NATIONAL INSURANCE COMPANY LIMITED Vs. NIM TSHERING SHERPA

JUDGEMENT

(1.) On 18/9/2011, a Maruti Suzuki, Taxi vehicle, driven by one Bikash Pradhan in which Phurba Sherpa, the father of the Respondent No.1 was travelling with other occupants was hit by boulders, that rolled down the hillside, after being activated by the occurrence of an earthquake at that time. Consequently, the vehicle careened off the road into the river, flowing below, in which all the occupants, except one Nim Lhamu Sherpa, were swept away by the river. The body of one Wangdi Sherpa was recovered by the riverside near Singtam. Eleven years have passed since the date of the accident and as the bodies remained unrecovered it is presumed that they all perished in the accident. The Respondent No.1, the son of the deceased filed a Claim Petition under Sec. 166 of the Motor Vehicles Act, 1988 (hereinafter the 'MV Act') before the Learned Motor Accidents Claims Tribunal, at Gangtok, Sikkim (hereinafter, the 'MACT'). The cause of the accident was stated to be the vehicle driven at high speed as a consequence of which the driver could not control it when the earthquake occurred. The vehicle was thus hit by the rolling boulders. Respondent No.2 the owner of the vehicle contested the Claim Petition on grounds that the vehicle was properly maintained and mechanically fit to be in service at the time of the accident, when it was being driven by a qualified driver, with a valid and effective driving licence. The insurance policy and all other documents of the vehicle were also valid and effective. The Appellant Insurance Company, contested the claim and denied its liability to make good the compensation on grounds that, rash and negligent driving had not been proved nor was there a death certificate from the concerned authority to establish the death of the deceased in the accident.

(2.) Before this Court, Learned Counsel for the Appellant submits that the accident was the result of vis major and beyond human control as it is the Claimant's case itself, that, the ill-fated vehicle fell into the river, having been hit by boulders falling from the hill, due to the earthquake, which crushed the vehicle. Besides, the Claimant failed to establish the rash and negligent act of the driver. Thus, the Appellant is not liable to pay the compensation claimed. That, the Respondent No.1 in fact ought to have filed a Claim Petition under Sec. 163A of the MV Act and not under Sec. 166 of the MV Act. That, as the finding of the Learned MACT is not in terms of the law, the impugned Judgment deserves a dismissal.

(3.) Refuting these arguments, it was contended by Learned Counsel for the Respondent No.1, that in the first instance, the Appeal is not maintainable as no steps were taken by the Appellant under Sec. 170 of the MV Act, before the MACT to enable it to assail the Judgment of the MACT on all grounds as raised herein. In the absence of an Order under Sec. 170 of the Act, the Appeal is to be confined to the statutory defences as provided under Sec. 149(2) of the MV Act. To fortify this submission reliance was placed on Shankarayya and Another vs.United India Insurance Co. Ltd. and Another (1998) 3 SCC 140, National Insurance Co. Ltd., Chandigarh vs. Nicolletta Rohtagi and Others (2002) 7 SCC 456, Rekha Jain and Another vs. National Insurance Company Limited (2013) 12 SCC 202 and United India Insurance Co. Ltd. vs. Chandi Rai and Another AIR 2006 Sikk 11.