The New India Assurance Co. Ltd. v. The Judge, Motor Accident Claims Tribunal, Jaipur & Ors.

Order

08/11/2011 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Tripurari Sharma, for the petitioner. Mr. Sandeep Mathur, for the respondents. BY THE COURT : This petition has been filed impugning the award dated 10.10.1997, passed by the learned Judge, MACT, Jaipur on an application moved by the respondents- claimants under Section 140 of Motor Vehicle Act, 1988 ('the Act, 1988', for short) whereunder an award of Rs.50,000/- was passed in favour of the claimants and against the petitioner-Insurance Company.

The brief facts of the case are that one scooter bearing registration No.RJ-14-10-M-8446 belonging to one Mahesh Kumar was insured with the petitioner-Insurance Company. At the time of the occurrence of the accident involving the scooter in issue it appears to have been in use by one Manoj Kumar who had borrowed it from the insured. 2 Manoj Kumar sustained injuries in the accident wherefrom he subsequently died on or about 04.02.1996. In the aforesaid circumstances, the parents, wife and three months minor daughter of Manoj Kumar filed a claim petition confined to Section 140 of the Act, 1988. On considering the claim petition, the MACT, Jaipur, vide order

10.10.1997 negatived the defence of the petitioner- Insurance Company that a petition solely under Section 140 of the Act, 1988 not accompanied by an application under Section 166 of the Act, 1988, was not maintainable and further that in any event as the accident in issue had occurred owing to Manoj Kumar's negligence, the petitioner-Insurance Company was not liable to pay compensation. The learned MACT having considered the matter vide order dated 10.10.1997 passed an award under Section 140 of the Act, 1988 determining a compensation of Rs.50,000/- for the legal representatives of the deceased Manoj Kumar. Aggrieved by the award dated 10.10.1997, this petition has been filed. The counsel for the petitioner submits that the Hon'ble Supreme Court in the case of Ningamma & Anr. Vs. United India Insurance Co. Ltd. [2009 ACJ 2020] has held that the legal representatives of a person driving a 3 vehicle after borrowing it from the registered owner thereof being involved in an accident where no other vehicle are involved is not entitled to compensation under Section 163A of the Act, 1988. The reasoning of the Hon'ble Supreme Court in the aforesaid case is that the borrower of the motor vehicle from its owner steps into the shoes of the owner and as owner himself cannot be a recipient of compensation in an accident owing to his own negligence, the same would be the position of the borrower. Counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Sadanand Mukhi & Ors. wherein the Hon'ble Supreme Court on parity of reasoning with the reasoning in Ningamma (Supra) has held that the son of the insured would be deemed to be owner and not be entitled any compensation from the Insurance Company in the event of an accident when the son was driving his father's vehicle and when no other vehicle was involved establishing the driver's own negligence. Counsel for the respondents first submits that the writ petition ought to be dismissed on the ground of alternative remedy inasmuch as the award under Section 140 of the Act, 1988 is appealable under Section 173 of the Act, 1988. He further submits that the case set up by the 4 petitioner-Insurance Company before the learned Tribunal was first that an application under Section 140 of the Act, 1988 not accompanied by one petition under Section 166 of the Act, 1988 was not maintainable and further that a person who was negligent and himself occasioned the accident was not entitled to compensation. Reliance has been placed on the judgments of the Hon'ble Supreme Court in the case of Yallwwa (Smt.) & Ors. Vs. National Insurance Co. Ltd and Anr. [MACD 2007 (1)(SC) 532] for the first preposition and on K. Nandakumar Vs. Managing Director, Thanthai Periyar Transport Corporation Ltd. [1996 ACJ 555] for the second. Counsel for the respondents further submits that an application under Section 140 of the Act, 1988 is maintainable even when not accompanied by one petition under Section 166(3) of the Act, 1988. He further submits that proforma of the claim petition as given out in the Rajasthan Motor Vehicles Rules, 1990 also visualizes a claim petition for compensation under Section 140 of the Act, 1988 only. The counsel for the respondents would further submit that in fact by subsequent amendment, a claim petition under no fault liability is even otherwise maintainable with reference to Section 163(A) of the Act, 1988 and on a parity of reasoning, this Court ought to hold similarity in respect of an application under Section 140 of the Act, 1988. 5 I have heard the counsel for the petitioner and also the respondents and perused the judgments cited by both the parties. I am of the view that this Court cannot overlook a legal position even though such legal formulation was not agitated by the petitioner-Insurance Company either before the MACT, Jaipur or even in the grounds of the writ petition before this Court. The question of maintainability of a claim petition either under Section 140 of the Act, 1988 or under Section 166 of the Act, 1988 or now under Section 163A of the Act, 1988 is a question of jurisdiction which goes to the root of the matter. The contention of the counsel for the respondents to overlook the case of the petitioner-Insurance Company based on the enunciation of law by the Hon'ble Supreme Court in the case of Ningamma (Supra) merely because no such ground was raised before the MACT or in the petition before this Court therefore cannot be sustained. A close reading of the judgment Ningamma (Supra) establishes that the borrower of a motor vehicle from its owner steps into the shoes of the owner and like the owner would be disentitled to any claim for compensation as a third party. In the facts of the case, it cannot be denied that the deceased Manoj Kumar had 6 borrowed the insured scooter from Mahesh Kumar, the owner. It is also an admitted fact that while Manoj Kumar was riding the said scooter, the scooter skidded leading to injuries to Manoj Kumar and subsequently to his death. There was no second vehicle involved in the accident and consequently, the entire liability for the accident lies on the driver of the vehicle i.e. Manoj Kumar. Manoj Kumar therefore, himself was a tort feasure and his legal representative were not entitled to any compensation in this claim petition. In this view of the matter, I am of the considered view that the learned MACT while deciding the claim application under Section 140 of the Act, 1988 by way of MAC Case No.576/1996 committed an error of jurisdiction in allowing the application and granting compensation of Rs.50,000/- to the claimants. However, even while the order dated 10.10.1997 passed by the MACT, Jaipur in MAC Case No.567/1996 is liable to be set aside. I am of the view that as the matter pertains to an incident of 14.04.1995 it would not to be just and proper to allow the petitioner-Insurance Company to recover the amount paid to the respondents-claimants who inter alia include a young widow and a minor child then only 7 three months. These directions are also occasioned by the fact that the legal ground taken in the course of arguments before this Court was not agitated before the MACT. The upshot of the aforesaid discussion is that the writ petition stands allowed with the direction that the Insurance Company will not seek to make any recovery from the respondents-claimants in the writ petition with regard to the compensation awarded by the MACT vide order dated

10.10.1997 in MAC Case No.576/1996. Stay application is also disposed of. (ALOK SHARMA), J. MS/-