The central legal point established in the judgment is that fault liability of the deceased driver does not bar the legal heirs from claiming compensation under Section 163A of the Motor Vehicles Act, 1988.

1. This appeal questions the legality and correctness of the order dated 23rd June, 2005, in Special Claim Petition No.9/2002 by the Motor Accident Claims Tribunal, Nagpur. The appellant is the insurer of the truck bearing registration No.MP23DA6127 owned by respondent No.7 at the relevant time. This truck was being driven by the deceased Balwant the husband, father and son of the respondent Nos.1 to 6 in that order. When this truck driven by the deceased Balwant reached a spot near Kalamna on NagpurKamptee road on 3.7.2001, another truck bearing registration No.MH31M7557, coming from the opposite direction, collided head on with it. Deceased Balwant suffered serious injuries. He was removed to the hospital where he succumbed to injuries. The respondent Nos.1 to 6 being dependent upon the income of the deceased, laid a claim for compensating them against the owner and the insurer i.e. respondent No.7 and the present appellant respectively under Section 163A of the Motor Vehicles Act, 1988. On merits of the case, learned Member of the Tribunal found that other truck bearing registration No.MH31M7557 was not being driven rashly and negligently and, therefore, the owner and insurer thereof were not necessary parties. The Tribunal further found that the truck bearing No.MP23DA6127, the one driven by deceased Balwant, was at fault.

An objection was taken on behalf of the appellant that if the driver whose legal heirs are claiming compensation for the accidental death of the driver, himself was at fault, no claim for compensation under Section 163A could be filed by the legal heirs on behalf of the deceased against the insurer of the vehicle rashly and negligent driven by the deceased.

The objection was turned down on the ground that Section 163A was not based upon any fault liability and it was not necessary for any party or the claimant to establish the fault or otherwise of the driver of the vehicle involved in the accident. Accordingly, compensation was determined to be at Rs.3,49,500/- and was directed to be paid jointly and severally by the appellant and the respondent No.7 together with interest at the rate of 9% per annum from the date of petition till realization by the impugned award. Not being satisfied with the same, the appellant is before this Court in the present appeal.

2. I have heard Shri A.J. Pophaly, learned counsel for the appellant. None for the respondents though duly served for final hearing. I have gone through the record of the case including the impugned judgment and order. The only point which arises for my determination is :

Whether the claim for compensation filed under Section 163A of the Motor Vehicles Act, 1988 against the insurer of the truck, in the facts and circumstances of the present case, was maintainable ?

3. Shri A.J. Pophaly, learned counsel for the appellant submits that such a claim was not at all maintainable against the appellant as it is well settled law that a tortfeasor cannot be a claimant. He places his reliance upon the cases of Appaji (since deceased) and another vs. M. Krishna and another, reported in 2005(1) T.A.C. 994 (Karnataka) and judgment of the learned Single Judge of this Court date 5th July, 2007, rendered in First Appeal No.1851/2008, M/s. HDFC Chubb General Insurance Co. Ltd. vs. Smt. Shantidevi Rajbalsingh Thakur and another.

4. In the instant case, the basis of grant of compensation under Section 163A of the Motor Vehicles Act appears to be the fault liability arising on account of rash and negligent driving of the driver of the truck insured with the appellant. The claim for compensation is not based upon absence of any fault liability. In the case of Appaji (supra) the Division Bench of the Karnataka High Court considered in extenso the effect of the provisions of Section 163A as well as Section 147 of the Motor Vehicles Act and also the law laid down by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala reported in 200