Point of Law: It cannot be recognized as an absolute proposition of law that a third party passenger in a hired vehicle can only claim compensation from owner/insurer of offending vehicle.

JUDGMENT :

In a claim under Section 163A of the Motor Vehicles Act, whether the absence of the owner and the insurer of the offending vehicle is fatal is the important question raised in this appeal.

2. The essential facts :-

Autorickshaw bearing No. KL 07 AC 2202 (hereinafter referred to as 'auto A', for short), in which the petitioner/injured was travelling collided with another autorickshaw bearing No.KL 7Z 1162 (hereinafter referred to as 'auto B', for short), with the result, the petitioner sustained serious injuries. The Tribunal, in the impugned order, found on the strength of Ext.B4 final report, that the accident occurred on account of the negligence of the driver of auto B, the offending vehicle and in the absence of the owner and the insurer of that vehicle in the party array, liability cannot be mulcted on the owner and insurer of auto A, in which the injured was travelling. As per the judgment of this Court in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648], the findings recorded in the charge sheet can be taken as prima facie evidence of negligence as against the accused therein.

3. In view of the importance of the legal question involved, Sri.Mathew John was appointed as the Amicus Curiae, who invited the attention of this Court through a three Judges Bench decision of the Hon'ble Supreme Court in United India Insurance Co.Ltd v. Sunil Kumar and another [2017(4) KLT 1093 (SC)]. In the context of interpretation of the expression 'arising out of', learned Amicus Curaie relied upon a Bench decision of this Court in Babu v. Rameshan [1995 (2) KLT 300].

4. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in Ramkhiladi and another v. United India Insurance Company and another [2020 (2) SCC 550]. The learned counsel for the petitioner/appellant argued that a claim under Section 163A of the Act is liable to be recognized upon satisfaction of the following factual parameters:-

(i) that there was an accident;

(ii) accident arose out of the use of a vehicle; and

(iii) the victim suffered death or permanent disablement on account of the accident

5. Unlike in the case of a claim under Section 166 of the Act, the aspect/concept of negligence is completely alien insofar as a claim under Section 163A of the Act is concerned. According to the learned counsel, the Tribunal, therefore, misdirected itself in dismissing the claim petition on the basis of negligence found, as also, for the absence of the owner and insurer of the offending vehicle, the driver of which was found to be negligent.

6. Per contra, the learned counsel for the respondent/insurance company submitted that it would work out complete injustice, if compensation is directed to be paid by the owner/insurer of auto A, in which the injured was travelling, when clear evidence points to the fact that the accident occurred on account of the negligence of the driver of auto B, the offending vehicle. Learned counsel would suggest that the matter may be remanded, so as to enable the appellant/petitioner to implead the driver, owner and the insurer of the offending vehicle, so that the interests of the rival parties can be appropriately balanced.

7. Before addressing the legal issues involved, this Court may straight away record that the suggestion for a remand is quite unacceptable. The accident was of the year 2009, in respect of which subject matter, a remand in the year 2022 would not, for sure, be in the fitness of things. Upon resolving the legal imbroglio, if this Court finds that compensation can be awarded as against the stakeholders of auto A, negligence being a wholly irrelevant factor, then equities can be balanced by permitting the insurer of auto A to proceed against the owner/insurer of auto B to recover the amount paid as compensation.

8. With this prelude, this Court will now address the legal issues involve