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2017 Supreme(All) 2787
IN THE HIGH COURT OF ALLAHABAD
Vikram Nath, Salil Kumar Rai, JJ.
Kaisar Bano and Others – Appellants
Versus
Vikram Chand Verma and Others – Respondents
First Appeal From Order No. - 1386 of 2013
Decided On : 30-11-2017
For the Appellant : L.K. Dwivedi, Rupak Chaubey
For the Respondent: D.K. Srivastava, Sanjiv Kumar
The liability of the owner or the insurance company to pay compensation arises when there is death or bodily injury including permanent or temporary disablement as well as damage to the property of a third party due to an accident arising out of the use of a motor vehicle.
Headnote:
Motor Accident - Compensation - Employees Compensation Act, 1923, Motor Vehicle Act, 1988 - 140, 163-A, 165, 166 - The claimants-appellants were entitled to compensation from respondents No. 1 and 3 i.e. the owner of the vehicle and the insurance company as the death of Mohd. Basir was a result of injuries caused to him in an accident arising out of the use of motor vehicle of respondent No. 1, i.e. offending vehicle U.P. 64E 5388. The matter is remanded back to the Tribunal to decide the quantum of compensation payable to the claimants-appellants in accordance with law.
Fact of the Case:
The claim petition was filed by the claimants alleging that on 6.11.2009 Mohd. Basir, along with his son Mohd. Sahjad was going to his workplace by motorcycle. While on his way, a truck negligently driven by its driver hit Mohd. Basir, causing injuries that led to his death. The claimants sought compensation under the Motor Vehicle Act, 1988.
Finding of the Court:
The Tribunal erred in dismissing the claim petition on the ground that it was barred under Section 167 of the Act, 1988. The court held that the claimants were entitled to compensation from the owner of the vehicle and the insurance company as the death of Mohd. Basir was a result of injuries caused in an accident arising out of the use of the motor vehicle. The matter was remanded back to the Tribunal to decide the quantum of compensation payable to the claimants-appellants in accordance with law.
Issues: The issues included whether the claimants were entitled to compensation, whether the claim petition was barred under Section 167 of the Act, 1988, and whether the claimants had claimed compensation under the Employees Compensation Act, 1923.
Ratio Decidendi: The court held that the claimants were entitled to compensation from the owner of the vehicle and the insurance company as the death of Mohd. Basir was a result of injuries caused in an accident arising out of the use of the motor vehicle. The court also held that the claim petition was not barred under Section 167 of the Act, 1988.
Final Decision: The matter was remanded back to the Tribunal to decide the quantum of compensation payable to the claimants-appellants in accordance with law.
Salil Kumar Rai, J.
1. Case taken up in the revised list. Learned counsel for the claimants-appellants as well as learned counsel for Oriental Insurance Company Limited-respondent No. 3 are present. Shri D.K. Srivastava representing respondent No. 2 is not present. Respondent No. 2 is the driver of the vehicle involved in the accident. Respondent No. 1 is the owner of the said vehicle. The vehicle was insured with respondent No. 3.
2. Perused office report dated 17.9.2016. As per office report there is deemed service on respondent No. 1, but no one has put in appearance on behalf of respondent No. 1.
3. In view of the aforesaid, we proceed to hear the present appeal finally with the consent of the learned counsel for the parties present.
4. The present First Appeal From Order has been filed by the claimants-appellants against the judgment and award dated 30.3.2013 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No. 1 (hereinafter referred to as, 'Tribunal') Bhadohi, Gyanpur in Motor Accident Claim Petition No. 32 of 2010.
5. The claim petition was filed by the claimants instituting MACP No. 32 of 2010 alleging that on 6.11.2009 Mohd. Basir, alongwith his son Mohd. Sahjad was going to his workplace by motorcycle No. M.P. 53 MA 5778. While on his way a truck hywa No. U.P. 64E 5388 (hereinafter referred to as, 'offending vehicle'), which was being driven by its driver negligently, hit Mohd. Basir as a consequence of which Mohd. Basir suffered injuries and subsequently died as a result of said injuries. It was stated in the claim petition that Mohd. Basir was employed as Field (Foreman) with J.P. Mineral Limited, Singrauli, Madhya Pradesh. Claimant No. 1 is the wife of the deceased-Mohd. Basir, claimant Nos. 2 to 4 are the sons of Mohd. Basir and claimant No. 5 is the daughter of Mohd. Basir. Claimants No. 2 to 5 were minor at the time of institution of claim petition and were thus represented by their mother and natural guardian.
6. Before the Tribunal the respondent No. 1 did not appear to contest the claim petition, and therefore, the case proceeded ex parte against respondent No 1. Respondent No. 2 i.e. the driver of the offending vehicle contested the claim petition by filing his written statement wherein he denied the incident narrated in the claim petition and also denied his liability for payment of compensation on the ground that he had a valid driving license at the time of accident and also because the offending vehicle was insured with the Oriental Insurance Company Limited. For the aforesaid reason, respondent No. 2 stated, that liability to pay compensation for the alleged accident was on the insurance company i.e. respondent No. 3.
7. Respondent No. 3 also contested the claim petition before the Tribunal and filed its written statement denying its liability to pay compensation. In its written statement respondent No. 3 stated that as the claimants had been awarded compensation under the Employees Compensation Act, 1923 (hereinafter referred to as 'Act, 1923') vide order dated 24.7.2012 passed by the Commissioner for Employees Compensation, Sidhi, Madhya Pradesh (hereinafter referred to as 'Commissioner'), therefore, by virtue of Section 167 of Motor Vehicle Act, 1988 (hereinafter referred to as 'Act, 1988), proceedings under the Act, 1988 for the same incident are not maintainable and the claimants are not entitled to get any compensation under the Act, 1988. In its written statement, respondent No. 3 further pleaded that the alleged accident had occurred due to negligence of the deceased-Mohd. Basir and for the said reason also the claimants are not entitled to get any compensation under the Act, 1988. In addition, respondent No. 3 also pleaded in its written statement that at the time of alleged accident the offending vehicle did not have proper fitness certificate, and thus, the insurance company is not liable to pay compensation on behalf of respondent No. 1 i.e. the owner of the offe
