Jammu & Kashmir High Court
Oriental Insurance Company Ltd vs Sharda Devi on 11 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 11.08.2023
MA No. 14/2010
IA No. 15/2010
Oriental Insurance Company Ltd., .....Appellant(s)
Divisional Office-I, Town Hall,
Jammu through Shri R. K.
Dhuppar, Age 50, Sr. Divisional
Manager, Jammu.
Through: Mr. Vishnu Gupta, Advocate.
Vs
1. Sharda Devi, W/o Des Raj Shan ..... Respondent(s)
2. Neetu Shan D/o Des Raj Shan
3. Ritu Shan D/o Des Raj Shan
4. Sahil Shan S/o Des Raj Shan
5. Teji Devi W/o Munshi Ram
(All residents of village Semna,
Tehsil & District Kishtwar).
6. M/s Mansrover Trust, 11-12,
Block-A DDA Shoping complex,
Ring Road, Naraina.
7. Umesh Gupta, S/o H. S. Gupta,
Bank Vihar, Saraswati Vihar, New
Dehli-34
8. Manoj Goyal, (Astt. Manager
Electric), S/o V. K. Goyal, R/o
NHPC Colony, Kisthwar.
Through: None.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
2 MA No. 14/2010
01. This is an appeal filed by the appellant-Oriental Insurance Co. Ltd. ("OIC" in short) filed against an award dated 30.04.2009 passed by the Motor Accident Claims Tribunal, Kishtwar ("MACT, Kishtwar" in short) on File no. 13/Claim preferred by the respondents no. 1 to 5 herein as being the widow, children and mother of the deceased-Des Raj Shan who died in a road traffic accident on 22.11.2000. In terms of this award an amount of ₹4,00,000/- (four lac) along with interest @ 6% from the date of filing of the claim petition has been awarded and ordered payable by the appellant-OIC. Claim petition was filed on 18.12.2000.
02. The deceased-Des Raj Shan was driving a Maruti Car no.
DL-7C/0284 from Gandoh to Bhadarwah when upon reaching near Naseeb Nagar Thathri at 5 p.m.. Said car is reported to have met with an accident due to mechanical failure resulting in fatal injuries to the deceased-Des Raj Shan resulting in his death when he was in his age of 42 years.
03. On account of this accident resulting in loss of life of the Des Raj Shan, the respondents no. 1 to 5 came forward with a claim petition under section 166 of the Motor Vehicles Act, 1988 ("the Act of 1988" in short) for seeking 3 MA No. 14/2010 compensation for the death of Des Raj Shan. This claim petition came to be filed on 18.12.2000 before MACT (Additional District Judge), Kishtwar in which the appellant-OIC came to be impleaded as sole respondent.
04. In this claim petition, the respondents no. 1 to 5 came to disclose that the deceased was working in Dul Hasti Project Kishtwar as Driver with National Hydroelectric Power Corporation (NHPC) on a monthly salary of ₹10,000/-. The claim petition further stated that the vehicle suffering accident was being driven by the deceased-Des Raj Shan and was owned by him as well. The fact of the said vehicle being insured by the appellant-OIC was also disclosed. Thus, in a sense the compensation came to be claimed for the death of owner-cum-driver of the said vehicle meeting with the accident not caused by any other vehicle. An amount of ₹14,00,000/- (fourteen lac) was claimed as compensation from the appellant-OIC. Along with this petition, a claim under section 140 of the Act of 1988 was also lodged.
05. In response to this claim petition, the respondent-OIC appeared and submitted its objections on 03.10.2001 wherein it came to maintain an objection that no compensation is payable in this case as the insured himself 4 MA No. 14/2010 had become a victim in the accident and was not a third- party in that sense. The cause of accident was said to be the Car falling down 400 feet from the roadside which was an act of negligence on the part of the deceased-Des Raj Shan being the driver of the said vehicle.
06. The respondents no. 1 to 5 came forward with filing of an application on 11.09.2002 for seeking conversion of the claim petition from being under section 166 to 163-A of the Motor Vehicles Act, 1988 putting up a story that the Car, in reference, had come to be owned by the deceased from one Sh. Manoj Goel, Assistant Manager Electrical NHPC Colony, Kishtwar who had purchased it from Umesh Gupta in whose name the vehicle stood transferred in terms of a transfer certificate issued by the Registering Authority, New Delhi.
07. It was pleaded in the said application for seeking conversion that filing of claim petition under section 166 of the Motor Vehicles Act, 1988 was an act of erroneous advice on the part of the counsel engaged. To this application for seeking conversion of the claim petition, the appellant-OIC came to submit its objections on 04.02.2003 objecting to its purported conversion.
5 MA No. 14/2010
08. The respondents no. 1 to 5 again came forward with an application filed on 19.10.2004 seeking another amendment in the claim petition thereby meaning to set up the case that the Car in reference was owned by some three persons in succession. To this application, the appellant- OIC came to submit its objections on 01.04.2005 seriously objecting to the manner in which the respondents no. 1 to 5 were seeking to manipulate the facts to somehow sustain a misconceived claim petition against the appellant-OIC.
09. The MACT, Kishtwar, vide its orders dated 17.09.2004 and 20.05.2005, came to allow the amendment in favour of the respondents no. 1 to 5 thereby treating the claim to be one under section 163-A of the Act of 1988.
10. The respondents came to submit its objections to the amended claim petition on 24.12.2005. In the amended claim petition, the respondents no. 1 to 5 came to implead M/s Mansarover Trust, Umesh Gutpa and Manoj Goel as respondents no. 2 to 4. In this claim petition, the respondents no. 1 to 5 came to set up the ownership of the Car involved in the accident to the respondent no. 4 - Manoj Goel. Thus, it seems that by manipulating the fact of ownership of the vehicle, the respondents no. 1 to 5 6 MA No. 14/2010 somehow intended the sail through their claim for compensation against the appellant-OIC.
11. In the claim petition, the MACT, Kishtwar came to frame Issues on 27.02.2006 which are reproduced as under:-
1. Whether the deceased Des Raj Shan has died due to the vehicular accident arising out of the use of Motor Vehicle bearing registration No. DL-7C-0284 on 22.11.2000 near Naseeb Nagar? OPP
2. Whether the petitioners are the legal heirs of the deceased as such entitled to compensation of award in terms of Section 163-A MV Act? OPP
3. In case issue Nos. 1 and 2 are proved in affirmative to what amount of compensation the petitioners are entitled to and from whom? OPP
4. Whether the owner and driver have violated the terms and conditions of the Insurance Policy if so how and what would be its effect?
OPR-1
5. Relief.
7 MA No. 14/2010
12. Upon the basis of statement of respondent no. 1 - Sharda Devi and her witnesses, namely Payare Lal Shan and Mohinder Singh Parihar, the MACT, Kishtwar came to award compensation of an amount of ₹4,00,000/- (four lac) in favour of respondents no. 1 to 5 @ 6% from the date of filing of the claim petition made payable by the appellant- OIC. The compensation was obviously awarded under section 163-A of the Act of 1988.
13. The appellant-OIC is in present appeal assailing the very legality of the award so passed by the MACT, Kishtwar.
14. In its memo of appeal, the appellant-OIC submits that the MACT, Kishtwar has committed serious error of law and facts in conduct of adjudication of the claim petition by failing to see that from one extreme end the respondents no. 1 to 5 had taken their claim petition to another extreme end thereby exposing the fact that the compensation was being sought for an accident which was caused by the deceased by his own act of negligence while driving his own vehicle.
15. This court upon examining the position of law on its aspect in the context of maintainability of a claim under section 163-A of the Act of 1988 finds itself to be guided by the 8 MA No. 14/2010 judgments of the Hon'ble Supreme Court of India in the case of "Oriental Insurance Company Ltd. Vs Rajni Devi & Anr." 2008 (5) SCC 736, "Ningamma & Anr. Vs United India Insurance Company Ltd." 2009 AIR SC 3056 and "Ramkhiladi and Anr. Vs United India Insurance Company Ltd & Anr." 2020 AIR SC 527.
16. In the case of "Ningamma & Anr. Vs United India Insurance Company Ltd." (supra), the Hon'ble Supreme Court of India by reference to section 163-A claim which was preferred by the widow and minor son of the deceased who was driving the vehicle after borrowing it from its real owner, which is the present case as came to be finally put up by the respondents no. 1 to 5, came to hold that the deceased driver was not to be reckoned as a third-party. In para 13 of its judgment, the Hon'ble Supreme Court posed a question for its consideration as to whether the legal representatives of a person who was driving a motor vehicle after borrowing it from real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163-A of Motor Vehicles Act, 1988 or under any other provision(s) of law and also whether the Insurer who issued the insurance policy would 9 MA No. 14/2010 be bound to indemnify the deceased or his legal representatives.
17. Upon posing this question and considering the history of introduction of section 163-A in the Act of 1988 and the relevant judgments obtaining on the point at that point of time, the Hon'ble Supreme Court of India came to hold that the payment of compensation under section 163-A in the Act of 1988 was on structured formula basis by mandating that the owner of a motor vehicle or the authorised insurer would be liable to pay compensation as indicated in the IInd Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim as the case may be in a claim made under sub-section 1 of section 163-A of the Act of 1988. In order to prove such a claim of this nature, the claimant was not required to plead or establish any wrongful act or neglect or default of the owner of the vehicle concerned.
18. By referring to its judgment in the case of "Oriental Insurance Company Ltd. Vs Rajni Devi" 2008 (5) SCC 736 in which it came to be held that section 163-A of the Act of 1988 cannot be said to have any application in respect of an accident wherein the owner of the motor 10 MA No. 14/2010 vehicle himself is involved because the liability under section 163-A of the Act of 1988 is on the owner of the vehicle so a person cannot be both, a claimant as also a recipient with respect to a claim and, as such, even the heirs of the deceased cannot maintain a claim for compensation in such like case scenario.
19. By applying the ratio of the aforesaid judgment in "Oriental Insurance Ltd. Vs Rajni Devi" 2008 (5) SCC 736, the Hon'ble Supreme Court of India came to pronounce its judgment in the case of "Ningamma & Anr. Vs United India Insurance Company Ltd.".
20. The facts of present case are no different than that of the aforesaid two cases cited by the Hon'ble Supreme Court of India in settling the position of law with respect to claim petition under section 163-A of the Act of 1988 by the legal representatives of the deceased who is a driver of the very vehicle involved in the accident without involvement of any other offending vehicle.
21. The MACT, Kishtwar failed to take notice of the position of law which was in picture at the time of making of the award impugned herein. In fact a perusal of the impugned award shows that the MACT, Kishtwar allowed itself to be 11 MA No. 14/2010 swayed by sympathy towards the respondents no. 1 to 5 as being the family members of the deceased- Des Raj Shan. Any accident, be it motor vehicle or otherwise, in which a person comes to suffer loss of limb or life sets in adverse consequences for the person surviving the accident or to the family of the victim of the said accident. Those consequences no doubt self-generate sympathy factor towards the victim or his family but when it comes to the matter of law being called upon to take a call in the matter of awarding of compensation then sympathy factor has to lose its presence from the scene so as to allow a judgment to be made in accordance with the law.
22. In the present case, law does not allow a judgment to be made in favour of the respondents no. 1 to 5 in allowing compensation in their favour for the accident death of their beloved Des Raj Shan involving the use of the Car by none else than the deceased himself and, therefore, the claim so preferred by the respondents no. 1 to 5 was not falling within the scope of section 163-A of the Act of 1988 or for that matter even under section 166 of the Act of 1988 and, therefore, the MACT, Kishtwar ought to have dismissed the claim petition instead of awarding compensation therein. 12 MA No. 14/2010
23. The impugned award is, thus, bad in law and is, accordingly, set-aside. However, any interim compensation received by the respondents no. 1 to 5, by reference to an order passed under section 140 of the Act of 1988, shall not be recoverable by the appellant-OIC.
24. Appeal is, thus, allowed and the impugned award dated 30.04.2009 on File no. 13/Claim of MACT, Kishtwar is hereby set-aside. Consequently, the claim petition preferred by the respondents no. 1 to 5 is dismissed.
(Rahul Bharti) Judge Jammu 11.08.2023 Bunty Whether the order is reportable: Yes Whether the order is speaking: Yes