The negligence of the deceased cannot be raised in a proceeding under Section 163A of the Motor Vehicles Act.

JUDGMENT

Alok Aradhe, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the claimant against the judgment dated 05.11.2013 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the MACT' for short) by which the petition filed under Section 163A of the Act filed by the claimant has been dismissed.

2. Facts leading to filing of this appeal briefly stated are that on 23.04.2012 at about 7.05 p.m. deceased Vincy George was riding his motor cycle along with two pillion riders from Belthangady to Guruvayanakere. When he reached near Kasaba Village, KSRTC bus bearing registration No.KA19-F-2489, which came from the opposite direction, dashed the motor cycle of the deceased. As a result of the aforeaid accident, deceased Vincy sustained grievous injuries and died on the spot.

3. The claimant viz., the mother thereupon filed a petition under Section 163A of the Act inter alia on the ground that the deceased at the time of the accident was aged about 24 years and was employed as an auto driver. He used to earn Rs.40,000/- per annum. The compensation to the tune of Rs.5 Lakhs along with interest at the rate of 12% per annum was claimed. The corporation filed the written statement in which inter alia it was pleaded that the accident took place solely on account of rash and negligent driving of the bike by the deceased and he was traveling with two pillion riders. It was further pleaded that police have filed First Information Report and have filed the charge sheet against the deceased. It was pointed out that the petition is bad on account of non joinder of necessary parties inasmuch as the Insurance Company, which had insured the bike has not been impleaded.

4. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues and recorded the evidence. The claimant in order to prove her case examined herself as PW1 and produced as many as eight documents viz., Ex.P1 to Ex.P8. The respondent examined the driver of the bus viz., Babu Ramdas Rathod and exhibited two documents viz., spot mahazar and spot sketch viz., Ex.R1 and Ex.R2. The Claims Tribunal vide impugned judgment inter alia held that the accident took place solely due to rash and negligent driving ion the part of the deceased, in which deceased sustained grievous injuries and succumbed to the injuries. The Claims Tribunal held that the claimant is not entitled to compensation. Accordingly, the petition filed by the claimant was dismissed. In the aforesaid factual background, the claimant has filed this appeal.

5. Learned counsel for the claimant submitted that the Claims Tribunal in a proceeding under Section 163A of the Act could not have gone into the issue of negligence and ought to have appreciated that the issue with regard to negligence need not be proved in a proceeding. It is also urged that in a proceeding under Section 163A of the Act, the insurer cannot be permitted to raise any defence of negligence on the part of the victim to counter a claim for compensation. In support of aforesaid submission, reliance has been placed on decision of the Supreme Court in ' UNITED INDIA INSURANCE CO. LTD. VS. SUNIL KUMAR AND ANR, (2017) AIR SC 5710 . On the other hand, learned counsel for the corporation submitted that the petition filed by the claimant suffers from the vice of non joinder of necessary party inasmuch as insurer of the bike was not impleaded. It is further submitted that from material on record, it is evident that the accident took place due to rash and negligent driving of the bike by the deceased. It is also argued that if the claimant himself is the tort feasor, he cannot take the benefit of provisions of Section 163A of the Act.

6. We have considered the submissions made by the learned counsel for the parties and have perused the record. It is well settled in law that when an accident happens through the combined negligence of two persons, h