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Judgment
M.R. Shah, J.—In the facts and circumstances of the case and with the consent of the learned Advocates appearing on behalf of the respective parties, the present appeal is taken up for final hearing today.
The present First Appeal u/s 173 of the Motor Vehicles Act, 1988 has been preferred by the Appellant-original opponent No. 2-National Insurance Company Ltd. challenging the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 30-6-2010 in M.A.C.P. No. 492 of 2009 by which in Claim Petition u/s 163A of the Motor Vehicles Act preferred by the heirs of the driver of the vehicle involved in the accident, the learned Tribunal has partly allowed the said Claim Petition directing the Appellant and other opponents to pay a total sum of Rs. 2,95,100/- towards compensation with proportionate cost and interest at the rate of 9% per annum from the date of the application till realisation.
Shri Mehul Sharad Shah, learned Advocate appearing on behalf of the Appellant-National Insurance Company has vehemently submitted that the learned Tribunal has materially erred in allowing the said Claim Petition directing the Appellant-National Insurance Company to pay compensation to the original claimants for the death of the driver of the motorcycle involved in the accident. It is submitted that it is not in dispute that the application submitted by the original claimants-heirs of the deceased driver of the motorcycle was u/s 163A of the Motor Vehicles Act and the deceased had died due to his own negligence and had sustained fatal injuries, and therefore, the original claimants are not entitled to any compensation u/s 163A of the Motor Vehicles Act. Shri Mehul Sharad Shah, learned Advocate appearing on behalf of the Appellant-National Insurance Company has heavily relied upon the recent decision of the Hon''ble Supreme Court in the case of Ningamma and Another Vs. United India Insurance Co. Ltd., as well as the decision of the Division Bench of the Karnataka High Court in the case of Appaji (since deceased) and Another Vs. M. Krishna and Another, He has also relied upon the decision of the Division Bench of this Court in the case of United India Insurance Company Ltd. v. Jagatsinh Valsinh, reported in 1986 (2) GLR 1423.
It is submitted by Shri Mehul Shah, learned Advocate appearing on behalf of the Appellant-opponent No. 2 that in case of Ningamma (supra) the Hon''ble Supreme Court has in a similar set of facts and circumstances where the deceased driver had borrowed the motorcycle from its owner and the motorcycle had dashed against a bullock-cart proceeding ahead resulting into the death of the motorcyclist. The legal representatives of the deceased had filed the claim u/s 163A of the Motor Vehicles Act and the learned Tribunal allowed compensation against the Insurance Company, which was quashed and set aside by the High Court by holding that the claim was not maintainable as there was no tort-feasor involved and in the SLP against the same the Hon''ble Supreme Court has specifically observed and held that legal representatives of a person driving the vehicle after borrowing it from the owner meets with accident without involving any other vehicle would not be entitled to claim compensation u/s 163A of the Motor Vehicles Act. It is submitted that in the said decision the Hon''ble Supreme Court has observed that borrower steps into the shoes of the owner and the owner cannot himself be a recipient of compensation as the liability to pay the same is on him. It is submitted that in the said decision the Hon''ble Supreme Court has considered Anr. decision of the Hon''ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, wherein it was held in the said decision that Section 163A of the Motor Vehicles Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. It is further submitted that similar view has been taken by the Division Bench of the Karnataka High Court in the case of Appaji (Since Deceased) (supra), and therefore, it is requested to allow the present appeal.
The present appeal is opposed by Shri Darji, learned Advocate appearing on behalf of the original claimants. He has relied upon the decision of the learned Single Judge of this Court in the case of New India Assurance Co. Ltd. Vs. P. Saguna and Others, It is submitted that in the said decision the learned Single Judge of this Court has taken contrary decision and on considering Section 163A of the Motor Vehicles Act, it is held that the liability to pay compensation u/s 163A of the Motor Vehicles Act would extend "even in case of a driver who is alleged to be responsible for causing the accident", and therefore, relying upon the aforesaid decision of the learned Single Judge of this Court, it is requested to dismiss the present appeal.
Now, so far as reliance placed upon the decision of the learned Single Judge of this Court in the case of P. Saguna, Wd/o. P. Balakrishna (supra), Shri Mehul Shah, learned Advocate appearing on behalf of the Appellant-original opponent No. 2 has submitted that against the said decision SLP has been preferred before the Hon''ble Supreme Court and the same is pending and to the best of his knowledge and information the said judgment is stayed by the Hon''ble Supreme Court. It is submitted by Shri Mehul Shah, learned Advocate appearing on behalf of the Appellant-opponent No. 2- National Insurance Company that however in view of the subsequent binding decision of the Hon''ble Supreme Court in the case of Ningamma (supra) the controversy raised in the present appeal is now not res integra, and therefore, it is requested to allow the present appeal.
Heard the learned Advocates appearing on behalf of the respective parties at length.
The short question, which is posed for consideration of this Court, is whether the heirs of the driver/owner, who was driving the vehicle and in absence of any other vehicle involved in the accident, whether the claimants are entitled to compensation u/s 163A of the Motor Vehicles Act?
As such, the aforesaid controversy is now not res integra in view of the decision of the Hon''ble Supreme Court in the case of Ningamma (supra). Identical question came to be considered by the Hon''ble Supreme Court in the aforesaid decision and in Paragraphs 13, 18, 19 and 20, the Hon''ble Supreme Court has observed and held as under:
In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation u/s 163A of the Motor Vehicles Act or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative? Before dwelling further, it would be useful to discuss the relevant provisions of Sections 163A and 166 of the Motor Vehicles Act applicable in the present case.
163A. Special provisions as to payment of compensation on structured formula basis-
(1) 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.
(2) 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.
(3) 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.
Application for compensation-
(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as Respondents to the application....
In the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, wherein one of us, namely, Hon''ble Justice S.B. Sinha was 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 Anr. 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 163A of the Motor Vehicles Act 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 u/s 163A of the Motor Vehicles Act 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 163A of the Motor Vehicles Act. 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 authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.
We have already extracted Section 163A of the Motor Vehicles Act 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 compensation is on the Insurance Company or the owner, as the case may be as provided u/s 163A. But if it is proved that 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 163A of the Motor Vehicles Act. 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 u/s 163A of the Motor Vehicles Act.
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 u/s 163A of the Motor Vehicles Act 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. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the Motor Vehicles Act. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by legal representatives of the deceased has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the Insurance Company liable to make the payment to the heirs. In this context, reference could be made to relevant Paragraph of Section 147 of the Motor Vehicles Act which reads as follows:
Requirements of policies and limits of liability--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; or
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(1) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.
(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of any accident, upto following limits, namely-
(a) save as provided in Clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(5) Notwithstanding anything contained in any law for the time-being in force, an insurer issuing a policy of insurance under this Section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
Thus, on interpretation of the provisions of Section 163A of the Motor Vehicles Act the Hon''ble Supreme Court has specifically observed and held that when in a case of death of a borrower of the motorcycle, who had borrowed the motorcycle from its owner and in case the said motorcycle dashed against the bullock cart proceeding ahead resulting into the death of the motorcyclist, the legal representatives of the person driving the vehicle, after borrowing it from the owner meets with an accident without involving any other vehicle, would not be entitled to claim compensation u/s 163A of the Motor Vehicles Act. In the said decision, the Hon''ble Supreme Court has specifically observed and held that in such a case the borrower steps into the shoes of the owner and the owner cannot himself be a recipient of compensation as liability to pay the same is on him. It is to be noted that in the said decision the Hon''ble Supreme Court has considered the earlier decision of the Hon''ble Supreme Court in the case of Rajni Devi (supra) in which it was categorically held that Section 163A of the Motor Vehicles Act cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved.
Identical question came to be considered by the Division Bench of the Karnataka High Court in the case of Appaji (Since Deceased) (supra). In the said decision, the Division Bench of the Karnataka High Court has specifically observed and held that Section 163A of the Motor Vehicles Act was never intended to provide relief to those who suffered in a road accident not because of the negligence of Anr. person making use of a motorcycle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. It is specifically observed and held by the Karnataka High Court in the said decision that Non-obstante clause in Section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant u/s 163A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that accident had occurred on account of any negligence or rashness on his part. It is observed by the Division Bench of the Karnataka High Court that, that does not, mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the Insurance Company pay for the same. Relevant discussion of the Division Bench is in paragraph Nos. 19 and 22, which reads as under:
The right to receive compensation u/s 163A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitle a person who is neither a victim nor his/her legal heir to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke Section 163A for making a claim. The concern of the Legislature and the jurists is understandably for the victim in contra-distinction to the victimiser or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunken driving, speeding in what are high performance new generation of automobiles including two-wheelers are accounting for a large number of accidents everyday. Quite often, these accidents kill or wound even the person who is driving the vehicle. Parliament did not in our opinion intend responsible for the accident on structured formula basis in such cases. Neither the provisions of Section 163A nor the background in which the same were introduced disclose any such intention. The argument that Section 163A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must, therefore, be rejected.
Two decisions relied upon by the Appellants may at this stage be noticed. In Kokla Devi Vs. Chet Ram and Another, a Division Bench of the High Court of Himachal Pradesh held that Section 163A had brought about a drastic change in the concept of tortious liability prevailing prior to it. The Court was of the view that the ''Non-obstante clause'' in Section 163A permitted even the tort-feasor to claim compensation on the principle of no-fault liability. With respect to the Hon''ble Judges who delivered the said decision, we find it difficult to subscribe to that view. Section 163A of the Act no doubt brings about a significant change in the legal position as regard the obligation to prove fault is concerned, but the change is not so drastic so as to make even a tort-feasor entitled to claim compensation for his own act of rashness, negligence or imprudence. The ''Non-obstante clause'' in Section 163A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant u/s 163A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not, however, mean that claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the Insurance Company pay for the same. Inasmuch as Section 163A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The correct approach appears to us to be to find out whether in the absence of Section 163A, a claim could on the facts pleaded be maintained by claimant, if the answer is ''no'' because the claimant was himself the tort-feasor, the provisions of Section 163A would not come to his rescue and make such a claim maintainable. If the answer is ''yes'' the beneficial provisions u/s 163A would not come to his rescue and make such a claim maintainable. If the answer is ''yes'' the beneficial provisions u/s 163A would absolve the claimant of the obligation to prove that the accident had taken place on account of the fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the Schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possibly be avoided.
Even in the case of Jagatsinh Valsinh (supra) the Division Bench as far back as in the year 1986 had taken a view that tort-feasor cannot take advantage of his own wrong and cannot claim damages for the injuries sustained.
In view of the aforesaid subsequent binding decision of the Hon''ble Supreme Court in the case of Ningamma (supra), the decision of the learned Single Judge of this Court in the case of P. Saguna, Wd/o. P. Balakrishna (supra) relied upon by the learned Advocate appearing on behalf of the claimants would not be of any assistance to him. It cannot be disputed that the decision of the Hon''ble Supreme Court in the case of Ningamma (supra) is subsequent decision to the decision of the learned Single Judge relied upon by the learned Advocate appearing on behalf of the claimants and it also cannot be disputed that the decision of the Hon''ble Supreme Court in the case of Ningamma (supra) is binding to this Court. The learned Advocate appearing on behalf of the claimants is not in a position to dispute that the decision of the Hon''ble Supreme Court in the case of Ningamma (supra) is on the point and is squarely covering the dispute.
In view of the above and for the reasons stated hereinabove and considering the recent decision of the Hon''ble Supreme Court in the case of Ningamma (supra) the impugned judgment and award passed by the learned Tribunal allowing the Claim Petition filed by the original claimant u/s 163A of the Motor Vehicles Act cannot be sustained and the same deserves to be quashed and set aside. Under the circumstances, the present appeal succeeds and the impugned judgment and award dated 30-6-2010 passed by the learned Motor Accident Claims Tribunal (Main), Kheda at Nadiad in M.A.C.P No. 429 of 2009 is hereby quashed and set aside. In the facts and circumMstances of the case, there shall be no order as to cost.