NEW INDIA ASSURANCE CO LTD Vs. PARAMESWARAN

JUDGEMENT

(1.) Driver of jeep bearing registration No. KL/7M-7079 died in a motor accident that occurred on 15-6-1997 when the above vehicle hit on a tree on the road side. There were eleven passengers in the jeep and the passengers were also injured. The injured passengers as well as the legal representatives of the driver filed application for compensation before the Motor Accidents Claims Tribunal. The Tribunal found that the accident arose due to the negligence of the driver. O.P.(M.V.) No. 1208 of 1997 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is the application filed by the legal representatives of the driver under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). The Tribunal found that since the accident occurred due to the sole negligence of the driver of the vehicle, his legal representatives are not entitled to any compensation. However, the Tribunal awarded Rs. Fifty thousand towards no-fault liability under Section 140 of the Act. Insurance company filed M.F.A.No. 493 of 2000 questioning the award of compensation under Section 140 of the Act to the driver though paid compensation for other claimants.

(2.) It is the contention of the insurance company that since the accident occurred solely due to the negligence of the driver of the vehicle, the legal representatives of the driver cannot claim compensation under Section 140. Contention of the claimants (legal representatives of the jeep driver) in M.F. A. No. 530 of 2000 is that claim petition was filed under Section 163-A of the Act and to claim compensation under Section 163-A question of negligence need not be considered. In National Insurance Company Ltd. v. Malathi C. Salian , a Full Bench of this Court held that question of negligence need not be considered in a claim under Section 163-A. Compensation cannot be denied even on account of contributory negligence. There is no dispute regarding the above legal proposition. Insurance company cannot defeat the claim under Section 163-A on the ground of death or disablement that occurred due to the wrongful act or negligence on the part of the deceased or the disabled person. As held by the Apex Court in Oriental Insurance Company Ltd. v. Hansrajbhai V. Kodala and Ors. (2001 (2) KLT 235 (SC) = (2001) 5 SCC 575), compensation payable under Section 163-A as per the structured formula basis is not in addition or alternative to determination of compensation on the plea of no- fault liability. As held by the Apex Court in Deepel Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., , proceedings under Section 163-A is not merely an interim relief, but, it is final award. One can either opt for proceedings under Section 163-A or under Section 166 and both are independent of each other as statutorily provided. S.163-A very clearly provides that strict statutory liability is on the owner of the vehicle for death or permanent disability arising out of the use of a motor vehicle. Whether the accident occurred due to the negligence of the victim is not a matter to be considered. The only issue to be proved by the claimant is that the accidental death was arising out of the use of the motor vehicle. In this case, though negligence was attributed to the deceased, his accidental death was arising out of the use of motor vehicle. That fact is not disputed. Therefore, liability of the owner is not disputed. However, in this case, owner of the vehicle, (sixth respondent in the appeal filed by the insurance company), died on 28-11-1998, during the pendency of the proceedings before the Tribunal and his name was deleted from the party array of the appeal filed by the insurance company by order in I.A.No. 586 of 2003. Claimants did not implead the names of the legal heirs when the matter was pending in the Tribunal or before this Court even when petition to delete his name from the party array was filed by the insurance company and copy was received by them. So, they cannot claim compensation from the owner as claim against him had already been abated.

(3.) Liability of the insurance company as per the policy of insurance with respect to driver of the vehicle is limited to the claim under the Workmen's Compensation liability. Apex Court in National Insurance Co. Ltd. v. Prembai Patel and Ors. held that liability of insurer is limited to the extent that arising under the Workmen's Compensation Act if death occurred during the course of employment if only Act policy is taken. But, here, claim petition was not filed by the dependents of the deceased. Therefore, they are not entitled to get compensation under the Workmen's Compensation Act. Compensation under the Workmen's Compensation Act can be claimed only by a dependent of the deceased in the case of death of a workman due to the injuries arising out of employment. 'Dependent' is defined under Section 2 (d) of the Workmen's Compensation Act, 1923 which reads as follows: