Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Brahmi And Others on 30 December, 2016
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 29 of 2011 .
Reserved on: 16.12.2016 Decided on: 30.12.2016 Oriental Insurance Company Ltd. ...Appellant.
of Versus Smt. Brahmi and others ...Respondents.
Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. Ashwani K. Sharma, Senior Advocate, with Mr. Jeevan Kumar, Advocate.
For the respondents: Mr. Rajiv Rai, Advocate, for respondent No. 1.
Nemo for respondents No. 2 to 6.
Mansoor Ahmad Mir, Chief Justice.
By the medium of this appeal, the appellant insurer has called in question award, dated 15 th December, 2010, made by the Motor Accident Claims Tribunal, Fast ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 2 Track Court, Chamba, District Chamba (HP) (for short "the Tribunal") in M.A.C. No. 17/2010, titled as Smt. Brahmi and .
others versus The Oriental Insurance Company Limited and another, whereby compensation to the tune of ₹ 29,98,432/ with interest @ 7.5% per annum from the date of filing of the of petition till its realization came to be awarded in favour of the claimants and the insurer was saddled with liability (for rt short "the impugned award").
2. The claimants and the ownerinsured of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. The appellantinsurer has called in question the impugned award on the ground that deceased himself was driving the offending vehicle rashly and negligently at the time of the accident, the claimants are the parents and children of the deceased and the ownerinsured is the wife of the deceased, thus, the claim petition was not maintainable.
4. Heard learned counsel for the parties.
::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 35. The following points arise for determination in this appeal:
.
(i) Whether the legal representatives/ heirs of deceasedDesh Raj, who was driving the offending vehicle at the relevant point of time and caused the of accident, can file a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short "MV Act") rt for grant of compensation? and
(ii) Whether the claim petition was maintainable?
6. In order to determine both these points, it is necessary to give a brief resume of the facts of the case herein.
7. The claimants invoked the jurisdiction of the Tribunal under Section 166 of the MV Act for grant of compensation to the tune of ₹ 30,00,000/, as per the break ups given in the claim petition, on the ground that they lost their bread earner, namely Shri Desh Raj, in the vehicular accident, while driving the car, bearing registration No. HP ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 4 542475, on 16th February, 2010, at about 4.30 P.M., at place Nand Gram near Maredi, P.S. Chamba, on his way back .
from Government Senior Secondary School, Jadera.
8. The respondents in the claim petition, i.e. the insurer and the ownerinsured of the offending vehicle, have of filed the replies. The insurer has resisted the claim petition whereas the ownerinsured, who is the widow of deceased rt Desh Raj, has not resisted the claim petition.
9. On the pleadings of the parties, following issues came to be framed by the Tribunal:
"1. Whether Des Raj died on 16.2.2010, at about 4.30 PM at Nand Gram near Maredi within the jurisdiction of P.S. Chamba in a vehicular accident involving vehicle No. HP542475? OPP
2. If issue No. 1 is proved in affirmative, whether the petitioners being dependant of deceased are entitled for the grant of compensation, if so, to what amount and from which of the respondents? OPP
3. Whether the respondent No. 1 is liable to indemnify the owner in respect of death of deceased, who is husband of owner of offending vehicle? OPR2
4. Whether the petition is not maintainable? OPR1 ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 5
5. Whether the offending vehicle was not having valid registration certificate, fitness certificate, valid route permit etc. if so, its effect? OPR1 .
6. Whether the driver of the offending vehicle was not holding a valid and effective driving licence? OPR1
7. Whether the deceased was not third party? OPR1 of
8. Relief."
10. Inrt support of their claim, the claimants examined Dr. Davinder Kumar as PW1, Shri Pankaj Kapoor as PW2, HC Pawan Kumar as PW4 and one of the claimants, namely Sh. Sarwan Kumar, himself stepped into the witness box as PW3. The insurer examined Shri Ramesh Kumar, Branch Manager, as RW1. The owner insured has not led any evidence.
11. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants are the victims of the vehicular accident, which was caused by deceasedDesh Raj while driving car, bearing registration No. HP542475, on 16th February, 2010, at about 4.30 P.M., at place Nand Gram near Maredi and decided issue No. 1 in ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 6 favour of the claimants. The Tribunal determined issue No. 3 in favour of the ownerinsured. Issues No. 2 and 4 to 7 .
came to be decided against the insurer and compensation to the tune of ₹ 29,98,432/ with interest @ 7.5% per annum from the date of filing of the claim petition till its realization of was granted in favour of the claimants.
Issues No. 1 and 4:
12.
rt The claimants in para 24 of the claim petition have specifically stated that the offending vehicle was being driven by deceasedDesh Raj himself at the time of the accident. The ownerinsured of the offending vehicle has admitted the said factum. In the FIR, Ext. PW4/A also, it has specifically been recorded that the accident had occurred due to the rash and negligent driving of the offending vehicle by deceasedDesh Raj. HC Pawan Kumar, while appearing in the witness box, has testified the contents of the FIR to be correct. Thus, it can be safely held that deceasedDesh Raj had caused the accident because of his own rash and negligent driving. The findings of the ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 7 Tribunal that deceasedDesh Raj was not responsible for the accident, while deciding issue No. 1, are not legally .
sustainable and are accordingly set aside.
13. Had the claimants pleaded and proved that the accident was outcome of the rash and negligent driving, the of claim petition under Section 166 of the MV Act would have been maintainable, as the rash and negligent driving is sine qua non rt for maintaining a claim petition seeking compensation in terms of the provisions of Section 166 of the Act.
14. My this view finds support from the judgment rendered by the Apex Court in the case titled as Minu B. Mehta and another versus Balkrishna Ramchandra Nayan and another, reported in AIR 1977 Supreme Court 1248, wherein it has been held that in a motor accident claim case, the proof of negligence is necessary for saddling the owner or the insurance company with liability.
It is apt to reproduce para 36 of the judgment herein:
::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 8"36. In a recent judgment of Madras High Court a Division Bench in A. A. O. Nos. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. .
Govindaraj, delivered on 13th December, 1976 has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250 to Rs. 300 a month .It has also suggested that instead of a lump sum payment of which does not often reach the claimants a regular monthly payment to the dependants by the nationalsied rt insurance company or bank would be desirable. Unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today. We conclude by stating that the view of the learned judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case."
(Emphasis added)
15. The correctness of the judgment in Minu B. Mehta's case (supra) came up for consideration before the Apex Court in the case titled as Gujarat State Road Transport Corporation, Ahmedabad versus Ramanbhai Prabhatbhai, reported in (1987) 3 Supreme ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 9 Court Cases 234, wherein it was held that the observations made by the Apex Court in Minu B. Mehta's case (supra) .
were in the nature of obiter dicta.
16. Both these judgments, i.e. Minu B. Mehta's and Gujarat State Road Transport Corporation's of cases (supra), came up for consideration and were re examined by the Apex Court in the case titled as Oriental rt Insurance Co. Ltd. versus Meena Variyal and others, reported in (2007) 5 Supreme Court Cases 428. It would be profitable to reproduce paras 24 to 27 of the judgment herein:
"24. It was argued by learned counsel for the appellant that since on the finding that the deceased was himself driving the vehicle at the time of the accident, the accident arose due to the negligence of the deceased himself and hence the insurer is not liable for the compensation. Even if the case of the claimant that the car was driven by Mahmood Hasan was true, then also, the claimant had to establish the negligence of the driver before the insured could be asked to indemnify the insured. The decision in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (1977) 2 SCC 441 : (1977) ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 10 SCR 886, of a three Judge Bench of this Court was relied on in support.
25. In that decision, this Court .
considered the question whether in a claim for compensation under the Motor Vehicles Act, 1939, proof of negligence was essential to support a claim for compensation. On the facts in that case, their Lordships found that the appeal was liable to be dismissed subject to of certain directions issued therein. But their Lordships, in the light of the fact that the High Court had discussed the law on the question and it was of some rt importance, felt that it was necessary to state the position in law. Noticing that the liability of the owner of the car to compensate the victim in a car accident due to negligent driving of his servant is based on the law of tort, the court discussed the scheme of the Act of 1939 and the law on the question. Regarding the view of the High Court that it was not necessary to prove negligence, the court held: (Minu B. Mehta case, SCC pp. 45556, para 33) "33. The reasoning of the two learned judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act. The High Court's zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation."::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 11
Their Lordships also noticed that proof of negligence remained the lynch pin to recover compensation. Their Lordships concluded by saying: (Minu B. Mehta .
case, SCC pp. 45657, para 37) "We conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the of insurance company could be held to be liable for the payment of compensation in a motor accident claim case."
rt
26. Learned counsel for the respondent contended that there was no obligation on the claimant to prove negligence on the part of the driver. Learned counsel relied on Gujarat SRTC v. Ramanbhai Prabhatbhai and another, 1987 (3) SCC 234 in support. In that decision, this Court clarified that the observations in Minu B. Mehta's case (supra) are in the nature of obiter dicta. But, this Court only proceeded to notice that departures had been made from the law of strict liability and the Fatal Accidents Act, 1855 by introduction of Chapter VIIA of the 1939 Act and the introduction of Section 92A providing for compensation and the expansion of the provision as to who could make a claim, noticing that the application under Section 110A of the Act had to be made on behalf of or for the benefit of all the legal representatives of the deceased. This Court has not stated that on a claim based on negligence there is no obligation to establish negligence. This Court was dealing with nofault liability ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 12 and the departure made from the Fatal Accidents Act, 1855 and the theory of strict liability in the scheme of the Act of 1939 as amended. This Court did not .
have the occasion to construe a provision like Section 163A of the Act of 1988 providing for compensation without proof of negligence in contradistinction to Section 166 of the Act. We may notice that Minu B. Mehta's case was decided by three learned Judges and the Gujarat of State Road Transport Corporation case was decided only by two learned Judges. An obiter dictum of this Court may be binding only on the High Courts in the rt absence of a direct pronouncement on that question elsewhere by this Court.
But as far as this Court is concerned, though not binding, it does have clear persuasive authority. On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 13 therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be .
ignored.
27. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by of introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time rt 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 subsection (1) of Section 163A 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 163A 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 163A of the Act, the compensation will be awarded ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 14 in 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."
(Emphasis added)
17. The Apex Court, in the case titled as Oriental Insurance Company Limited versus Premlata Shukla of & others, reported in 2007 AIR SCW 3591, held that proof of rashness and negligence on the part of the driver of the rt vehicle is sine qua non for maintaining an application under Section 166 of the MV Act. It is apt to reproduce para 10 of the judgment herein:
"10. The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act."
(Emphasis added)
18. The Apex Court in the case titled as Surinder Kumar Arora & another versus Dr. Manoj Bisla & others, reported in 2012 AIR SCW 2241, while approving ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 15 the principle laid down by the Apex Court in Meena Variyal's case (supra), held that once the victim of an .
accident or his legal dependants approached the Tribunal for grant of compensation in terms of the mandate of Section 166 of the MV Act, they have necessarily to establish the of rash and negligent driving. It is worthwhile to reproduce paras 7 to 12 of the judgment herein:
rt "7. Having heard the learned counsel for the parties to the lis, the question that would arise for our consideration and decision is, whether the parents of the deceased are entitled to the payment of compensation under the provisions of the Act by the respondent Insurance Company. In order to answer the issue that we have framed for ourselves, the facts in brief requires to be noticed:
8. The claimants are the parents of the deceased person. The deceased was a doctor by profession. The deceased was travelling in the motor vehicle driven by respondent no.1, who happens to be a close associate/friend. It has come in the evidence of the claimants as well as respondent no.1 that the vehicle in question was not driven in a rash and negligent manner by respondent no.1.
9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 16 of the deceased to have established that respondent No.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help .
respondent No.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163A of the Act, of then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & Ors. (AIR 2001 SC 485 : 2001 AIR SCW 85) (supra) would have come to the assistance of the claimants.
rt
10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd. (AIR 2007 SC 1609 : 2007 AIR SCW 2362) (supra). In the said decision the Court stated:
".......Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A 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 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 17 the owner of the vehicle or the driver of the vehicle."
11. We are in agreement with the .
principles stated by this Court in the aforesaid decision.
12. In view of the above, in our opinion, neither the Tribunal nor the High Court has committed any error whatsoever which would call for our interference in the appeal filed by the parents of the of deceased. Accordingly, we reject the appeal. However, we direct that the amount paid by the respondent Insurance rt Company by way of interim compensation under Section 140 of the Act, shall not be recovered from the appellants by the respondent Insurance Company. No order as to costs. Ordered accordingly."
(Emphasis added)
19. This Court in the case titled as United India Insurance Company Limited versus Sh. Mohan Lal and others, being FAO No. 281 of 2012, decided on 18th November, 2016, has laid down the same principle.
20. In the case titled as Ningamma and another versus United India Insurance Company Limited, reported in (2009) 13 Supreme Court Cases 710, the Apex Court has held that when a claim is made by the legal representatives of the deceased, it has to be proved that the ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 18 deceased was not himself responsible for the accident by his rash and negligent driving. It is apt to reproduce pars 21, 24 .
and relevant portion of para 25 of aforesaid judgment herein:
"21. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question.
of He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the rt motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.
22. ..............
23. .............
24. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in Subsection (1) of Section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 19 from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal .
representatives of the deceased, as the case may be.
25. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry of into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, rt by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving.............."
(Emphasis added)
21. Applying the test to the instant case, deceased Desh Raj was himself driving the offending vehicle at the time of the accident, as is evident from the perusal of the FIR, Ex. PW4/A and also admitted by the parties. The contents of the FIR have not been disputed by the claimants, rather, they themselves have proved the contents of the FIR, which is exhibited as Ext. PW4/A. ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 20
22. The legal representatives of deceasedDesh Raj have not taken plea of rash and negligent driving for the .
reasons best known to them, which, as discussed hereinabove, is sine qua non for maintaining claim petition under Section 166 of the MV Act.
of
23. Having said so, the claim petition under Section 166 of the MV Act was not maintainable.
24. rt Had the claimants filed the claim petition under Section 163A of the MV Act, then rashness and negligence was not required to be proved. The claimants were only required to prove that the death was outcome of the use of the motor vehicle. The claimants have not filed the claim petition under Section 163A of the MV Act.
25. The Tribunal or the Appellate Court can treat the claim petition under Section 163A of the MV Act, is not maintainable in the instant case in view of the fact that the income of the deceased has been proved to be ₹ 23,791/ per month and for maintaining the claim petition under Section 163A of the MV Act, the income of the victim of a vehicular ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 21 accident should be less than ₹ 40,000/ per annum, as has been held by a Division Bench of this Court, of which .
(Justice Mansoor Ahmad Mir, Chief Justice) was a member, in a case titled as Oriental Insurance Company Ltd.
versus Sihnu Ram and others, being FAO No. 474 of of 2010, decided on 28th September, 2016, while replying upon the various judgments rendered by the Apex Court.
rt
26. In view of the discussions made hereinabove, the claim petition was not maintainable. Viewed thus, the findings returned by the Tribunal on issues No. 1 and 4 are set aside.
Issues No. 2, 3 and 5 to 7:
27. In view of the findings returned hereinabove, it is useless to discuss and determine these issues.
28. Both the points, framed hereinabove, are determined accordingly.
29. Having glance of the above discussions, the appeal is allowed, the impugned award is set aside and the claim petition is dismissed.
::: Downloaded on - 15/04/2017 21:50:32 :::HCHP 2230. Registry to release the deposited amount, if any, in favour of the appellantinsurer through payee's account .
cheque. It is made clear that in case the claimants have received any amount of compensation under "No Fault Liability", the same shall not be recovered by the appellant of insurer.
31. Send down the record after placing copy of the rt judgment on the Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice December 30, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 21:50:32 :::HCHP