Point of law : The object for incorporating sub-section (2) in Section 163-A of Act is, that burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of claimant. The absence of a provision similar to sub section (4) of Section 140 of Act from Section 163-A of Act, is for shifting onus of proof on grounds of "wrongful act", "neglect" or "default" onto shoulders of defence (owner or the insurance company).

JUDGMENT :

1. This case was directed to be listed in the additional cause list vide order dated 02.12.2021, but it has appeared in the daily cause list. Nevertheless, it is on the day's list and is, accordingly, taken up.

2. Heard Mr. T.J.S. Makker, learned counsel for the appellant and Mr. Anshul Baranwal appearing on behalf of the respondents.

3. The appellant was a driver of a truck bearing Registration No. UP 77 A 7454. He was employed to operate the said vehicle by one Mangali Prasad Gupta, who was the owner of the truck. On 15.05.2013, he was plying the vehicle between Sitapur and Kanpur. When the truck was somewhere about the Police Station-Hasanganj in District-Unnao, a wild animal suddenly jumped onto the road. The driver endeavoured to save the animal, which led him to collide with another truck. The accident led the driver to suffer serious injuries. He sustained fractures to both his lower limbs and presumably to his spine (described in vernacular as 'kamar'). He was rushed to the Medical College at Lucknow. The driver remained admitted to the hospital from 29.05.2013 to 05.06.2013. By the time, he preferred this claim, he was still undergoing treatment. It was pleaded that as a result of the accident, he was completely handicapped. One of his legs was amputated above the knee and now, he is not fit to do any work in consequence of the injuries that he sustained. He suffered mentally, physically and economically, besides the heavy medical expenditure that the treatment entailed. It is on the foot of the aforesaid facts that the petitioner instituting Claim Petition No. 334 of 2013 under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act').

4. Shorn of unnecessary detail, it must be recorded that the owner of the truck, who was impleaded as opposite party no. 1 to the claim petition, denied the accident as also his liability. It is further pleaded that the vehicle was insured with the New India Insurance Co. Ltd., who were impleaded as opposite party no. 2 to the claim petition.

5. The Insurance Company, on their part, denied all the assertions in the claim petition. It was further asserted that the claim was, in any case, exaggerated and brought on facts that were concocted. The registration certificate, permit, fitness of the vehicle etc. were questioned with the assertion that if all those documents were not in order, the insurance company would not be liable, in any case. The validity of the driver's licence was also put in issue.

6. The Tribunal, after framing as many as seven issues and answering each, on the basis of the evidence on record, found for the driver and against the owner as well as the Insurance Company. By the impugned judgment and award, the claim was decreed for a sum of Rs.6,23,292/- with 7% simple interest, payable annually from the date of presentation of the petition, till realization.

7. Aggrieved, the present appeal has been preferred by the Insurance Company.

8. The only ground urged in support of the appeal by Mr. T.J.S. Makker is that the claimant being the Driver of the truck that met with the accident was a tortfeasor and could not capitalize on his own fault or negligence by preferring a claim petition under Section 163-A of the Act. He places reliance on the decision of the Supreme Court in National Insurance Company Ltd. vs. Sinitha vs. Others, (2012) 2 SCC 356, where it has been held:

"27. Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163-A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163-A of the Act. The object for incorporating sub-section (2) in Section 163-A of