National Insurance Co. Ltd. vs Girish Tiwari and Others

G.P. Mittal, J.—The Appellant National Insurance Co. Ltd. impugns a judgment dated 12.07.2011 passed by the Motor Accident Claims

Tribunal(the Claims Tribunal) in a Petition u/s 163-A of the Motor Vehicles Act, 1988 (the Act) whereby a compensation of Rs. 3,40,500/- was

awarded in favour of Respondents No. 1 and 2, the parents of deceased Shiv Narain. It is urged by the learned counsel for the Appellant that the

deceased was riding a stolen two-wheeler and dashed against a parked truck No. HR-38E-5226. His contention is two-fold; first, the deceased

himself was negligent in dashing against a parked tanker and second, the accident did not arise out of use of motor vehicle inasmuch as at the time

of the accident, the tanker was not in use and thus the Appellant being its insurer is not liable to pay any compensation.

Both the contentions are liable to be rejected.

I have gone through the FIR and the report u/s 173 Cr.P.C. recorded in respect of the accident on which heavy reliance is placed by the

learned counsel for the Appellant. It is true that it is mentioned in the FIR that the two-wheeler was stolen on the night between 26.10.2003 and

27.10.2003. Even if it is assumed that the deceased was one of the thieves, there is no presumption that he would drive it rashly or negligently. Of

course, in the written statement filed by the Appellant it was stated that the deceased was driving the stolen scooter and was in a hurry because of

being caught and in that hurry dashed the scooter into the tanker. Yet, no evidence was adduced by the Appellant in support of the plea that the

accident was caused solely on account of the deceased''s negligence. Thus, the Appellant is not entitled to resist the Claim Petition on the basis of

the judgment of the Supreme Court in National Insurance Company Ltd. Vs. Sinitha and Others, .

It is true that even in a Claim Petition u/s 163-A of the Act the victim/legal representatives of the deceased are under obligation to prove that the

accident arose out of use of a motor vehicle. Of course, they are not required to plead or prove negligence on the part of the driver/owner of such

a vehicle. Admittedly, the tanker was parked at the time of the accident. The term ''use of the vehicle'' includes halting and parking of the vehicle as

well. The Appellant, therefore, cannot resist a Claim Petition u/s 163-A of the Act.

The Appeal, therefore, fails; the same is accordingly dismissed.

Statutory amount of Rs. 25,000/-, if any, shall be refunded to the Appellant Insurance Company. Pending Applications stand disposed of.