IMPORTANT POINT
The main legal point established in the judgment is that the defense of negligence by the insurance company is not permissible in a claim proceeding under section 163A of the Motor Vehicles Act.

JUDGMENT :

1. The challenge to the judgment dated 12.10.2018, by Motor Accident Tribunal (Main), Kheda at Nadiyad in M.A.C.P. No.515 of 2010, has been given by the claimant of the proceeding under section 163A of the Motor Vehicles Act, 1988 (for short ‘M.V. Act).

2. Learned advocate Mr. Nishit A. Bhalodi for the appellant submitted that the Tribunal has failed to consider the object of provision of section 163A, and oblivious of the provision, which itself clarifies that the claimant need not plead or establish the death or the permanent disablement in respect of which claim has been made, was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

2.1 Advocate Mr. Bhaoldi relying on the judgment of United India Insurance Co. Ltd. Vs. Sunil Kumar & Anr., reported in 2018 ACJ 1: [in Civil Appeal No.9694 of 2013], submitted that the Apex Court has clarified that the insurance company cannot raise the defence of negligence on the part of the victim.

3. Learned advocate Mr. Tanmay B. Karia for respondent no.2 submitted that the judgment of National Insurance Co. Ltd. Vs. Sinitha and Others, reported in (2012) 2 SCC 356, was a base on which the defence of the insurance company was considered, and, thus stated that the judgment is fair.

4. The accident took place on 01.02.2010, while claimant was driving Bolero car bearing Registration No.GJ-7-AR-6804, as per the instructions of his owner - opponent no.1. The relatives of opponent no.1 were travelling in the said car. When they reached near the place of accident, from the opposite direction, the driver of the Sumo bearing Registration No.MH-23-E-3974 i.e. opponent no.3, came in an excessive speed, in rash and negligent manner and dashed with Bolero Car, thus, as a result of the accident, the claimant sustained serious injuries.

4.1 The claim petition was filed under section 163A of the M.V. Act. The Tribunal has relied upon the F.I.R. and referring to the panchnama had observed that both the vehicles, from the front side were damaged and had collided with each other. The Tribunal was of the view that had drivers of both the vehicles taken due care, then accident could have been avoided; hence, concluded the driver of Bolero Car as well as driver of Sumo were equally negligent for the accident.

4.2 The Tribunal while passing the final order had made opponent nos.1 and 2 jointly and severely liable to pay 50% of the awarded amount, while opponent no.3 was made liable to pay rest of the 50%.

5. In case of Sunil Kumar & Anr. (supra), the Apex Court raised the question as to whether in a claim proceeding under Section 163A of the Motor Vehicles Act, 1988, it is open for the Insurer to raise the defence/plea of negligence? Answering the question, it has been held in paragraph no.9, as under :

“9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.”

6. Here, in the present matter, the claimant is victim himself. The Apex Court has clearly held in the referred judgment that it is not open for the Insurer to raise any defence of negligence on the part of the victim. The Apex Court in the judgment of Sunil Kumar & Anr. (supra), has made it clear that the grant of compensation under section 163A of the Act is on the basis of the structured formula, and is in the nature of final award, and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. It has also been noted that though said section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated under section 140(4) of the M.V. Act, but to permit such defence to be introduced by the Insurer and/ or to understand the provisions of section 163A of the