KAILASH Vs. RAJENDRA

JUDGEMENT

(1.) Being aggrieved by the award dated 7-4-07 passed by I MACT, Indore in Claim Case No. 118/05 whereby claim petition filed by the appellant was dismissed, present appeal has been filed. Short facts of the case are that appellant filed a claim petition before the learned Tribunal under Section 163-A of the Motor Vehicles Act on 26-9-05, wherein it was alleged that on 4-2-05 when appellant was going on a motor bike bearing registration No. MP 09 JB 8146, he met with an accident with another motor bike which was being driven by an unknown person who dashed the motor bike of the appellant with the result appellant sustained grievous injuries. Appellant was brought to hospital. It was alleged that the offending motor bike on which the appellant was going was owned by respondent No. 1 and insured with respondent No. 2. It was prayed that claim petition be allowed and compensation be awarded. Claim petition was contested by respondent No. 2 on various grounds including on the ground that the respondent No. 2-Insurance Co. was never informed about the accident by the respondent No. 1 or by the appellant. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal dismissed the claim petition against which the present appeal has been filed.

(2.) Mr. Manish Jain, learned Counsel for the appellant argued at length and submits that learned Tribunal committed error in dismissing the claim petition filed by the appellant. It is submitted that claim petition was also dismissed on the ground of negligence on the part of the appellant which is illegal as claim petition was filed under Section 163-A of the Motor Vehicles Act, wherein appellant is not required to plead or establish the negligence of any person for claiming the compensation. It is submitted that findings recorded by learned Tribunal against the appellant is incorrect, illegal and deserves to be set aside. It is submitted that ample evidence is on record to demonstrate that in the motor accident appellant sustained grievous injuries. It is submitted that in the facts and circumstances of the case there was no justification on the part of learned Tribunal in dismissing the claim petition filed by the appellant. Learned Counsel placed reliance on a decision in the matter of Deepal Girishbhai Soni Vs. United Insurance Co. Ltd., Baroda, 2004 AIR(SC) 2107 wherein the Hon'ble Apex Court has observed that in Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. It was further observed by the Hon'ble Apex Court that "In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/- can take the benefit thereof. Reliance is also placed on a decision in the matter of Sitabai Vs. K.B. Saxena, 2007 1 ACC 446 (DB), wherein a Division Bench of this Court held that even if assuming that accident occurred due to negligent driving of deceased, then too it is immaterial for disposal of claim petition filed under Section 163-A of the Act. It was further held that since death occurred in motor accident by vehicle which was owned by respondent No. 1 and insured with respondent No. 2, they are liable to pay compensation. Reliance is also placed on a decision in the matter of United India Insurance Co. Ltd. Vs. Sushila Bai, 2003 ACJ 683 wherein a Division Bench of this Court has held that claimant while claiming compensation under Section 163-A is required to prove the factum of accident and the claimant is required to plead or establish negligence or default of owner of vehicle or vehicles or of any other person. Reliance is also placed on a decision in the matter of Gitesh Vs. Badri Prasad, 2007 ACJ 1519 wherein a Division Bench of this Court has held that question of negligence has no relevance in proceedings under Section 163-A of the Motor Vehicles Act. Reliance is also placed on a decision in the matter of Raisingh Vs. Anil, 2009 ACJ 73 wherein a Division Bench of this Court has held that where two vehicles are involved in accident, parties of both the vehicles were in the form of joint tortfeasors and claimants can sue any one under Section 163-A of the Act. It is submitted that in the facts and circumstances appeal filed by the appellant be allowed and the impugned award be set aside and adequate compensation be awarded.

(3.) Learned Counsel for respondent No. 2 supports the award and submits that appeal be dismissed. It is submitted that appellant himself has not come with clean hands otherwise also it was a case of hit and run, therefore, the claim petition itself was not maintainable and has rightly been dismissed by the learned Tribunal. Learned Counsel placed reliance on a decision of this Court in the matter of Ku. Varsha Vs. Manager, Iffco Tokio, in M.A. No. 2776/05, decided on 6-11-12. Reliance is also placed on a decision in the matter of New India Insurance Co. Ltd. Vs. Rajendra Prasad Bhatt, 2001 1 MPHT 259wherein this Court has held that in a case of hit and run, Motor Accidents Claims Tribunal has jurisdiction to entertain application for compensation. Reliance is also placed on a decision in the matter of Oriental Insurance Co. Ltd. Vs. Vidya Devi,,2005 ACT 2105 wherein Himachal Pradesh High Court has held that in a hit and run case, no authorities empowered under the scheme framed by Central Government under Section 163 are entitled to enquire into and decide such claims. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant has no merits and the same stands dismissed.