:08:10 +0530 CONCLUSION
1. As per award dated 01/07/2022.
2. Petition stands dismissed.
Digitally signed by LOVLEENLOVLEEN Date:
2022.07.01 16:08:20 +0530(LOVLEEN) P.O. MACT (Central - 02) Delhi /01/07/2022 MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 27/28 Digitally signed by LOVLEEN Date: LOVLEEN 2022.07.01 16:08:30 +0530 MACT NO. 5713216 01/07/2022 Present : None.
Vide my separate award of even date, the present matter stands disposed of.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Ahlmad is directed to email an authenticated copy of the award to the insurer as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021.
Ahlmad is further directed to comply with the directions passed by the Hon'be High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room.Digitally signed by LOVLEEN Date:
LOVLEEN 2022.07.01 16:08:40 +0530 (LOVLEEN) P.O. MACT (Central - 02) Delhi /01/07/2022 MACT No. 57132/16 Smt. Nazma & Anr. Vs.Wazid Ali & Ors. Pages No. 28/28 Digitally signed by LOVLEEN LOVLEEN Date:2022.07.01 16:08:52 +0530