Delhi District Court
Suresh Kumar vs . Sandeep on 16 November, 2011
-:1:-
Suresh Kumar Vs. Sandeep
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
IN THE MATTER OF :
Sh. Suresh Kumar and others Vs. Sandeep and another
M.A.C.P NO. 283/10
1 Suresh Kumar
S/o Sh. Jeet Ram
2 Sumitra Devi
W/o Sh. Suresh Kumar,
Both C/o Anoop Singh S/o Sh. Dalel Singh
R/o village Nanakheri, PO Chhawla, New Delhi71
........Petitioners
Versus
1 Sh. Sandeep S/o Sh. Vijay
R/o V. & PO Gubhana, Tehsil Bahadurgarh,
Distt. Jhajjar, Haryana.
2 The Oriental Insurance Company Limited
through its Divisional Manager having its
office at Pankaj, Plaza Plot no. 4, Sector4,
Dwarka, New Delhi75.
.......Respondents
MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:2:- Suresh Kumar Vs. Sandeep
1. Date of institution:24/9/2010
2. Date of framing of issues: 28/01/2011
3.Date of hearing arguments : 04/11/11
4. Date of decision: 16/11/11 AWARD:
(FATAL CASE) 1 The present petition for claiming compensation of Rs.
10,00,000/ was filed by the parents of the deceased U/s 163A M.V.Act.
2 Brief facts of the petition are that on 7/11/2009, at about 4.00 PM, the deceased Mohit along with his pillion riders was coming on his motorcycle bearing no. HR13D 3221 from Rohtak after depositing the fee and when they reached near the village Mandothi, then all of sudden a stray cow came on the road and the deceased immediately applied the brakes in order to save the cow then in that situation, he lost the control over the bike and skided. As a result thereof, the deceased along with the motorcycle fell down on the road and sustained multiple injuries including on his head and chest which MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:3:- Suresh Kumar Vs. Sandeep proved to be fatal.
3 The offending vehicle was owned by respondent No.1 (insured R1) and insured with respondent No.2 (insured R2). 4 Pursuant to service of notice, R1 and R2 appeared and R2 filed his separate written statement. R1 has not filed WS. 5 A separate written statement has been filed by the insurance company / R2 wherein pleaded that deceased was himself negligent while driving the vehicle bearing No. HR13D3221 (Bike) Chasis no. 14525, Engine no. 16800, however, it has been admitted that the offending vehicle was insured in the name of R1 but its liability subject to terms and conditions of the policy. It is also stated that the deceased was gratuitous passenger and the risk of death or bodily injury to gratuitous passenger is not governed under the policy in question and as per M.V. Act.
6 On the basis of the pleadings of the parties, the issues were framed on28.01.2011 by the then presiding officer. 7 Having heard the arguments on behalf of both the sides and after perusal of the evidence on record, my issuewise findings are as under: MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:4:- Suresh Kumar Vs. Sandeep ISSUE NO1 Whether Sh. Mohit sustained fatal injujries on 7/11/09 in a motor vehicle accident involving motorcycle no. HR13 D 3221 driven by him? ....OPP 8 In support of the claim, Sh. Suresh Kumar, PW1 filed his examination in chief by way of affidavit Ex.PW1/A and averred therein that his son Mohit died on 7/11/09 in an accident arising out of use of motorcycle No. HR13D3221. According to PW1, deceased son was 19 years old and his earning was about 3300/ per month from the tuition work prior to the accident. During his cross examination, he admitted that the accident had not taken place in his presence. As the petition has been filed U/s 163A of the Act, therefore, the claimant was not to prove the negligence or establish wrongful act of the driver and owner of the vehicle. The petitioner had stated that the deceased had sustained fatal injuries in the accident by the use and involvement of the motorcycle bearing No. HR13D3221 to discharge the onus.
9 Issue No. 1 is decided in favour of respondents and against the petitioners.
MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:5:- Suresh Kumar Vs. Sandeep ISSUE NO 2 Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? ..... OPP 10 The contention of the insurance company is that the deceased himself was a tort feasor and hence, he can not be termed as a victim U/s 163A of the M.V.Act.
11 Under Section 163A, the negligence of the driver is not to be seen, if claim is in respect of deceased earning less than Rs. 40,000/ per annum. Here, question arises as to whether the deceased in the present case would be covered under the term 'victim'. 12 What has been dispensed with u/s 163A M V Act is the requirement of plea and proof of the wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any person (emphasis supplied) . The words " any person" , by any stretch of imagination be not taken to mean the injured or the deceased himself, as the case may be. In other words, the term "any person"
excludes gratuitous driver or passenger in the absence of specific cover for the same. On the same analogy, the owner of the motor MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:6:- Suresh Kumar Vs. Sandeep vehicle can not be made liable to the loss suffered by any individual due to his own fault.
13. If the facts of the present case are examined in the light of relevant sections, it appears that the deceased , as per the petition, was driving the motorcycle and had met with an accident. Under a policy of insurance, the owner must be insured against any liability arises against him. If the liability arises due to negligence of another, the owner would not incur vicarious liability. Consequently, the insurance company cannot be said to indemnify such owner. In third party insurance, there have to be a contract between the two parties i.e the insurer(first party) and the insured ( second party) who enter into a contract. Both of them agree to indemnify the losses, if any , found to have been suffered by the third party on account of the use of the motor vehicle of the insured. 14 A careful reading of sections 140 & 163A M V Act would show that these sections were not intended to provide reliefs to those persons who self suffer the injuries or the death. If the claim of the petitioners is accepted , then , in few cases, the injured or for that matter the deceased , may , in order to seek compensation, suffer the injuries or the death by committing suicide after making MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:7:- Suresh Kumar Vs. Sandeep use of motor vehicle. It could not have been the intention of the legislature while incorporating section 163A M.V.Act. A person cannot be allowed to take the benefits of his own wrong. If such a person , who himself suffers permanent disability by driving a motor vehicle in a rash or negligent manner, or for that matter even cautiously is allowed to claim compensation u/s 163 A M V Act or u/s 140 M V Act, it would lead to an anomaly which the legislature had never intended. If the claim of a person who had himself sustained permanent disability in the motor vehicle accident because of his own fault or otherwise (not involving any other person) cannot justify the petition there on the same analogy. In my view, the LR's of such a person who had received fatal injuries due to his own fault, cannot justify the claim.
15. I find force in the contention that a tort feasor, who because of his own negligence, met with death, however, unfortunately, cannot be equated with a victim of accident. Present claim is not covered under "third party risk" and insurance company in these circumstances is not liable to pay any compensation.
16. In 2008 ACJ 1280 M/s HDFC CHUBB General Insurance Company Ltd. Vs. Shanti Devi, Rajbalsingh Thakur & MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:8:- Suresh Kumar Vs. Sandeep Anr, their Lordships were pleased to make the following observations.
"Motor Vehicles Act, 1988, Section 163A and 147 (1) Motor Insurance - Death of son of insured - Liability of insurance company - Motor cycle skidded resulting in death of motorcyclist mother of deceased filed claim U/s 163A against father of the deceased who is owner of motor cycle and its insurance company contending that negligence is not to be enquired into and deceased as a victim is a third party mandatorily covered under the Act. Insurance company seeks to avoid its liability on the plea that deceased was not a victim" U/s 163A or 'any person' under section 147 but a tort feasor - Contract of insurance covered the ownerdriver, pillion rider and mandatory third party risk but not 'other named person' or paid driver - A tort feasor who because of his own negligence met with death can not be equated with a victim of the accident - Whether insurance company is liable to indemnity the owner for the death of gratuitous driver of insured motorcycle as a victimHeld: No."
17 Section 163A had been incorporated in the M.V. Act by Act 54 of 1994 w.e.f. 14/11/1994. It has been further held in 2008 ACJ 1280 as follows: "Section 163 (A) was incorporated in the Act i the year 1994 section 163
(a) lays down scheme for payment of compensation on structural formula basis. It lays down the liability MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:9:- Suresh Kumar Vs. Sandeep of the owner, insurers in the case of death and disablement arising in accident out of the use of the motor vehicle to the victim or its legal heirs. Sub section (2) thereof provides that claimants need not plead or establish negligence of driver and owner of the vehicle for payment of compensation to such victim or legal heir. Section 163A is part of the chapter relating to third party risks. Hence, the word 'victim' has to be understood in the sense that it relates to compensation to be paid to the victim who are third parties or to those victims involved in hit and run motor accident. In view of the above judgment a person who because of his own negligence met with the death can not be the victim of the accident. It has been further held in the above judgment that the term victim in section 163A would be governed by interpretation of the term any person or the third party in section 147.
It has been further held in the above judgment:
"That Parliament did not intend to provide compensation to the person responsible for the accident on structured formula basis. Consequently, a person could not sue for compensation upon the tort or negligence on account of his own rash, negligent and imprudent act. It was observed that if that was so, a person could base his case upon his own fault and negligence and make an MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:10:- Suresh Kumar Vs. Sandeep insurance company to pay for the same which is not the purpose of legislation. In that case the meaning of the word 'victim' from Black's Law Dictionary and Chambers 20th Century Dictionary came to be seen. Since the common sense meaning of the term 'victim' is a sufferer or a prey, it implies a person who has suffered pecuniary damage as a result of another's activities. Consequently, it is in that sense that the term 'victim' in section 163A of the M.V.Act also must be understood. It can, therefore, not include the person who is a victim of his own action, he must be a victim in contradistinction to the victimizer or the one who falls victim to his own action.
18 It is relevant to mention here that on being dissatisfied with the judgment of Hon'ble High Court of Bombay, Shanti Devi Raj Bal Singh Thakur had preferred Special Leave to Appeal CC 12634/2007 which was also dismissed by the Apex Court on 04.01.08. 19 Hence, no driver can claim compensation for the accident de son tort.
20. Further more, the matter is no longer res integra , in view of the law laid down in Ningamma & Another Vs. United India Insurance Company 2009 ( 3) TAC 13 ( Supreme Court) . In that case the deceased had hired a motorcycle. He had dashed MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:11:- Suresh Kumar Vs. Sandeep against a bullockcart and sustained serious injuries. He was removed to hospital where he succumbed to the injuries. His widow and son filed claim petition u/s 163A M.V.Act. The Tribunal gave the award in their favour. The insurance company challanged the award. The Hon'ble Karnataka High Court accepted the appeal on the ground that the accident occurred due to the fault of the deceased and claim petition was not maintainable because of non applicability of section 163 M.V.ACt. A review petition filed by the claimants before the Hon'ble High Court was dismissed with costs. The claimants then challenged both the orders passed by the Hon'ble High Court. The Hon'ble Supreme Court in this particular judgment discussed the matter in detail . In Para 19 & 20 it was observed as Under: "..19. We have already extracted section 163 A of the M.V.A hereinbefore. A bare perusal of th 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 MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:12:- Suresh Kumar Vs. Sandeep 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 pay the same is on him. This proposition is absolutely clear on a reading of section 163A of the M.V.A . 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 M.V.Act.
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under section 163A M.V.A and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case....... 21 In view of the above discussions, this issue is decided against the petitioners and in favour of the respondents. ISSUE NO 3 Relief MACP No. 283/10 Suresh Kumar Vs. Sandeep (Pages no. 1-13) -:13:- Suresh Kumar Vs. Sandeep
21. In view of findings on issue no 2 , the petition fails and is dismissed.
22 Copy of the award be given to both the parties ( free of costs).
23. File be consigned to record room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 16/11/11 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
MACP No. 283/10 Suresh Kumar Vs. Sandeep
(Pages no. 1-13)