Calcutta High Court (Appellete Side)
Smt. Parul Singha & Ors vs National Insurance Company & Anr on 19 April, 2012
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
( Civil Appellate Jurisdiction )
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Shukla Kabir (Sinha)
FMA 759 of 2008
Smt. Parul Singha & Ors.
.....Appellants
Versus
National Insurance Company & Anr.
....Respondents
Mr. Amit Ranjan Roy ...for appellants
Mr. Rajesh Singh....for respondents
Heard on: 19.4.2012
Judgment on: 19.4.2012
Ashim Kumar Banerjee,J.
The moot question involved in this appeal is, as to what would constitute a 'motor accident' fixing the liability of the Insurer to pay compensation to the victim.
The admitted facts would depict, the victim, who was the driver of the concerned vehicle, was sitting on the road to check the tyre, when the 2 vehicle was parked on the road side. An unknown vehicle dashed him and fled away. He succumbed to the injury. Would it be a motor accident within the meaning of the Motor Vehicle Act, 1988? The appellants say, yes. The Tribunal was, however, not inspired. The Tribunal dismissed the application. Hence, this appeal.
We heard this matter on the last occasion as well as today. Mr. Amit Ranjan Roy, learned Counsel appearing for the appellants has argued the matter with his eloquence. He strenuously contends that the facts so discussed above, would definitely constitute a motor accident within the meaning of the said Act of 1988. According to him, since it was a motor accident, he would be free to choose the course of action under Section 167 of the said Act, as to whether he would approach the Workmen's Compensation Court or the Motor Accident Claim Tribunal. He relies on two decisions in the case of Ved Prakash Garg -vs- Premi Devi & Ors. reported in 1998 Accidents Claims Journal page 1 and in the case of National Insurance Company Ltd. - vs- Prembai Patel reported in 2005 Volume 2 Transport and Accident Cases page 289.
Coming to the factual matrix, Mr. Roy relies on two other decisions of the Apex Court in the case of Smt. Rita Devi & Ors.-vs- New India Assurance Company Ltd. & Anr. reported in 2000 West Bengal Law Reporter (SC) page 330 and in the case of New India Assurance Company Ltd. -vs- Yadu Sambhaji More & Ors. reported in 2011 Volume 1 Transport and Accidents Cases page 717. Relying on two decisions, Mr. Roy contends that an injury caused to some one arising out of a motor vehicle, would definitely come within the mischief of Section 165 and/or Section 163A of the said Act of 1988. According to him, in the case of Rita Devi (supra), the Apex Court considered an extreme case, where an auto-rickshaw was found missing with 3 its driver, whose body was unearthed on the next date. The vehicle could not be traced at all. The Apex Court held that the victim's family must get the compensation. In the case of Yadu Sambhaji More (supra), a petrol tanker fell down and started leaking petrol. When the villagers tried to collect the petrol, the petrol caught fire and there was a big explosion that caused casualty of 46 human beings. The Apex Court held that the Insurance Company was liable for compensation as per policy of Insurance covering the risk of the petrol tank.
Opposing the appeal, Mr. Rajesh Singh, learned Counsel appearing for the Insurance Company submits that the policy of Insurance Company could only be invoked in case of motor accident. The facts would not support any such motor accident that would make the Insurance Company liable. He relies on the decision of this court in the case of Kanai Manna -vs- United India Insurance Company Ltd. & Ors. reported in 2008 Volume 4 Transport and Accidents Cases page 400 (Cal), to support his contention that the present case was liable to be dismissed in limine, as it could not have been filed under Section 163A of the said Act of 1988. Pertinent to note, the appellants claim that the victim's earning was much above a sum of Rs.40,000/- per annum.
Mr. Roy however, in reply contends that we should modulate the relief as per the evidence that was led before the Tribunal. The claimants could not prove their assertion before the Tribunal. Hence, this court should grant appropriate and just compensation that would fit under section 163A of the said Act of 1988.
Before we go into the controversy, let us first know the law on the subject. 'Motor accident' was not clearly defined in the said Act of 1988. Section 165 would provide for setting up a Tribunal dealing with motor 4 accident claim cases. It was provided that the State Government may set up such Tribunal for the purpose of adjudicating upon claims for compensation in respect of the accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Hence, at the end, we get a Tribunal to deal with claim arising out of an accident caused by a motor vehicle or by use of a motor vehicle. Section 166 deals with the applications for compensation to be decided by such Tribunal. Sections 140 and 163A are two special provisions made in the said Act. The former one would deal with an immediate relief to the victim's family, where an amount is fixed in case of death and injury causing permanent disablement, as the case may be, whereas the later one would deal with a ready and handy procedure for quick disposal of claim application in respect of under-privileged class of our society, whose income was below Rs.40,000/- per annum. The special provisions relate to those under-privileged class to have a speedy disposal without proving the rush and negligent driving of the offending vehicle that was lacking in the usual provisions under Section 166 of the said Act of 1988.
Hence, on a combined reading of the aforesaid provisions, we understand as follows:
I) 'Motor accident' would mean an accident caused by or arising while use of a motor vehicle.
II) Such accident would entail victim or his family to apply for compensation from the owner of the motor vehicle and/or its Insurer, in case the vehicle is covered by the policy of insurance to the accident provided therein.
III) To sustain an application for compensation the claimant was to prove that there was an accident causing injury or death to the victim and a 5 particular vehicle was responsible for the same and such vehicle was owned and/or insured by the respondents.
In the case of Rita Devi (supra), the victim was an auto-driver. He was found missing with auto-rickshaw, which could not be traced. He died an unnatural death. The autopsy surgeon opined his death as homicidal in nature. The Apex Court observed that since he was driving the vehicle and was found missing with the vehicle, which could not be traced, for the murder without having any definite cause other than stealing of the auto-rickshaw, the policy of insurance would cover the risk and the claimants would be entitled to compensation. The Apex Court observed so, it is binding upon us.
In the case of Prembai Patel (supra), the vehicle got explored causing injury to the human being that would definitely come within the ambit of the accident.
Coming to the factual matrix, we find that the driver was dashed by unknown truck, while he was sitting on the road. He might have been checking the tyre, but the vehicle was parked on the road side. The vehicle was not touched by the other vehicle. The vehicle was not at all involved in the accident. The accident was caused on the road, when the driver was run over by the offending truck, which could not be traced. We are constrained to hold that this would not come within the ambit of a 'motor accident' that would make the claim application maintainable against the insurer of the parked vehicle.
It is true that we are not so powerless to treat the claim application under Section 163A of the said Act of 1988 and ignore high claim made by the claimant by making assertion on the income of the victim and grant appropriate compensation within the scope of the said provision, if we 6 find that the victim's income belongs to a class having the income group of less than Rs.40,000/- per annum. However, we are of the view, the victim did not die out of a motor accident covering the subject vehicle that was insured with the present Insurance Company before us. It was certainly a motor accident, where the other vehicle was responsible, but unfortunately, the same could not be traced.
Mr. Rajesh Singh, learned Counsel appearing for the Insurance Company very rightly points out to us that the claimants were not remediless. The case is squarely covered by the provisions of the Workmen's Compensation Act.
Mr. Roy however, contends that he has option either to approach the Motor Accident Claims Tribunal or the Workmen's Compensation Court. Such option would only be applicable, when the claimant could approach both. In the instant case, in our view, he could only approach the Workmen's Compensation Court and not the other forum.
The appeal fails and is hereby dismissed.
There would be, however, no order as to costs.
We grant liberty to the appellants to approach the Workmen's Compensation Court and in case such approach is made within a period of three months from date, the Workmen's Compensation Court would dispose of the same on merits ignoring delay, if any and the claimants should get the benefit of Section 14 of the Limitation Act/Section 10 of Workmen's Compensation Act.
Lower Court Records be sent down at once, if arrived in the meantime.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
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(Ashim Kumar Banerjee,J.) I agree.
(Shukla Kabir (Sinha),J.)