Decided in Favour of :
Respondnet
Appeal Dismissed

D.H. Waghela, J.—The appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, “the Act”) seeks to challenge order dated 18.06.2007 of M.A.C.T., Bhuj in M.A.C.P. No. 556 of 2004 only on the ground that the claim under Section 163-A of the Act could not have been allowed in favour of the heirs of the driver of sole vehicle involved in the accident. The appeal was restricted to the liability upto Rs. 2,82,834/- out of the award of Rs. 3,82,834/- (with interest, and cost) in view of the fact that, admittedly, compensation of Rs. 1,00,000/- was covered by the personal accident insurance of the driver. The facts about which there is no controversy are that, on 05.06.2004, the deceased, driving scooter No. GJ-7-P-5487, dashed with the parapet of a bridge near village Anandsar in Kachchh district. The deceased, aged 42 was claimed to be earning Rs. 40,000/- and his parents, widow and children claimed compensation under Section 163-A of the Act. The scooter driven by the deceased was owned, by Respondent No. 7 and insured by the appellant. Learned Counsel Mr. Sunil B. Parikh, appearing for the appellant, vehemently argued that compensation could not legally be claimed by the heirs of the victim of the accident, who was himself solely responsible for the accident. He relied upon the Division Bench judgment dated 13.07.2005 of this Court in National Insurance Company vs. Rasilaben Shantilal Yadav Wd/o Late Shantilal Yadav and Others [First Appeal No. 3354 of 2000], wherein the deceased was going on a scooter which was hit by a tanker which was not traceable. The Court observed that the claim should have been made against the driver, owner and Insurance Company of the tanker and in absence of their particulars, the claimants could claim compensation from the Collector of the district, under Section 163 of the Act as a “hit and run” case.

2. Having regard to the language and purport of the provisions of Section 163-A, the owner of the motor vehicle or the authorised insurer has to be held liable to pay compensation in case of death or permanent disablement due to accident arising out of the use of motor vehicle. Therefore, the present case is apparently covered by the terms of Section 163-A of the Act. Recently, this Court has, in First Appeal No. 2042 of 2007 and allied matters, on 16.01.2008, analyzed the scheme of the provisions and, after referring to and relying upon a series of relevant judgments of this Court and the Apex Court, held as under:—

“9. The scheme of the provisions relevant for interpretation and application of Section 163-A is fairly clear, although not very simple. Section 163-A is engrafted into Chapter XI entitled “Insurance of Motor Vehicles Against Third Party Risks” and clearly provides for liability of the insurer to pay compensation, as indicated in the Second Schedule, notwithstanding anything contained in the Act or in any other law or instrument having force of law. Simply put, it creates an absolute liability of the owner of the motor vehicle as well as the authorised insurer in case of death or permanent disablement due to accident arising out of the use of motor vehicle. And, self-contained code, as it is held to be in Deepal Soni (Supra) the liability should not depend upon or be subject to any other consideration under any other provision of law. That conclusion would be further buttressed by reading the relevant part of Sub-section (1) of Section 149 of the Act. That part, shorn of irrelevant or adjectival clauses, provides that if an award in respect of any liability required to be covered by the policy or under the provisions of Section 163-A is obtained against any person insured by the policy, the insurer shall, subject to the provisions of that section, pay to the other person entitled to the benefit of the decree, any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor.

9.1 Conjoint, reading of Sections 149 (1) and 163-A (1) would lead to the co