2022:BHC-AS:14273 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.191 OF 2017 Mrs. Safiakhatoon Kamal Ahmed Khan and Ors. ...Appellants Versus Farooq Merchant and Anr. ...Respondents ...

Mr. Amol Gatne and Ms Swati Mehta for the Appellants.

Mr. Rajesh Kanojia with Ms Nitika Singh and Riddhi Chavan i/b. M/s.

Res Juris for Respondent No.2.

CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 28th JUNE, 2022.

ORAL JUDGMENT :-

1. By this appeal under Section 173 of the Motor Vehicles Act, 1988, the Appellants have challenged the judgment dated 17/03/2016 passed by the Claims Tribunal, Mumbai dismissing M.A.C.P. No.645 of

2006, filed under Section 166 of the M.V. Act.

2. The Appellant No.1 is the mother and Appellant Nos.2 and 3 are the siblings of the deceased-Mohd. Iftikhar Kamal Ahmed Khan, who expired in a motor vehicular accident on 27/09/2005. It is the case of the Appellants (hereinafter referred to as ‘the Claimants’) that on 27/09/2005 the deceased, the rider of the motor cycle No.MH-03-

AC-2119, was proceeding towards Bandra Reclamation. The Claimants alleged that the deceased was unable to control the vehicle and due to his rash and negligent driving the motorcycle dashed against a road divider resulting in death of the rider as well as the pillion rider.

3. The Claimants had alleged that the deceased was 21 years of age, he was self employed and was earning Rs.5,000/- per month. The Claimants therefore filed a claim petition under Section 166 of the M.V. Act seeking compensation of Rs.10,00,000/-.

4. Respondent No.1, the owner of the motor cycle filed his written statement wherein he stated that the vehicle was insured under policy No.VTC-00504037-000-00. He further stated that he had sold the vehicle to the deceased on 12/09/2005.

5. Respondent No.2-Insurance Company denied its liability to pay any compensation on the ground that the accident had occurred due to rash and negligent driving of the deceased. He was the rider of the motor cycle and was not a third party within the meaning of Section 147 of the M.V. Act. Respondent No.2 further claimed that the risk of driver was not covered under the policy.

6. The Claims Tribunal upon considering the evidence on record observed that the deceased was the rider of the vehicle involved in the accident. He had driven the vehicle in a rash and negligent manner and he was solely responsible for the accident. The Tribunal observed that since the death was caused due to negligence of the rider the claim petition under Section 166 of the M.V. Act was not maintainable and accordingly dismissed the petition. Being aggrieved by the judgment, the Claimants have filed this appeal under Section

173 of the M.V. Act.

7. Mr. Amol Gatne, learned counsel for the Appellant- Claimants concedes that in the facts and circumstances of the case, the claim petition under Section 166 of the M.V. Act was not maintainable. He however, submits that it is permissible to convert the petition under Section 166 to petition under Section 163-A of the M.V. Act. In support of this contention he has relied upon the decision of this Court in New India Assurance Co. Ltd. vs. Ashabai Kalyan Kothi and Ors. 2008 (6) Bom.C.R. 89. Relying upon a three Judge Bench decision of the Hon’ble Supreme Court in United India Insurance Company Limited vs. Sunil Kumar and Anr. (2019) 12 SCC 398, learned counsel for the Appellant submits that Section 163-A provides for grant of compensation on the basis of structured formula without any reference to fault liability. He submits that this decision has not been considered in Ramkhiladi Vs. United Insurance Co. Ltd. 2020 (2) SCC 550.

Learned counsel for the Appellant has also relied upon the decisions in National Insurance Co. Ltd. vs. Sinita 2012 (2) SCC 356, Chandrakanta Tiwari vs. New India Assurance Company Limited and Anr., (2020) 7 SCC 386, Shivaji and Another vs. Divisional Manager, United India Insurance Company Ltd. and Ors., (2019) 12 SCC 395 to contend that