A driver can maintain a claim for compensation under Section 163A of the Motor Vehicles Act, irrespective of negligence, as established by the Supreme Court.

JUDGMENT :

S.G. Chapalgaonkar, J.

The appellant/original claimant impugns the judgment and award 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 for compensation under Section 163A of the Motor Vehicles Act has been dismissed by the tribunal.

2. Mr. A.S. Gandhi, learned advocate for the appellant/claimant submits that claimant was employed as a driver of a rickshaw bearing registration No. MH-17/K-7288, owned by respondent No.1. On 29.8.2004, while he was driving rickshaw, it turned turtle due to bad condition of road. He suffered fracture of right lower Rib. Despite medical assistance, permanent disablement to the extent of 25% subsists. He had, therefore, lodged MACP No. 28 of 2005 before the tribunal under Section 163-A of the Motor Vehicles Act, raising the claim for compensation from owner and insurer of the rickshaw. However, the tribunal dismissed the claim petition, holding that the claimant does not fall within the meaning of the term "victim" in terms of Section 163A of the Motor Vehicles Act and cannot claim compensation towards injuries suffered 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 whom allegations of negligence are made can maintain claim under section 163- A of the Motor Vehicles Act and without going into the aspect fault, such claim 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 of the Supreme Court of India in the case of United India Insurance Company v. Sunil Kumar and another, reported in AIR 2017 SC 5710 wherein, on reference to larger bench of the Supreme Court of India, legal position has been espoused that in proceeding instituted under section 163-A of the Act, it is not open for the insurer to raise defence of negligence on the part of the victim. Mr. Gandhi would further submit that vehicle in question was insured under the package policy. The claimant was employee of owner of the vehicle. The risk of employee/driver is statutorily covered in terms of the scheme of the Motor Vehicles Act. As such, he criticised impugned order and urges to allow the claim petition.

5. Mr. A.S. Usmanpurkar, learned advocate for the insurer vehemently submits that when claimant himself was responsible for the accident, no claim is maintainable against the owner and insurer of the vehicle. In this case, the claimant himself was on drivers seat and invited accident because of his own negligence. The tribunal has appropriately considered the claimant's case in the light of law laid down by the Supreme Court of India in the case of Ningamma v. United India Insurance Company reported in 2010(1) All M.R. 441 and dismissed the claim petition.

6. Having considered submissions advanced, only issue that requires consideration in this appeal is, as to "whether driver of the offending vehicle, who suffered injuries in an accident, arising out of use of vehicle, can maintain the claim against owner and insurer of the same vehicle, invoking the provisions of Section 163A of the Motor Vehicles Act.

7. Pertinently, self same issue was referred to the larger Bench of Supreme court, in view of divergent opinion expressed by coordinate bench, doubting correctness of law laid down in case of National Insurance Company v. Sinitha and others (2012)2 SCC 356. The issue has been answered by the three Judge Bench in case of Sunil Kumar (supra) wherein, it is held that in a proceeding instituted under section 163A of the Motor Vehicles Act, claim cannot be defeated raising defence of negligence on part of rider / driver of insured vehicle or it is not open for the insurer to raise defence of negligence on the part of the victim.

8. In the light of aforesaid authoritative pronouncement by the Supreme Court of India, the observations of the tribunal relying