SUSHILA Vs. PANKAJ MAHAJAN

JUDGEMENT

(1.) The appeal is at the instance of the deceased rider of the motor cycle, who, while traveling on his motor cycle borrowed from the owner met with a fatal injury on account of alleged mechanical defect of the motor vehicle. The petition was, therefore, filed under Section 163A of the Motor Vehicles Act. The Tribunal while determining the issue for compensation arising on account of the claim by parent applied differential multiplier and differential income for the first few years assuming that the contribution to the family would have been larger and reducing the contribution by applying a different multiplier after a few year when there ought to have been prospect of marriage. Learned counsel would argue that in petition filed under Section 163-A calculation ought to have been with reference to the income, deduction and multiplier in the manner suggested by Schedule II itself and there could not have been the assessment in the manner in which it has been done.

(2.) In appeal, I requested the counsel to advance the argument as to how claim under 163-A was possible when the death was not on account of any one's negligence, which aspect was not required to be proved under Section 163-A and how mechanical defect, which caused death would give a cause of action for the claim. Learned counsel appearing for the appellant refers me to the Section, which according to her, would allow for prosecuting any claim so long as the death or injury was on account of "use of a motor vehicle". The consideration of this aspect would require appraisal of Section 163-A itself by its reproduction:-

(3.) The first portion of Section 163-A contains that anything in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle. The whole scheme of the provisions of the Motor Vehicles Act must be understood always in the realm of law of tort with such modification as statute itself provides. The fundamental precept in the law of tort is that there was a duty of care in favour of the victim on whose behalf a petition is prosecuted against a person who owed that care.