The requirement of proof of negligence and/or rashness for grant of compensation under Section 166 of the M.V. act, and the limitations on converting a petition under Section 166 to one under Section 163-a based on income criteria.

JUDGMENT

R. G. avachat, J. - This is an appeal under Section 173 of the Motor Vehicles act (for short, 'M.V. act'). The challenge herein is to the judgment and award refusing to grant compensation on account of injuries and permanent disability suffered in an accident involving motor vehicles. The original petitioner has, therefore, preferred the present appeal.

2. Facts giving rise to the present appeal are as follows : The petitioner was travelling in a Jeep MH-20-E-8074, from Shirdi to Supa, on 25.07.1997. an unknown truck approaching from opposite side, dashed against the Jeep and fled. It was about 9.15 p.m., the petitioner and others in the Jeep suffered multiple injuries. The petitioner's right leg was amputed. He, therefore, preferred the petition (Motor accident Claim Petition No.328 of 1998) against the owner and the insurer of the Jeep he was travelling in.

3. The Tribunal, on appreciation of the evidence in the petition, dismissed the same mainly on the ground of the petitioner having failed to even aver and prove the Jeep driver to have been responsible for the accident.

4. Heard.

Learned advocate Shri N. D. Kendre (appointed) and the learned advocate Shri P. B. Vikhe Patil, representing the petitioner, would submit that it was a case of composite negligence of the drivers of both the vehicles involved in the accident. The petitioner was one of the passengers in the Jeep. although, the First Information Report was lodged against the driver of the truck, it was only in respect of a criminal liability. The petitioner averred in the petition that the accident took place due to rash and negligence on the part of the drivers of the vehicles. according to the learned advocates, the petitioner's right leg had to be amputed. He had to spend a lot for medical treatment. Both the learned advocates, therefore, urged for allowing the appeal. Both of them, in the alternative, urged for permitting them to convert the petition to one under Section 163-a of the M.V. act.

5. Learned advocate for the respondent Insurance Company would, on the other hand, submit that proof of negligence and/or rashness on the part of driver of the offending vehicle/vehicles is a 'sine qua non' for grant of compensation under Section 166 of the M.V. act. The learned advocate took this Court through the averments in the petition, police papers relied on and even the own testimony of the petitioner to ultimately submit that even there is no slightest of whisper attributing rashness or negligence to the driver of the Jeep. according to the learned advocate, the Tribunal has therefore rightly dismissed the petition. On the alternative, prayer for converting the petition to one under Section 163-a of the M.V. act, the learned advocate would submit that the petitioner had already taken recourse to Section 166. He preferred application under Section 140 as well, and received the compensation. according to him, for a claim under Section 163-a of the M.V. act, income of the claimant shall not be more than 40,000/-per annum. The petitioner has been serving and his income is more than the ceiling limit. according to the learned advocate, it is therefore not permissible in law to convert the petition under Section 166 to one under Section 163-a of the M.V. act. In support of his contentions, the learned advocate has relied on the following authorities:

(i) Minu B. Mehta and another Vs. Balkrishna Ramchandra Nayan and another (1977) 2 SCC 441;

(ii) Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385;

(iii) United India Insurance Co. Ltd., Vs. Janabai Yeshwant Kurhat and others 2002 (Supp.2) Bom.C.R. 487;

(iv) M/s New India assurance Co. Ltd., Vs. Smt. ashabai w/o Kalyan Kothi and others 2008 SCC OnLine Bom 574.

6. Considered the submissions advanced. Perused the pleadings, police papers relied on and the evidence, as well. In all these documents, the petitioner has put a blame on driver of the unknown truck involved in the accident