BABY Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) HUSBAND of the first respondent sustained fatal injuries in a motor accident. While the deceased was riding a Scooter owned by the 6th respondent on 11. 12. 1999, accidentally the Scooter dashed at a stone and he fell down from the vehicle and sustained serious head injuries which resulted in his death. His dependents filed an application for compensation under section 163-A of the Motor Vehicles Act. The Tribunal awarded compensation under section 163-A. The insurance of the vehicle was admitted. There was no pleading in the written statement that rider of the vehicle was not covered under the policy. Since there was valid insurance policy of the Scooter, the appellant insurance company was directed to deposit the amount. Contention of the insurance company is that no other vehicle or person was involved in the accident. Since there is no other person involved in the accident, section 163-A is not applicable. There is no finding or contention that the rider of the Scooter was negligent. Accidentally the motor cycle dashed against a stone and he fell down. Section 163-A is based on strict liability principle. The need for section 163-A was explained by the

(2.) HON'ble Supreme Court in Oriental Insurance Co. v. Hansrajbhai ( (2001) 5 SCC 175 ). The Supreme Court in the above case held that if the Insurance Company is permitted to prove that insured is not at fault, though his vehicle is involved then the whole purpose of Legislature in introducing section 163-A will be frustrated. It was further held that if the insurance company is permitted to prove the negligence even of the victim or no negligence of the insured, then the purpose for which the Legislature introduced section 163-A would be frustrated. Sections 140 and 163-A are based on strict liability principle formulated in Rylands v. Fletcher (1861-73 All ER (Reprint) 1 ). A joint reading of sections would show that for death or permanent disablement suffered due to accident arising out of the use of motor vehicles, the claimants need not prove the wrongful act or neglect or default of anyone. So, third party need not be involved in this case. The Apex Court in Kaushnuma Begum and others v. New India Assurance Co. Ltd. (AIR 2001 SC 485) awarded compensation where the accident occurred due to the bursting of tyres. A Full Bench of this court has considered the matter in detail in National Insurance Co. Ltd. v. Malathi C. Salian (2003 (3) KLT 460 (FB) ). Various decisions of the courts as well as the scope of Section 163-A were mentioned therein and held that merely because the victim was the rider of the vehicle and no other vehicle was involved in the accident, compensation cannot be denied. Section 163-A reads as follows:

(3.) A reading of Section 163-A shows that liability is strict and compensation is payable. Learned counsel cited the decision of the karnataka High Court in Appaji v. M. Krishna (2004 ACJ 1289 ). In that case, it was also proved that the accident occurred due to the negligence of the driver himself. In this case, insured is not the victim. Owner of the scooter was another person. Whether insured can claim compensation from the insurance company for his own negligence is a different question. Apart from that, here there is no proof that the accident occurred due to the contributory negligence of the claimant. It is a pure accident. In any event, question of negligence is not an issue to be considered while disposing of an application under section 163-A. However, if claimants want full compensation, they have to ask for compensation under section 166 and if application is filed under section 166, negligence of the driver of the offending vehicle has to be proved. That is dispensed with here in section 163-A. However, claimants will be entitled to compensation only as per the structured formula. In this connection, we give below the differences between sections 166 and 163-A on the basis of various decisions of this court: Table 1: Difference Between Section 163-A and Section 166 Sl. No. Section 163-A Section 166 The victims are not required to prove The victims are compulsorily required to 1 negligence under this section. Prove negligence. Claim under this section is based on Claim under this section is based on 2 'no fault liability'. 'tortuous liability' table 1: Difference Between Section 163-A and Section 166 Only evidence regarding the factum Evidence regarding negligence, various of accident and vehicle involved in other aspects regarding claim for the accident, age of the motor compensation etc. are to be stablished accident victim, income of the by the claimant by a long drawn out trial. claimant etc. need be proved. A long 3 drawn out trial is not contemplated.