Delhi District Court
Saroj Khurana & Ors. vs . Mahinder Kr. Khurana & Ors. on 15 October, 2018
Senior Citizen Case
IN THE COURT OF SH. M. K. NAGPAL : PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MACT No.123/2015
Saroj Khurana & Ors. Vs. Mahinder Kr. Khurana & Ors.
Date of Decision : 15th October, 2018
1. Smt. Saroj Khurana (Wife)
W/o. Late Sh. Krishan Lal Khurana
@ Krishan Khurana
2. Sh. Amit Khurana (Son)
S/o. Late Sh. Krishan Lal Khurana
@ Krishan Khurana
3. Sh. Hemant Khurana (Son)
S/o. Late Sh. Krishan Lal Khurana
@ Krishan Khurana
4. Ms. Priyanaka Khurana (Daughter)
S/o. Late Sh. Krishan Lal Khurana
@ Krishan Khurana
All R/o. 27/30, Old Rajinder Nagar,
New Delhi-110060.
...Petitioners/Claimants
Versus
1. Sh. Mahinder Kumar Khurana (Owner)
S/o. Sh. Sita Ram Khurana,
R/o. H.No. 27/30, Ground Floor, Old Rajinder Nagar,
Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15
Page no.1 of 20
New Delhi-110060.
2. M/s. The New India Assurance Co. Ltd. (Insurer)
R-7A, Main Green Park,
New Delhi-110016.
..... Respondents
Date of filing of claim petition : 24.11.2015
Date of framing of issues : 29.04.2016
Date of concluding arguments : 08.10.2018
Date of decision : 15.10.2018
AWARD/JUDGMENT
1. The petitioners have filed this claim petition under Section 163-A of the Motor Vehicles Act, 1988 (hereafter referred to as the M.V. Act) seeking compensation in respect of death of one Sh. Krishan Lal Khurana @ Krishan Khurana, which was caused in an accident that took place on 29.05.2015 at about 8.22 am at place opposite Anusandhan Bhawan, Rafi Marg, New Delhi, regarding which one FIR No.119/15, under Sections 279/337 IPC was registered at PS Parliament Street. After conclusion of the investigation, an abated challan/final report against the deceased himself was admittedly filed in the said case. The offending vehicle involved in the accident is one car bearing registration no. DL-2CAE-4758, which at the relevant time of accident was owned by R-1 and insured with R-2.
2. Facts of the case, briefly stated, are that the deceased, alongwith one Sh. R.C. Srivastav and Sh. Ronit Saxena, was traveling in the said car on the date of accident and he himself was driving the Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.2 of 20 car when a dog suddenly come in front of their car and in an attempt to save the dog, the deceased lost balance and the car struck against a tree resulting into injuries on the persons of all the three occupants of vehicle. The nature of injuries suffered by the deceased proved fatal as he scummed to his injuries on the next day in Sir Ganga Ram Hospital, while the other two occupants suffered only simple injuries.
3. On inquiry from the court staff, it has been revealed that one cancellation DAR in this matter was also filed by the local police, which stands already accepted by this tribunal.
4. R-1 in his WS has not disputed the factum of accident or death of the deceased in the above accident, but it is his case that he has been falsely implicated. He has also claimed that his car was duly insured with R-2 at the time of accident.
5. R-2/Insurance Co. in its reply has also specifically admitted the fact that the car was insured with them on the date of accident, though it is their submission that their liability to pay compensation, if any, in this case is only as per the terms and conditions of insurance policy. Since the deceased himself was driving the car and is stated to have died due to his own negligence and further since he was not a third party, the issue of maintainability of this petition was also raised by them.
6. From pleadings of the parties, the following issues were framed by this tribunal on 29.04.2016:-
1. Whether the claim of the petitioners is maintainable or not?
2. Whether the accident had taken place involving the Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.3 of 20 vehicle no. DL-2CAE-4758 owned by respondent no.1 and insured with respondent no.2?
3. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
4. Relief.
7. I have heard the arguments advanced by Sh.Manoj Goel, Ld. Counsel for the petitioners and Ms. Mamta Mayer, Ld. Counsel for R-2 and have also carefully perused the entire material available on record, including the written arguments filed by Ld. Counsel for the petitioners. However, none has appeared on behalf of R-1 to address any arguments. My findings on the above issues are as under and issue no.2 is being taken up for disposal first:-
ISSUE NO. 28. It is well settled that the procedure followed for proceedings conducted by an accident Tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is even lesser than that in a civil case. In the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident case, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the said judgment is reproduced as under:-
Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.4 of 20 "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
9. These observations were also quoted with approval in the subsequent judgment of the Hon'ble Supreme Court in case Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC)
303.
10. Regarding involvement of the above offending vehicle in the above said accident, it is found that the petitioner in her affidavit Ex.PW1/A tendered on record by way of her examination in chief has made specific depositions in this regard. Though, she was not an eye- witness of the accident, but during her cross examination this fact has not been challenged on behalf of the respondents. Further, as already stated above, the respondents in their written statements have also not disputed the factum of involvement of the said vehicle in the above accident and also the death of deceased due to the injuries suffered in the said accident. Moreover, the petitioners have also duly relied upon contents of the documents of the above criminal case filed alongwith the DAR, which consist of, inter-alia, copies of the FIR, final report, Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.5 of 20 site plan, seizure memo of offending vehicle, its mechanical inspection report and postmortem report of the deceased etc. and these documents also corroborate the depositions made by PW1 regarding death of the deceased having been caused in the above accident involving use of the above offending vehicle.
11. Hence, in view of the above, it is held that the oral evidence led on record on this issue stands duly substantiated by the documentary evidence and it stands proved that Krishan Lal Khurana @ Krishan Khurana died in the above accident, involving use of the above car bearing registration no. DL-2CAE-4758, which was owned by R-1 and insured with R-2. This issue is accordingly decided in favour of the petitioners and against the respondents.
12. ISSUE No. 1Ld. Counsel for R-2/Insurance Co. has objected to the maintainability of this claim petition on two counts. Firstly, her submission is that since admittedly the accident took place due to rash and negligent driving of the deceased himself and FIR of the criminal case was also registered against him only and even the final report of the said criminal case was prepared against him only, though as an abated one, this claim of the petitioners even under Section 163-A of the M.V. Act is not maintainable. It is her submission that the element of rash and negligent driving on the part of driver of some other vehicle is first required to be proved even in a claim petition filed under Section 163-A of the M.V. Act and this Section cannot be invoked where the deceased died due to his own negligence. Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.6 of 20
13. Section 163A of the MV Act provides as under:-
"163A. Special provisions as to payment of compensation on structured formula basis.--
Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.--For the purposes of this sub-section, "permanent disability"
shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
(Emphasis supplied)
14. Earlier, there had been a controversy as to whether the element of rash and negligent driving on the part of driver of the vehicle involved in an accident in such a claim petition is required to be proved or not before the claim for compensation raised by dependents of a deceased can be allowed under the above Section. In the case of Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan and Another, 1977 A. C. J. 118, the Hon'ble Supreme Court was of the view that rash and negligent driving on the part of driver of such a vehicle was first required to be proved before the owner of the vehicle could be asked to pay compensation to the victim on the basis of vicarious liability. The relevant observations made by their Lordships in the said case are as under:-
"22. The liability of the owner of the cars to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.7 of 20 the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of employment and that he was negligent."
(Emphasis supplied)
15. However, in the case of Deepak Girishbhai Soni Vs. United Insurance Co. Ltd., 2004 LawSuit (SC) 329, the Hon'ble Supreme Court has held as under:-
"66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non- obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. "
(Emphasis supplied)
16. Subsequently in the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors., 2007 ACJ 1284 also, the Hon'ble Supreme Court took the view that in case of a claim made under Section 163A of the MV Act there is no such requirement for proving of rash and negligent driving on the part of driver of the vehicle involved in the accident. The relevant propositions of law laid down by the Hon'ble Supreme Court in this case are as under:-
Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.8 of 20 "23...................On a careful understanding of the decision in Gujarat State Road Transport Corporation (supra) we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163A of the Act of 1988, we are persuaded to think that the so called obiter observations in Minu B. Mehta's case (supra) govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163A of the Act.
Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case deserve to be ignored.
24. We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub- section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle."
(Emphasis supplied) Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.9 of 20
17. However, in the case of National Insurance Co. Ltd. Vs. Sinitha & Others, 2012 (2) SCC 356, a Two-Judges Bench of the Hon'ble Supreme Court had examined the scope of Section 163-A of the M.V. Act and while referring to another judgment of co-equal Bench in the case of Oriental Insurance Co. Ltd. Vs. Hasnrajbhai Vs. Kodala, 2001 (5) SCC 175, took the view that Section 163-A of the Act has been founded under the fault liability principle and hence, the petitioners are required to prove in such cases that the accident took place due to fault of driver of the offending vehicle.
18. In another case titled United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr., 2013 Law Suit(SC) 1006, the Two-Judges Bench of the Hon'ble Supreme Court was not in agreement with the view expressed in Sinitha's case and while referring the matter to the Larger Bench, their Lordships have made the following observations:-
"8. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation."
(Emphasis supplied) Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.10 of 20
19. However, the above controversy now stands settled by the Three-Judges Bench of the Hon'ble Supreme Court on reference vide judgment dated 24.11.2017 pronounced by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr., 2017 Law Suit(SC) 1225, wherein it has been held by their Lordships that the above element is not required to be proved in a claim petition under Section 163A of the said Act. The relevant propositions of law laid down by the Hon'ble Supreme Court in the above said case are being reproduced as under:-
"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A (2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."
(Emphasis supplied) Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.11 of 20
20. Hence, it is clear from the above legal discussion that the rash and negligent driving on the part of driver of some other offending vehicle is not required to be proved in a claim petition filed by LRs of a deceased under Section 163-A of the M.V. Act and this Section can be invoked even when the deceased died due to his own negligence and no other vehicle is involved in the accident. Therefore, this objection is held to be not tenable.
21. The next challenge by Ld. Counsel for R-2/Insurance Co. to maintainability of this petition is on the ground that the claim of the petitioners is not maintainable as the deceased cannot be termed as a 'third party' qua the Insurance Co. as he was admittedly driving the above said car with permission of the owner thereof, i.e. R-1, and hence, he can be termed only as a borrower of the car and no claim regarding his death can be held maintainable against them as liability of the Insurance Co. to pay compensation even under Section 163-A of the Act is only towards a 'third party' and not against the owner or a borrower of the said vehicle from the owner.
22. On the other hand, it is the contention of Ld. Counsel for the petitioners that since the petitioners have approached this tribunal for grant of compensation under Section 163-A of the said Act, they are only required to prove involvement of the vehicle in the accident and the claim under Section 163-A is maintainable even if the same has been raised qua death or injuries suffered by owner of the vehicle or the insured himself. He has also relied upon the judgments of the Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.12 of 20 Hon'ble Delhi High Court in cases Oriental Insurance Co. Ltd. Vs. Sudesh & Ors., 2012 LawSuit (Del) 1384; National Insurance Co. Ltd. Vs. Bimla Devi & Ors., 2013 LawSuit (Del) 3198; Radha Nigam Vs. Manas Bansal & Ors., 2014 LawSuit (Del) 1956; and ICICI Lombard General Insurance Co. Ltd. Vs. Nafe Singh & Ors., 2018 LawSuit (Del) 4036 in support of his above submissions.
23. In the present case, it has been specifically admitted by R- 1, i.e. registered owner of the above vehicle involved in the accident, in its WS itself that the deceased Krishan Lal Khurana @ Krishan Khurana was working as a commission agent of sale/purchase of used/old cars and on the day of accident, the deceased took his car for showing the same to some customer for the purpose of sale of the said car. Though, nowhere in his WS R-1 is found to have disclosed his relation with the deceased and further even though in her affidavit Ex.PW1/A, wife of the deceased/PW1 Smt. Saroj Khurana has also not disclosed the said relation, but during her cross-examination conducted by Ld. Counsel for R-2 she has specifically admitted that R- 1 is her brother-in-law (devar) and hence, it can be seen that the deceased and R-1 were brothers. Therefore, it is clear from the evidence led on record that not only the deceased was related to R-1/ owner of the said vehicle, but he was also in permissive use and possession of the said vehicle at the time of accident.
24. The issue whether a claim for compensation raised in respect of death or injuries suffered by owner or insured of a vehicle himself, or by some other person in possession through him, against Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.13 of 20 the insurer of the said vehicle is maintainable or not has been a contentious issue and it always remained a subject matter for interpretation in different cases. In the case of Ningamma and Anr. vs. United India Insurance Co. Ltd., reported in 2009 ACJ 2020 (decided on 13.05.2009), the issue directly raised before the Hon'ble Supreme Court was of maintainability of the claim raised in respect of death of borrower of a vehicle from the owner thereof. In the said case, the deceased Ramappa had borrowed a motorcycle from its owner and had died in an accident involving use of the said motorcycle. Though the concerned Claims Tribunal had granted a compensation of Rs.2,59,800/-, alongwith interest, to the legal heirs of deceased in a petition filed under Section 163-A of the M.V. Act, but the Hon'ble High Court of Karnataka had set-aside the above judgment/award of the Claims Tribunal, while holding, inter-alia, that the petition was not maintainable as there was no tort-feasor involved in the matter. In a challenge made to the above judgment of the Hon'ble High Court by the claimants, the Hon'ble Supreme Court, after discussing the entire law on the subject in light of the provisions contained in the above Section, including the judgments in the cases of Deepak Girishbhai Soni Vs. United Insurance Co. Ltd. (Supra), Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors. (Supra), Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (Supra) and Oriental Insurance Co. Ltd. Vs. Rajni Devi & Ors. (2008) 5 SCC 736 etc., had upheld the above order of the Hon'ble High Court and had held the above claim to be not maintainable as Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.14 of 20 their Lordships were of the view that owner of the vehicle or insured or any person claiming through him cannot be said to be a 'third party' qua the Insurance Co. concerned. The relevant observations made by the Hon'ble Supreme Court in this case are being reproduced herein below:-
"14. Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a code by itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
15. A number of decisions have been rendered by this Court in respect of the Section 163A of the MVA. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd.,(2004) 5 SCC 385, at page 402, one of us (Hon'ble Justice S. B. Sinha) has observed as follows:
"42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs 40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.15 of 20 accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle."
This Court further observed in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428, at page 428:
"18. In New India Assurance Co. Ltd. v. Asha Rani this Court had occasion to consider the scope of the expression "any person" occurring in Section 147 of the Act. This Court held: (SCC p. 235, para 26) "... that the meaning of the words `any person' must also be attributed having regard to the context in which they have been used i.e. `a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor." In other words, this Court clearly held that the apparently wide words "any person" are qualified by the setting in which they occur and that "any person" is to be understood as a third party.
27. We think that the law laid down in Minu B. Mehta v. Balkrishna Ramchandra Nayan was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163-A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.MACP No. 123/15
Page no.16 of 20 the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.
28. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., two of the learned Judges who constituted the Bench in Minu B. Mehta held that when a car is driven by the owner's employee on owner's business, the normal rule was that it was for the claimant for compensation to prove negligence. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. The Court noticed that the modern trend was to make the master liable for acts of his servant which may not fall within the expression "in the course of his employment" as formerly understood. With respect, we think that the extensions to the principle of liability have been rightly indicated in this decision".
16. The aforesaid decisions make it quite clear that the Parliament by introducing Section 163-A in the MVA provided for payment of Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.17 of 20 compensation 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 Second 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 MVA. In order to prove a claim of this nature the claimant would not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned.
17. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the `third party', and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.
18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.18 of 20 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.
19. We have already extracted Section 163-A of the MVA hereinbefore. 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 pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. 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 MVA.
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 of the MVA 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.............."
(Emphasis supplied) In view of above judgment of the Hon'ble Supreme Court, the judgments being relied upon by Ld. Counsel for the petitioners are held to be of no help to the case of petitioners.
25. Thus, in view of the above, the issue no.1 is accordingly decided in favour of the respondents and against the petitioners and it is held that present claim of the petitioners is not maintainable as the deceased of the present case cannot be termed as a 'third party'.
26. ISSUES NO.3 Since the issue no.1 has been decided against the Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.19 of 20 petitioners and in favour of the respondents, the petitioner are held not entitled to any compensation from the respondents in the present claim petition and this issue is also accordingly decided against them and in favour of the respondents.
ISSUE NO.4/RELIEF
27. In view of the above, this claim petition filed by the petitioners is being dismissed. A copy of this judgment be given dasti to the parties. File be consigned to record room after necessary Digitally signed formalities. MANOJ by MANOJ KUMAR KUMAR NAGPAL NAGPAL Date: 2018.10.18 13:59:59 +0400 Announced in the open court (M.K.Nagpal) on 15.10.2018 PO/MACT, New Delhi Smt. Saroj Khurana Vs. Sh.Mahinder Kumar Khurana. & Ors.
MACP No. 123/15Page no.20 of 20