Delhi District Court
Neeraj Kumar vs . Brij Pal on 18 January, 2012
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IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,DWARKA COURTS,
NEW DELHI
IN THE MATTER OF :
Neeraj Kumar Vs. Brij Pal
Case no 546/DAR/11
ORDER
FIR was registered on the statement of Joginder Singh s/o Brij Pal Singh r/o RZ 242A Gali no 13, Raj Nagar, Part II, Palam Colony , New Delhi stated inter alia that he resides at the aforesaid address and doing the job in courier company. On 13/6/2011 he returned back to his home from his duty on his motorcycle DL9SAE4362 as usual at about 10.30 p.m .As soon as he reached at his home his childhood friend, namely , Neeraj who resided near his house and driving the school van had asked him on telephone to see him as he wanted to go somewhere. At that time his father had gone to bed and he left the house after intimating his younger brother and Neeraj ( deceased) found standing infront of his house who sat on his pillion seat and they started roaming around the colony and had a beer . Thereafter Jatinder who was doing the labour work and was a common friend of them also sat as a third rider on the same motorcycle. They went to liquor shop at Gurgaon Toll Plaza and at that time he was driving the motorcycle. They took the meal from the hotel and consumed one quarter of bottle each. They were asked to go their homes by the police officials present there when they were standing outside the liquor shop. In the mean time Neeraj ( driver) took the key of the bike and started driving with promise to drive at a slow speed after saying that you drove the bike when we had left the house. He drove the vehicle at a normal speed to some distance but thereafter he accelerated the speed by ignoring his repeated request to proceed towards home. Rather he started driving the vehicle at a high speed in a rash and negligent manner. All of sudden he rammed over a flyover and thereafter took a U turn in between the divider. As a result thereof, the motorcycle fell down after striking against the divider. Neeraj received fatal injuries whereas he and his friend Jatinder received simple injuries . They were removed to hospital in a PCR van from the place of -:2:- accident and accident had occurred due to the rash and negligent driving of Neeraj.
Pursuant to service of notice, owner and insurer of the offending vehicle appeared. A separate written statement has been filed by the insurance company wherein pleaded that deceased was himself negligent while driving the vehicle bearing No. DL9SAE4362 and hence, insurance company had no liability. However, it has been admitted that the offending vehicle was insured in the name of owner of the offending vehicle 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.
Heard. 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 of the accident.
It appears that the deceased , as per the DAR, 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. 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 even 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.
I find force in the contention that a tort feasor, who because of his own negligence, -:3:- met with death, however, unfortunately, cannot be equated with a victim of accident.
With regard to payment of compensation to gratuitous driver by the insured, it has been held in 2008 ACJ 1280 M/s HDFC CHUBB General Insurance Company Ltd. Vs. Shanti Devi, Rajbalsingh Thakur & Anr. as follows:
"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 163 A or 'any person' under section 147 but a tortfeasor - Contract of insurance covered the ownerdriver, pillion rider and mandatory third party risk but not 'other named person' or paid driver - A tortfeasor 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 victim Held: No."
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 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 20 th 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.-:4:-
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.
Hence, no driver can claim compensation for the accident de son tort. . 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 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 cost. 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 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 163-A 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 163-A 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.......-:5:-
In view of the above discussions the proceedings of the present DAR are hereby dropped with the direction to consign the same to record room.
Copy of the award be given to both the parties ( free of costs).
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED:18/1/2012 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL01,
DWARKA COURTS, NEW DELHI.