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2013 Supreme(All) 2573
ALLAHABAD HIGH COURT
Ritu Raj Awasthi, J.
Oriental Insurance Co. Ltd. -Appellant
Versus
Mohd. Saleem and Others -Respondent
F.A.F.O. No. 1066,1067,1068,1069, 1070 of 2011 etc.
Decided On : 11-11-2013
Counsel for the Appellant: S. C. Gulati.
Counsel for the Respondents: Alok Saxena. Ashish Saxena, Bryesh Yadau and M. P. Yadav.
Under Section 163-A of the Motor Vehicles Act, defendants can plead and establish 'fault' liability of the driver of the vehicle to defeat claim petitions. The court also recognized the concept of contributory negligence in apportioning liability.
Headnote:
Motor Vehicles Act - Compensation - Section 163-A
Fact of the Case:
The judgment pertains to five first appeals from orders arising out of the same accident, where the Tribunal awarded compensation to the claimants for an accident involving a Mini Bus and a motorcycle resulting in the death of five individuals.
Finding of the Court:
The court analyzed whether the appellants, as defendants, were entitled to raise the pleadings of 'fault of the driver of the motorcycle' to defeat the claim petitions and whether there was contributory negligence on the part of the motorcycle driver. The court also addressed the issue of liability and modified the judgments of the Tribunal to apportion the liability between the Mini Bus and the motorcycle.
Issues: The issues included whether the appellants could raise the pleadings of 'fault' liability of the motorcycle driver and whether there was contributory negligence on the part of the motorcycle driver.
Ratio Decidendi: The court concluded that under Section 163-A of the Motor Vehicles Act, the defendants could plead and establish 'fault' liability of the driver of the motorcycle to defeat the claim petitions. The court also found that there was contributory negligence on the part of both the Mini Bus and the motorcycle drivers, apportioning the liability at 75% and 25% respectively.
Final Decision: The appeals were partly allowed, and the liability to pay compensation was apportioned between the Mini Bus and the motorcycle. The court also observed that there was no provision to fix penal interest and directed the refund of excess deposited amount by the appellants.
Heard learned counsel for the appellant as well as Mr. M.P. Yadav, learned counsel appearing for respondents-claimants and Mr. Alok Saxena, learned counsel for respondents-vehicle owner of Mini Bus bearing registration No. U.P. 32 A.N./0621.
2. These are five first appeals from orders arising out of same accident, as such, they have been connected and heard together and are being decided by the common judgment.
(i) First Appeal From Order No. 1067 of 2011 arises out of the judgment and order dated 29.7.2011 passed in claim petition no. 526 of 2007 whereby the Tribunal has awarded a sum of Rs. 1,52,000/- as compensation along with 6% simple interest from the date of institution of claim till actual payment is made.
(ii) First Appeal From Order No. 1068 of 2011 arises out of the judgment and order dated 29.7.2011 passed in claim petition no. 525 of 2007 whereby the Tribunal has awarded a sum of Rs. 1,52,000/- as compensation along with 6% simple interest from the date of institution of claim till actual payment is made.
(iii) First Appeal From Order No. 1069 of 2011 arises out of the judgment and order dated 30.7.2011 passed in claim petition no. 524 of 2007 whereby the Tribunal has awarded a sum of Rs. 1,52,000/- as compensation along with 6% simple interest from the date of institution of claim till actual payment is made.
(iv) First Appeal From Order No. 1066 of 2011 arises out of the judgment and order dated 30.7.2011 passed in claim petition no. 522 of 2007 whereby the Tribunal has awarded a sum of Rs. 1,96,500/- as compensation along with 6% simple interest from the date of institution of claim till actual payment is made.
(v) First Appeal From Order No. 1070 of 2011 arises out of the judgment and order dated 30.7.2011 passed in claim petition no. 523 of 2007 whereby the Tribunal has awarded a sum of Rs. 1,96,500/- as compensation along with 6% simple interest from the date of institution of claim till actual payment is made.
3. The learned Tribunal has also directed that in case of failure to pay awarded amount within the prescribed period, the interest rate shall be enhanced to 9% per annum.
4. Learned counsel for the appellants-Insurance Company submitted that the learned Tribunal has grossly erred in awarding compensation against the Insurance Company and in favour of the claimants, as the said accident had not taken place due to fault on the part of driver of Mini Bus No. U.P. 32 A.N./0621. The learned Tribunal has failed to appreciate that in the motorcycle bearing Registration No. U.P. 32 B.R./5314, five persons were riding and they were coming from the opposite side and had dashed with the stationary Mini Bus which was on its side of the road. The said accident had taken place due to negligence on the part of driver of the motorcycle and not due to any fault of driver of the Mini Bus.
5. It is further submitted by learned counsel for the appellant that even in case of claim petitions filed under Section 163-A of M.V. Act the claimants have to prove the fault, wrongful act or neglect of the offending vehicle and the Tribunal is required to come to conclusion that the said accident had taken place due to the fault on the part of the offending vehicle. It is correct that under Section 163-A the claimants are not required to prove rash and negligent driving of the offending vehicle, however it does not mean that even in case there is no fault on the part of the offending vehicle and accident has taken place only due to negligence on the part of the other vehicle in which the deceased were traveling even then the compensation is to be paid to the claimants.
6. The submission is that in the present case as per the site plan prepared by the police subsequent to the First Information Report lodged by the claimants, it has come that the accident had taken place on the road, at a place which indicates that the motorcycle has deviated from its side and had moved towards its right due to which it had come i
