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Judgment
This appeal is preferred under Section 173 of MV Act challenging the judgment and award dated 14.03.2024 delivered by Learned Member, Motor Accident Claims Tribunal, Court No.5, West Tripura, Agartala in connection with TS(MAC) 197 of 2022.
Heard Learned Counsel Mr. R. Saha appearing on behalf of the appellant and also heard Learned Counsel Mr. S. Bhattacharjee appearing on behalf of the claimant-respondents.
At the time of hearing Learned Counsel for the appellant drawn the attention of this Court that on the alleged date the deceased himself was responsible for the accident at the time of riding his motor cycle and there was no third party risk involved in this matter and the respondent-claimants without resorting proper recourse of law filed the claim petition before the Tribunal and the Tribunal at the time of determination of the compensation wrongly claimed the amount of compensation amounting to Rs.16,09,000/- but as per second schedule of the MV Act only awarded compensation amounting to Rs.5,00,000/-which was totally illegal and not supported by law. So, Learned Counsel for the appellant urged for setting aside the judgment delivered by the Tribunal. In support of his contention Learned Counsel relied upon a judgment of the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd vs. Jhuma Saha (Smt.) and Others reported in (2007) 9 SCC 263 wherein the Hon’ble Apex court in similarly situated matter dismissed the judgment of the High Court. It was further submitted that the subject matter of the present case is squarely covered by the principle of the aforesaid judgment. So Learned Counsel urged for allowing this appeal by setting aside the judgment of the Learned Tribunal.
On the other hand, Learned Counsel for the respondent-claimants submitted that there was no perversity in the judgment and the Learned Tribunal after considering the evidence on record determined the amount of compensation amounting to Rs. 16,09,000/-. But as per second schedule of the MV Act only awarded compensation amounting to Rs.5,00,000/- in favour of the respondent-claimants and there was no infirmity in the judgment and urged for dismissal of this appeal.
Now, let us discuss about the subject matter of the petition filed before the Tribunal. The respondent-claimants filed the claim petition to the Tribunal with an assertion that on 03.07.2021 at about 21.00 hours when the deceased Papu Debnath was proceeding from NIT side towards his home by riding his own Bajaj Pulsar-220 motor cycle bearing Registration No.TR01-AP 7664 through Ranirbazar NIT road via Ranirbazar Mara Chowmuhani and on the way when he arrived in front of the house of one Uttam Debnath nearby Ranirbazar PHC, suddenly the rider lost control over the bike due to the sudden hit of a street dog and as a result he fell down on the road and about 20 cubits proceeded towards Marachowmuhani by way of skidding and he sustained severe injuries. Immediately thereafter he was brought to Ranirbazar PHC from where he was referred to AGMC & GBP Hospital and in the GBP hospital he succumbed to his injuries. In this regard Ranirbazar P.S. U.D. Case No.2021RNB016 dated 09.07.2021 under Section 174 Cr.P.C. was registered. Post-mortem examination was done and chargesheet was filed and the respondent-claimants filed the claim petition. Before the Tribunal the case was contested and finally after taking evidence on record Learned Tribunal allowed the claim petition filed by the respondent-claimants and awarded Rs.5,00,000/- and that judgment he has challenged before this High Court.
I have also perused the said judgment as referred by Learned Counsel for the appellant of the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd vs. Jhuma Saha (Smt.) and Others reported in (2007) 9 SCC 263 (supra) wherein in para Nos.3, 9,10, 11 and 14 Hon’ble the Apex Court observed as under:
3.The deceased was the owner of an insured vehicle bearing Registration No. TR 03 2304, a Maruti van. While he was driving the said vehicle, allegedly, in order to save a goat which was running across the road, the steering of the vehicle failed and it dashed with a tree on the roadside. He suffered injuries. He later on succumbed thereto.
9.Section 147(1)(b) of the Motor Vehicles Act, with which we are concerned, reads as under:
“147. 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— *** (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—
(i)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.
Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.”
10.The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable.
11.Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.
14.In that view of the matter, the impugned judgment cannot be sustained. The appeal is allowed.”
On perusal of the aforesaid judgment it appears that in the said case the deceased was the owner of the vehicle and he himself was to be blamed for accident. The accident did not involve motor vehicle other than the one which he was driving. So naturally there was no scope to direct the insurer to indemnify the insured. But here in the case at hand the subject matter of the claim petition was similar to the case as referred by the Learned Counsel for the appellant. Here in this case the deceased himself was responsible for the alleged accident and he was driving the motor vehicle. So naturally there was no third party liability in this matter and the Learned Tribunal perhaps ignored/overlooked the relevant provision of Section 147(1)(a) of the MV Act and also Section 166 of MV Act. So in view of the observation made by the Hon’ble Supreme Court in the aforenoted case, it appears that the judgment and award passed by the Learned Tribunal below cannot be sustained legally and the same is liable to be interfered with and set aside.
In the result, this appeal filed by the appellant is hereby allowed. The judgment and award dated 14.03.2024 passed by Learned Member, Motor Accident Claims Tribunal, Court No.5, West Tripura, Agartala in connection with TS(MAC) 197 of 2022 is hereby set aside and quashed. However, considerable time consumed by the respondent-claimants in dealing with the matter from the Tribunal to the High Court and it appears that they approached to the wrong forum to redress their grievances. However, the respondent-claimants shall be at liberty to approach to the appropriate forum. In that case the period consumed by them in seeking legal redress may be condoned by the appropriate forum if such redress is sought for. With this observation, this present appeal stands disposed of. Send down the LCR(s) along with a copy of this judgment. Also supply a copy of this judgment to Learned Counsel for both the sides. Pending application, if any, stands disposed of.