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Judgment
Heard Ms. R.D. Mozumdar, learned counsel for the appellant as well as Mr. P. Borthakur, learned counsel for the claimants/respondent Nos. 1 to 5.
This is an appeal against the Judgment dated 13.06.2014, passed by the Addl. District Judge - IV (FTC), Kamrup, Guwahati in MAC Case No. 383/2005, by which the learned Tribunal has awarded compensation of Rs. 15,95,858/- to the claimants, along with interest @ 6% per annum from the date of filing of the petition till final payment.
The facts of the case in brief is that one Someswar Kukurachowa, while riding a motorcycle on 26.03.2005 at about 3 p.m, met with an accident when a big cow suddenly came out on the road in front of him. The deceased Someswar Kukurachowa fell from the motorcycle and was rushed to the G.M. Hospital, Dibrugarh, where he died the next day, i.e. on 27.03.2005. The deceased expired at the age of 47 years leaving behind his wife, three sons and a daughter. The claim submitted by the respondent Nos. 1 to 5 was thereafter registered as MAC Case No. 1530/2005, which was subsequently renumbered as MAC Case No. 383/2005. After adducing evidence and hearing the parties, the learned Tribunal awarded the compensation amount of Rs. 15,95,858/-, along with interest @ 6% per annum from the date of filing of the claim petition to the claimants.
The learned counsel for the appellant submits that the deceased had borrowed the motorcycle from the owner of the motorcycle and accordingly had stepped into the shoes of the owner of the motorcycle. She thus submits that as the deceased had stepped into the shoes of the owner of the motorcycle, the claimants could not have made a claim for compensation as a 3rd party under Section 163A of the M.V. Act, 1988 and also under Section 166 of the M.V. Act, 1988, as the requirement of rash and negligent on the part of the driver/owner of the vehicle was sine qua non for making a claim under Section 166 of the M.V Act, 1988. The learned counsel for the appellant also submits that as the claim petition had been made under Section 163A of the M.V Act, 1988, the learned Tribunal erred in awarding compensation, inasmuch as, the income of the deceased was beyond the stipulated Rs. 40,000/- per annum, provided in the 2nd Schedule to the M.V Act. The income of the deceased, as claimed by the claimants, was Rs. 9,968/- per month and as such, Section 163A of the M.V Act, 1988, was not applicable for computing the compensation payable. She however submits that as the motorcycle was covered by a Package policy, for which the Insurance Company was liable to pay Rs. 1 lakh to the owner of the motorcycle involved in an accident, the claimants are entitled to receive payment of Rs. 1 lakh as per the Package policy. The learned counsel for the appellant accordingly prays for setting aside the impugned Judgment dated 13.06.2014, passed by the learned Tribunal in MAC Case No. 383/2005.
Mr. P. Borthakur, learned counsel for the claimants submits that the deceased had used the motorcycle with the permission of the owner of the motorcycle. However, the deceased was not in complete control and possession of the motorcycle. He also submits that the Insurance Company has not produced the Insurance Certificate covering the motorcycle, to prove their case that the claimants were not entitled to compensation under Section 163A of the M.V Act, 1988. He submits that though the claim petition had been made under Section 163A of the M.V Act, 1988, the learned Tribunal had framed issues, keeping in mind, a claim petition under Section 166 of the M.V Act, 1988.
I have heard the learned counsels for the parties.
It is not disputed that the deceased had used the motorcycle with the permission of the owner of the motorcycle. The Apex Court in the case of Ningamma & Another v. United India Insurance Co. Ltd, reported in 2009 13 SCC 710, has held at para 21 that a person who borrows the motorbike from its real owner, cannot be held to be an employee of the owner of the motorbike, although he was authorized to drive the said vehicle by its owner and therefore, he would step into the shoes of the owner of the motorbike. As the owner of an accident vehicle cannot make a claim under Section 163A of the M.V Act, 1988, as a claim under Section 163A can be made only against the owner of the vehicle, the claimants also could not have made a claim due to the death of the deceased, as the deceased had stepped into the shoes of the owner of the vehicle. Also, the deceased and the owner of the motorcycle cannot be said to be a 3rd party in respect of the Insurance policy, covering the said motorcycle involved in the accident.
In the case of Reshma Kumari & Others v. Madhan Mohan & Another, reported in 2013 9 SCC 65, the Apex Court has held that it is imperative that a case of rash and negligent act has to be made out against the driver or owner of the accident vehicle, before a case for payment of compensation can be made out in favour of the claimants. In the present case, the deceased was himself driving the motorcycle and had thus stepped into the shoes of the owner of the motorcycle. In view of the above, the only rash and negligent act that could have occurred could only be attributed to the deceased. As no person can reap the rewards of a fault committed by himself, the question payment of compensation to the claimants of the deceased does not arise. In any event, the learned Tribunal has awarded compensation under Section 163A of the M.V. Act, 1988 in this case.
With regard to the question of whether the claimants could have made a claim for compensation under Section 163A of the M.V Act, 1988, while claiming that the monthly salary of the deceased was Rs. 9,968/- per month, it would be profitable to refer to the decision of the Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., reported in AIR 2004 SC 2107, wherein it has held that a person having income of more than Rs. 40,000/- per annum cannot make a claim for compensation under Section 163A of the M.V Act, 1988, i.e., even though the person may be having an income of more than Rs. 40,000/- per year, he would have to restrict his claim to Rs. 40,000/- per year. As the claimants have made their claim under Section 163A of the M.V Act, 1988 on the basis of the income of the deceased @ Rs. 9,968/-per month, the claim under Section 163A is not maintainable.
In view of the reasons stated above, this Court finds that the learned Tribunal had erred in awarding compensation to the claimants under Section 163A of the M.V Act, 1988, as the liability of the Insurance Company was only with respect to payment of compensation to 3rd parties, as per Section 147 of the M.V Act, 1988. As the deceased had stepped into the shoes of the owner of the vehicle, the deceased could not be said to be a 3rd party. The impugned Judgment dated 13.06.2014, passed in MAC Case No. 383/2005 by the Addl. District Judge-IV (FTC), Kamrup being unsustainable is accordingly set aside. However, in view of the submission made by the learned counsel for the appellant that the claimants are entitled to Rs. 1 lakh as per the Package policy covering the owner of the motorcycle and as Rs. 7 lakhs has been deposited with the Registry of this Court in terms of the order dated 20.05.2015, passed in MC No. 1228/2015, the claimants/respondent Nos. 1 to 5 or their representative shall be allowed to withdraw Rs. 1 lakh from the Registry of this Court, after proper identification, in pursuance to the Package policy covering the accident motorcycle. In the event that the claimants/respondent Nos. 1 to 5 find that they are entitled to a higher amount than the Rs. 1 lakh as per the Package policy, they are given the liberty to approach the Insurance Company for payment of the higher amount. The remaining amount of Rs. 6 lakhs that has been submitted with the Registry of this Court shall be released to the Insurance Company along with the statutory deposit of Rs. 25,000/-.
Appeal is accordingly allowed. Send back the LCRs.