High Court
Legal Reasoning
{1} FA 484.13 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 484 OF 2013Sunil S/o. Baburao AshtekarAge 43 years, Occ. NilR/o. Astagaon, Tq. Rahata,Dist. Ahmednagar... APPLELANT (Original claimant)VERSUS1]Balasaheb Baburao Ashtekar,Age 46 years, occ. Business,R/o. Astagaon, Tq. Rahata,Dist. Ahmednagar.2]The New India Assurance Company Limited,through Divisional Manager,New India Assurance Company Limited,Ahmednagar.RESPONDENTS (Original Respondents)Mr. A.S. Gandhi, Advocate for appellants.Mr. A.S. Osmanpurkar, Advocate for respondent No.2. CORAM : S.G. CHAPALGAONKAR, J. DATE : 18th APRIL, 2024.JUDGMENT :-1.The appellant/original claimant impugns the judgment andaward dated 8.11.2012 passed by the Motor Accident Claims Tribunal,Kopargaon in M.A.C.T. No. 28 of 2005, by which the claim forcompensation under Section 163A of the Motor Vehicles Act has been
Legal Reasoning
{2} FA 484.13 R.odtdismissed by the tribunal.2.Mr. A.S. Gandhi, learned advocate for the appellant/claimantsubmits that claimant was employed as a driver of a rickshaw bearingregistration No. MH-17/K-7288, owned by respondent No.1. On29.8.2004, while he was driving rickshaw, it turned turtle due to badcondition of road. He suffered fracture of right lower Rib. Despitemedical assistance, permanent disablement to the extent of 25% subsists.He had, therefore, lodged MACP No. 28 of 2005 before the tribunalunder Section 163-A of the Motor Vehicles Act, raising the claim forcompensation from owner and insurer of the rickshaw. However, thetribunal dismissed the claim petition, holding that the claimant does notfall within the meaning of the term “victim” in terms of Section 163A ofthe Motor Vehicles Act and cannot claim compensation towards injuriessuffered in an accident occurred due to his own fault.3.Mr. Gandhi learned advocate appearing for appellant -claimant submits that even the driver of the vehicle against whomallegations of negligence are made can maintain claim under section 163-A of the Motor Vehicles Act and without going into the aspect fault, suchclaim can be entertained and award can be passed against owner/insurer of vehicle driven by him.4.In support of his contention, he relies upon the judgment ofthe Supreme Court of India in the case of United India InsuranceCompany vs. Sunil Kumar and another, reported in AIR 2017 SC 5710wherein, on reference to larger bench of the Supreme Court of India,legal position has been espoused that in proceeding instituted undersection 163-A of the Act, it is not open for the insurer to raise defence of {3} FA 484.13 R.odtnegligence on the part of the victim. Mr. Gandhi would further submitthat vehicle in question was insured under the package policy. Theclaimant was employee of owner of the vehicle. The risk ofemployee/driver is statutorily covered in terms of the scheme of theMotor Vehicles Act. As such, he criticised impugned order and urges toallow the claim petition.5.Mr. A.S. Usmanpurkar, learned advocate for the insurervehemently submits that when claimant himself was responsible for theaccident, no claim is maintainable against the owner and insurer of thevehicle. In this case, the claimant himself was on drivers seat and invitedaccident because of his own negligence. The tribunal has appropriatelyconsidered the claimant’s case in the light of law laid down by theSupreme Court of India in the case of Ningamma vs. United IndiaInsurance Company reported in 2010(1) All M.R. 441 and dismissed theclaim petition.6.Having considered submissions advanced, only issue thatrequires consideration in this appeal is, as to “whether driver of theoffending vehicle, who suffered injuries in an accident, arising out of useof vehicle, can maintain the claim against owner and insurer of the samevehicle, invoking the provisions of Section 163A of the Motor VehiclesAct.7.Pertinently, self same issue was referred to the larger Bench ofSupreme court, in view of divergent opinion expressed by coordinate bench,doubting correctness of law laid down in case of National Insurance CompanyVs. Sinitha and others (2012)2 SCC 356. The issue has been answered by thethree Judge Bench in case of Sunil Kumar (supra) wherein, it is held that in aproceeding instituted under section 163A of the Motor Vehicles Act, claim {4} FA 484.13 R.odtcannot be defeated raising defence of negligence on part of rider / driver ofinsured vehicle or it is not open for the insurer to raise defence of negligenceon the part of the victim.8.In the light of aforesaid authoritative pronouncement by theSupreme Court of India, the observations of the tribunal relying upon thejudgment in the case of Deepal Girishbhai Soni and others vs. UnitedIndia Insurance Co. Ltd., 2004 ACJ 934 or Ningamma and others Vs.United India Assurance Company Ltd. (supra) defeating claim ofappellant, giving reason of his own negligence cannot be countenanced.Pertinently, in the present case, the claimant was employed as a driver onthe insured rickshaw. Therefore, in the light of statutory scheme of theMotor Vehicles Act particularly under section 147, providing insurancecover specified classes of persons, the owner as well as insurer of motorvehicle are mandated to assume risk of the employed/paid driver understatutory/Liability only policy in relation to the insured vehicle.9In the case of Ningamma (supra), the deceased hadborrowed the vehicle for his own use and stepped into the shoes of theowner. In that contingency, the finding is recorded that he could notraised claim against himself. However, in the present case, since thedeceased was employed as a driver and in pursuance of his employment,he was driving his vehicle, the analogy espoused in the judgment ofNingamma (supra) would not apply. Therefore, this Court holds that theclaim under section 163A of the Motor Vehicles Act at the claimant-appellants instance was maintainable.9.So far as quantum of compensation is concerned, theclaimant asserts that he suffered 25% permanent disability because of {5} FA 484.13 R.odtfracture to his lumber vertebra Nos. 4 and 5. The evidence of Dr.Vinayajand Patil Orthopedic Surgeon is recorded before the Tribunal,who certified 25% disablement to claimant. Further claimant assertsthat he was earning Rs. 3,200/- p.m. from his employment as driver. Theowner of the vehicle admits the same. Claimant appears aged about 35years at the time of accident, hence multiplier of 15 would be applicable.In that view of the matter, there is no difficultly to hold that the claimantmust have have suffered at least 25% loss of earning commensurate topercentage of permanent disablement, which can be worked out as under:-Sr. no.ParticularsAmount1.Annual income Rs. 3200 x 12Rs. 38,400/-2.Access Loss of earning commensuratewith permanent disablement 25% Rs. 9,600/-3Apply multiplier of 15Rs.1,44,000/-3.Add towards pain sufferingIn terms of Schedule II under Section163A of the Motor Vehicles Act Rs. 5,000/-TotalRs. 1,49,000/-Resultantly, the appeal needs to be partly allowed. Hence, the following order :-[a]The first appeal is partly allowed;[b]The judgment and award dated 8.11.2012 passed by theMotor Accident Claims Tribunal, Kopargaon is hereby quashed and setaside;[c]The respondent Nos. 1 and 2 shall jointly and severally paycompensation of Rs. 1,49,000/- to the claimant alongwith interest @7.5% p.a. from the date of institution of claim petition, till realization ofthe amount. {6} FA 484.13 R.odt[d]The award be drawn accordingly; [e]On deposit of the amount of compensation, it be disbursedto the claimant on payment of deficit court fees, if any.[f]Appeal stands disposed of in above terms. [S.G. CHAPALGAONKAR] JUDGE grt/-