Liability for compensation arises based on negligence; minors cannot be held contributively negligent, thus insurers may be liable under vicarious liability when vehicle owners fail to secure their vehicles.

JUDGMENT

Challenging impugned judgment and award dated 21.10.2010 passed by Senior Civil Judge and AMACT, Hukkeri, in MVC No.701/2015, this appeal is filed.

2. Brief facts as stated are that on 08.3.2014, Kum.Satish Mushappa Naik was playing nearby a Mahindra tractor bearing engine no.ZKJCOO205 and chassis no.ZKJCOO205 which belonged to respondent no.1. When he got into driving seat as vehicle key was available, he accidentally started it. While vehicle was moving, it dashed against two other children. Thereafter, Satish himself fell down, came under wheels of tractor and died on spot. Due to untimely death, his parents filed claim petition under Section 166 of Motor Vehicles Act against owner and insurer of offending vehicle.

3. On service of summons, respondent no.1 owner denied accident occurred due to negligence of driver of tractor. Claim petition was also opposed as being excessive and arbitrary.

4. Insurer opposed claim petition on ground that driver of tractor was not holding valid and effective driving licence and claim petition was false, vexatious. Though accident did not occur as alleged, they had managed to file a false complaint. It was also contended that deceased was charge-sheeted as accused no.2 for offences under Sections 287, 338 and 304-A of Indian Penal Code. It was further submitted that deceased himself was tort-feasor and could not take benefit of his own mistake.

5. Based on pleadings, tribunal framed issues and recorded evidence wherein claimant no.2 was examined as PW1 and Exhibits P1 to P7 were marked. In rebuttal, official of insurer was examined as RW1 and Exhibits R1 to R12 were marked.

6. Thereafter, tribunal answered issues in favour of claimant by holding that accident occurred due to rash and negligence of driver of tractor and as vehicle was insured with respondent no.2-insurer, insurer was liable to pay compensation. Assailing said award, insurer is in appeal.

7. Sri Subash J. Baddi, learned counsel for appellant-insurer submitted that tribunal was not justified in holding insurer liable to pay compensation. Even when no negligence could be assigned to driver of insured vehicle. It was submitted that in fact Ex.P1 – complaint filed by claimant no.2 was alleging negligence against deceased Satish also. Relying upon decision of Hon’ble Supreme Court in Minu B. Mehta v/s Bala Krishna Ramchandra Nayan , reported in AIR 1977 SC 1248 , it was submitted that Hon’ble Supreme Court has held it was incumbent upon claimant to prove negligence before owner or insurer could be made liable to pay compensation to victim.

8. Learned counsel further submitted that Hon'ble Supreme Court in Sudhir Kumar Rana v/s Surinder Singh , reported in (2008) 12 SCC 436, held:

“5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact.”

9. Therefore, whether deceased was himself negligent or otherwise would be a question of fact required to be established by leading evidence. It was submitted that after vehicle was parked, accident occurred when deceased Satish had started vehicle and was driving it when he fell down and came under wheels. As complaint was filed against deceased Satish himself, insurer could not be held liable.

10. It was also contended that award was contrary to mandate of Sections 146 and 147 of Motor Vehicles Act (‘MV Act’ for short). It was submitted that Section 146 of M.V. Act mandates that no person shall allow any ‘other person’ to use a motor vehicle unless there was in force a policy of insurance. It is submitted that since a ‘child’ was not covered under Section 146 of M.V. Act, th