BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED Vs. KANCHAN

JUDGEMENT

(1.) The appeal in FAO No. 172 of 2012 is at the instance of the insurance company challenging the award passed by the Tribunal assessing a compensation under Section 163-A of the Motor Vehicles Act as payable by the insurance company. The case was at the instance of the legal representatives of the deceased, who was riding a motor cycle, fell on the road and suffered fatal injuries. The Tribunal found that since the claim was made under Section 163-A, representatives of the deceased would be entitled to secure a compensation against the insurance company since the entitlement is statutorily recognized on a strict liability basis.

(2.) Learned counsel appearing on behalf of the respondents has two substantive arguments to make. One, the judgment of the Supreme Court in Deepal Girishbhai Soni and others versus United India Insurance Co. Ltd., 2004 0 ACJ 934, where the Supreme Court in paragraph 66 has recognized an entitlement to recover damages even in cases where the deceased himself was negligent. The relevant portion in the judgment is reproduced below:-

(3.) Again when in the case of Deepal Girishbhai Soni's case , the Supreme Court was considering a reference made by two member Bench of the Supreme Court where persons, who were made claimants under Section 163-A were barred from making a case under Section 166 of the Motor Vehicles Act. The issue, therefore, was whether the relief under Section 163 is supplementary to the relief under Section 163-A or not. If the claim is made under Section 163-A, it shall not be possible for a person to duplicate a clam under Section 166 as well. The point of reference was, therefore, only with reference to the interplay of Section 166 and 163-A and whether a claim made independently under Section 166 could be made after a consideration of claim under Section 163-A. In such a context, the Court held that even situations where the victim was himself responsible, there was still a scope for claiming compensation. A person being contributory to the accident is not the same as one who is a principal tort feasor. I am not examining a situation of whether negligence is to be established or not. I am considering the situation of whether a person, who suffers a fatal injury by his own conduct, leaves a trail of claim for a representative to pursue. It all depends on the nature of claim and the person against whom the claim is sought. In this case, if the motor cycle had been borrowed by a person and he suffers an accident, he will have rightful claim if there is any principle of compensation available for a workman against his master. The owner of vehicle does not become a master of the person only by the fact that the person, who borrows the vehicle for his use comes by fatal injury. Again the concept of vicarious liability is seen only as an issue of liability and not an issue of entitlement.