Delhi District Court
Mrs. Susan V. John W/O Late Sh. Verghese ... vs Mr. Joy Markose S/O Sh. Vijay Pal Singh on 27 November, 2009
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
(Suit No. 63/09)
1. Mrs. Susan V. John w/o Late Sh. Verghese John
2. Eldho V. John s/o Late Sh. Verghese John
3. Elisha V. John d/o Late Sh. Verghese John
4. Chinnamma w/o Sh. K. V. John
5. K. V. John s/o Sh. G. Verghese
(Petitioners No.2 & 3 being minors through their mother and natural
guardian the petitioner No.1)
All R/o 23-B, JG-3, Vikas Puri, New Delhi-18.
........PETITIONERS
VERSUS
1. Mr. Joy Markose s/o Sh. Vijay Pal Singh
R/o 103-E, Pocket A-1, Mayur Vihar, Phase-III, Delhi
Second Address: JG-II/23-B, Vikas Puri, New Delhi (owner)
2. The National Insurance Co. Ltd.
Flat No.101-106, N-1, B.M.C. House,
Connaught Place, New Delhi. (Insurer)
....... RESPONDENTS
Date of filing of the petition : 30/11/07
When reserved for judgment : 12/11/09
Date of judgment : 27/11/09
JUDGMENT / AWARD
Petitioners have claimed compensation of Rs. 20,00,000/-(
Rupees Twenty Lakhs ) vide claim petition u/s 163A of the Motor Vehicles 2 Act,1988 for fatal injuries received by Sh. Verghese John while driving the Car No. DL-2CAF-3079 on 26/08/07 at about 9.45 a.m. at Main Road near Evershine Apartment, Vikas Puri, New Delhi, due to use of said motor vehicle.
2. Respondent No.1 is the owner and respondent No.2 is the insurer.
3. Respondents were summoned and served.
4. No written statement was filed by respondent No.1 despite opportunity.
5. Respondent No.2, insurer filed the written statement and denied the claim of the petitioner. It has however admitted in its written statement that the vehicle in question was insured with it as on the date of accident. The insurer, respondent No.2 also averred that deceased had received such fatal injuries due to own negligence and insurer was not liable to pay compensation sum.
6. Vide order dated 17/07/08, following issues were framed by my Ld. Predecessor.
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1. Whether the deceased had sustianed fatal injuries on 26.08.2007 at about 9.45 a.m. at Main Road near Evershine Apartment, Vikas Puri, New Delhi due to use of vehicle No.DL-2CAF-3079?
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
7. Petitioner No.1 as PW-1 is the sole petitioner witness examined in petitioner's evidence.
8. Respondent No.2 examined Sh. Dilip Bhattacherjeet as R2W1 in respondent's evidence.
9. I have heard submissions of Ld. Counsels for the parties, perused the record and given my thoughts to the contentions put forth. My issue-wise findings are as under:-
ISSUE NO.1
10. The certified copy of the final report of case FIR No. 362/07 u/s 279/338/304-A IPC, P.S. Vikas Puri has been placed on record, in terms of which the investigating agency concluded the investigation, inter alia on the 4 basis of the statement of petitioner No.1 that while the deceased was driving the Maruti Van No. DL-2CAF-3079, in which the petitioner No.1 as well as her two children were seated, at the place of occurrence, suddenly a cow in the middle of the road came. To save said cow, the deceased turned the Maruti Van to its right side upon which the vehicle struck on the sewer exhaust pipe affixed there on road side. Consequence of the accident was the receipt of fatal injuries on the person of the deceased.
11. Ex. PW1/5,is the mechanical inspection report which embodies the following fresh damages on the said Maruti Van, found on inspection:-
"1. Front Body, Bumper damaged and body frame damaged.
2.Front wind screen glass broken and frame damaged.
3.Dash Board and wiring damaged and all meter damaged.
4. Steering system damaged.
5.Right side Head Light damaged and all Pedal damaged".
12. In the claim petition as well as in her testimony asPW-1, petitioner No.1 is silent as to the manner of occurrence or sequence of occurrence of the accident. It is simply specified therein that death of the deceased had occurred out of the use of the vehicle i.e. Maruti Van No. DL- 2C-AF-3079.
13. Against column No. 4 of the petition, for mentioning of the occupation of 5 the person dead, it is mentioned 'service'. The next column in respect of the name and address of the employers of the injured/dead finds mention the word, 'Private'. The deceased was stated to be in private service. In the course of arguments, it was submitted by the arguing counsel for the petitioner that the vehicle in question had been borrowed by the deceased from the vehicle owner. The fact of the death of the deceased Sh. Verghese John having taken place due to the accident, arising out of the use of the motor vehicle i.e.Maruti Van No. DL-2CAF-3079 is borne of the record in the testimony of the PW-1, corroborated by the version emanating in the final report, Ex. C-1, concluded by the investigating agency in case FIR No. 362/07, u/s 279/337/304-A IPC, P.S. Vikas Puri.
14. In the post mortem report of the deceased, the cause of death is mentioned as ' cranio-cerebral injury and injury to liver which is sufficient to cause death in ordinary course of nature'.
15. In view of the above discussion, issue No.1 is decided accordingly in favour of the petitioners and against the respondents. ISSUE NO.2
16. Ld. counsel for petitioners relied upon the cases of (1)New India Assurance Company Ltd Vs. Shyamo Chauhan & Ors, reported in I ((2005) 6 ACC 856(DB); (2) National Insurance Co. Ltd Vs. Amar Nath & Ors, reported in 2004 ACJ 1169; (3)Chandrabhan Dubey V. Manoj Kumari & Ors, reported in 2004 ACJ 1173 and (4) Deepal Girishbhai Soni & Ors Vs. United India Insurance Co. Ltd, reported in 2004 ACJ 934.
17. Ld. counsel for insurer relied upon the cases of (1) New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors, reported in 2009(1) T.A. C. 425(S.C.) and (2) HDFC Chubb General Insurance Co. Ltd Vs. Shantidevi Rajbalsingh Thakur & Anr, reported in 2008 ACJ 1280, against whom the Special Leave Petition No. 12634/07 had been dismissed, copy filed on record.
18. Ld. counsel for insurer argued that the deceased himself was negligent while driving the borrowed vehicle and had swerved the vehicle to the extreme right side and struck the sewer exhaust pipe affixed on the side of the road while the deceased was not a third party, being himself a tortfeasor.
19. I have carefully perused the relied precedents.
20. Relying upon the pronouncements in cases of (1) Oriental 7 Insurance Company Ltd Vs. Jhuma Shah, reported in 2007(1) RCR (Civil)761; (2)Dhanraj Vs. New India Assurance Co. Ltd, reported in 2004(4) RCR (Civil)786; (3) National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, reported in 2007(2) RCR(Civil) 345; (4) Prem Kumari Vs. Prahlad Dev, reported in 2008(1) RCR(Civil)835 and (5)Oriental Insurance Co. Ltd Vs. Prithvi Raj, reported in 2008(1) RCR (Civil)851, Hon'ble Supreme Court in case of Oriental Insurance Company Limited Vs. Rajni Devi, reported in 2008(4) RCR(Civil) 905 held that the insurer was liable to the extent of contractual liability only. It was also held that where the compensation is claimed for the death of the owner or other passenger of the vehicle, the claim payable by Insurer shall be governed by the terms of the contract. Similarly was held in the case of Oriental Insurance Company Limited Vs. Meena Variyal & Ors, reported in IV (2007) ACC 335 (SC) that the liability of the insurer is limited to the extent of the contract of Insurance and in the absence of payment of any additional payment of premium for the risk of owner/ employee, insurer was not liable.
21. In case of Appaji Vs. M. Krishna, reported in II (2005) ACC 591 (DB)(Karnataka), it was held that "the right to receive compensation under section 163 A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in 8 the same does not entitle a person who is neither a victim nor his/ her legal heirs to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke Section 163-A for making a claim. The concern of the Legislature and the jurists is understandably for the victim in contradistinction to the victimiser or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunken driving, speeding in what are high performance new generation of automobiles including two wheelers are accounting for a large number of accidents every day. Quite often these accidents kill or wound even the person who is driving the vehicle. The Parliament did not in our opinion intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. Neither the provisions of Section 163 A nor the background in which the same were introduced disclose any such intention. The argument that Section 163 A is a panacea for all ills concerning the accident regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected".
Also, held was , "In the case of an accident where the person 9 killed or injured is himself responsible for the accident, no liability would arise against the insured nor can any such liability be enforced under Section 163A of the Act. For a liability under Section 163 A to arise against the insurance company, it is essential that such a liability must first arise against the insured and the insurance company under Section 147 of the Motor Vehicles Act".
Also held was, " The non obstante clause in Section 163 A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under Section 163-A therefore need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not however mean that the claimant can maintain a claim on the basis of his own fault or negligence or argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same. Inasmuch as Section 163 A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The correct approach appears to us to be to find out whether in the absence of Section 163A, a claim could on the facts pleaded be maintained by the claimant. If the answer is' no' because the 10 claimant was himself the tortfeasor, the provisions of Section 163A would not come to his rescue and make such a claim maintainable. If the answer is 'yes' the beneficial provisions of Section 163 A would absolve the claimant of the obligation to prove that the accident had taken place on account of the fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the Schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possible be avoided".
22. It was held by the Hon'ble Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Hansraj Bhai Vs. Kodala, reported in I(2001) ACC 618(SC) that the non obstante clause in Section 163 A of M. V. Act, simply excludes determination of compensation on the principle of fault liability. The said provision does not permit a person to place a premium upon his own fault and make the insurance company pay for the same.
23. In the case of Ningamma & Anr. Vs United India Insurance Co. Ltd, reported in II (2009) ACC804 (SC), (supra), the Hon'ble Supreme Court after discussing the case of Deepal Girishbhai Soni (supra), held that when the deceased borrowed the motor cycle from the owner and the accident took place without involvement of any other vehicle, but has taken place due to the rash and negligent driving of himself, then the legal 11 representatives of such deceased are even not entitled u/s 163-A Motor Vehicles Act. It was held that " 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. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the Insurance Company or the owner, as the case may be as provided under section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the Motor Vehicles Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the Motor Vehicles Act".
24. No other vehicle was even alleged to be involved, in the accident against whose driver or owner could the claimants make the claim for payment of compensation on ' no fault basis' under Section 163 A of the Act. There was no possibility of even accusing another vehicle or its driver of negligence or rashness. It is own case of the claimants that the deceased, a 38 years old person had borrowed the vehicle in question from its owner. No 12 material has been placed on record by the petitioners of they having preferred any protest petition before the Area Metropolitan Magistrate against the conclusion of the investigating agency emanating in the above elicited final report, mentioning the accident having taken place in the process of saving of the cow when the deceased had struck with sewer exhaust pipe, affixed on the road side.
25. R2W1 testified that as per the policy Ex. R2W1/4, the premium received had no cover for any other person except the paid driver or insured. He also stated that the deceased was neither a paid driver nor insured.
26. A driver of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road, even animals and drive the vehicle in controllable speed. Having failed to control his vehicle and having struck the driven vehicle in uncontrollable speed with sewer exhaust pipe affixed on the side of the road, deceased himself was negligent.
27. Relying upon the law laid in the cases of (1) Rajni 13 Devi(supra);(2)Appaji(supra) and (3)Ningamma& Anr(supra) elicited above, the conjoint effect of the above discussion is that in the present set of facts, the deceased, himself being the driver of the vehicle at the time of accident, having caused the accident due to own negligence, being a tortfeasor, the claimants are not entitled to any compensation u/s 163-A of Motor Vehicle Act, 1988 from the respondents. Issue No. 2 is decided in favour of the respondents and against the petitioners, accordingly. Relief
28. In view of above discussion, it is hereby held that the petitioners are not entitled for any sum as compensation u/s 163- A of Motor Vehicles Act, 1988 from the respondents. The claim petition is dismissed.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 27/11/09 Judge, MACT(West)
Delhi.