Gujarat High Court
Sangita Arunkumar Sinh Heir And Legal ... vs Jagdish Prasad Mishra on 20 September, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/697/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 697 of 2018
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SANGITA ARUNKUMAR SINH HEIR AND LEGAL REPRESENTATIVE OF
DECD. ARUNKUMAR LALMANSING SINH
Versus
JAGDISH PRASAD MISHRA
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Appearance:
MR VISHAL C MEHTA(6152) for the PETITIONER(s) No. 1
MR. KISHAN H DAIYA(6929) for the PETITIONER(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the PETITIONER(s) No. 1
MR YOGI K GADHIA(5913) for the RESPONDENT(s) No. 2
NOTICE UNSERVED(8) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 20/09/2018
ORAL ORDER
Feeling aggrieved by and dissatisfied with the judgment and award dated 24.11.2017 passed by learned Motor Accident Claims Tribunal (Aux.), Gandhidham at Kachchh, in Motor Accident Claim Petition No.342/2007, the appellant - original claimant preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short);
2. Heard Mr. Vishal C. Mehta, learned counsel for the appellant - original Claimant and Mr. Yogi K. Gadhia, learned counsel for respondent No.2 - Insurance Company.
3. As this appeal is directed only against the Insurance Company and at the request of learned counsel for the parties, present appeal is taken up for its final disposal forthwith and therefore, presence of respondent No.1 being owner is not necessary.
4. In para 11 of the impugned judgment and award, the Tribunal has considered the question as to who was Page 1 of 5 C/FA/697/2018 ORDER negligent or at fault for the accident occurred, which has given rise to the claim petition and on the sole ground, claim petition has been dismissed. The Tribunal had evidence led before it by the appellant - claimant and admittedly, the claim petition filed under Section 163A of the Act.
5. The following noteworthy facts emerge from the record of the appeal :
That on 21.05.2006, at around 11:30 hours, deceased Arunkumar Sinh, who was the husband of the appellant was going by driving a truck bearing registration No.WB41B 4786 from Surat to Calcutta and when he reached near Karanja village at N.H.6, at that time, one Truck bearing registration No.GJ12Y4363 was parked on the road without signals and without following traffic rules and the said truck was dashed by the deceased from the back side and caused the accident. Therefore, driver of the truck was sustained serious injuries and died on the spot. Therefore, the appellant filed claim petition under Section 163A of the Act and claimed compensation of Rs.4,84,700/, wherein the Tribunal has dismissed the claim petition filed by the appellant claimant. Hence, present appeal is filed.
6. In the aforesaid background, learned counsel for the appellant has contended that the Tribunal has wrongly considered the aspect of negligence as the claim petition was filed under Section 163A of the Act. Relying upon the judgments of the Hon'ble Supreme Court in the cases of United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr., [AIR 2017 SC 5710] and Shivaji & Anr. Vs. Divisional Manager, United India Insurance Co. Ltd., [AIR 2018 SC Page 2 of 5 C/FA/697/2018 ORDER 3705], it was contended by learned counsel for the appellant that the said issue is squarely covered by the aforesaid two judgments and the Tribunal has committed an obvious error in considering the aspect of negligence in the petition filed under Section 163A of the Act. Therefore, he submitted that the appeal be allowed and the proceedings be remanded back for its fresh hearing.
7. Mr. Yogi K. Gadhia, learned counsel for respondent No.2 - Insurance Company contended that the Tribunal has correctly considered the aspect of negligence/fault and therefore, the appeal being meritless, does not deserve any consideration at all.
No other or further submissions are made by learned counsel for the parties.
8. Thus, present appeal raises a very short question of law to the effect whether in a claim petition filed under Section 163A of the Act, plea of negligence can be raised or not. The Apex Court in the case of United India Insurance Co. Ltd. (supra), has observed thus:
"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 defense 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 Page 3 of 5 C/FA/697/2018 ORDER 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 proceedings under Section 166 of the Act which would not only be selfcontradictory but also defeat the very legislative intention.
For the aforesaid reasons, we answer the question arising by holding that a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence on the part of the victim."
9. Same view is also reiterated by the Apex Court in the judgment of the case Shivaji & Anr. (supra), wherein the Apex Court has observed thus:
"5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co. Ltd. V. Sunil Kumar & Anr., wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "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." The Court observed that if an insurer was permitted to raise a defense of negligence under section 163A of the Act, it would "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". Consequently, it was held that in a proceedings under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation."
10. Considering the observations made in para 11 of the impugned judgment and award, it clearly establishes that the Tribunal has misread the provisions of Section 163A of the Act and has committed an obvious error in considering the aspect of negligence in the claim petition filed under Section 163A of the Act. The Page 4 of 5 C/FA/697/2018 ORDER judgments cited at the bar by learned counsel for the appellant squarely apply to the facts of the present case.
11. Consequently, present appeal is allowed and the impugned judgment and award dated 24.11.2017 passed by learned Motor Accident Claims Tribunal (Aux.), Gandhidham at Kachchh, in Motor Accident Claim Petition No.342/2007 is hereby quashed and set aside. Proceedings of M.A.C.P No.342/2007 is hereby restored back to the file of learned Motor Accident Claims Tribunal (Aux.), Gandhidham
- Kachchh, for its fresh hearing. The Tribunal is directed to rehear the parties and dispose of the claim petition, keeping in mind the above cited judgments of the Apex Court, as expeditiously as possible, preferably latest by 30th April, 2019.
(R.M.CHHAYA, J) SUCHIT Page 5 of 5