THE BRANCH MANAGER, UNITED INSURANCE CO. LTD., DEORALI BAZAR, N.H. 31A, GANGTOK, EAST SIKKIM Vs. MS. LILY ONGMU LEPCHA, D/O LATE LODEN TSHERING LEPCHA, R/O UPPER BURTUK, P.O. & P.S. GANGTOK, EAST SIKKIM

JUDGEMENT

(1.) The Motor Accidents Claims Tribunal, East Sikkim, at Gangtok (for short the Claims Tribunal ), in MACT Case No.15 of 2015, vide its impugned Judgment and Award dated 31-12-2015, directed the Appellant/Insurer herein, to pay an amount of Rs. 21,75,000.00 (Rupees twenty one lakhs and seventy five thousand) only, with an interest @ 10% per annum, from the date of filing of the Claim Petition, till its full realisation to the Claimant/Respondent.

(2.) Dissatisfied with the said impugned Judgment and Award, the instant Appeal has been preferred. Reiterating the averments in the pleadings, Learned Counsel for the Appellant in his opening arguments, contended that in a Petition under Sec. 166 of the Motor Vehicles Act, 1988 (for short the Act ), the entire responsibility lies with the Respondent to prove the factum of rash and negligent driving on the part of the driver of the vehicle in accident and in the instant case the Petition is not maintainable as the deceased himself was driving the vehicle and no other vehicle was involved in the accident. That, the accident was entirely the outcome of the rash and negligent driving of the deceased which led to his death, resulting in registration of a case under Sections 279 and 304A of the Indian Penal Code, 1860 (for short the Penal Code ) against him, therefore, the Claimant is not entitled to the compensation. On this count, he drew support from the ratiocination of Oriental Insurance Co. Ltd. Vs. Jhuma Saha (Smt) and Others : (2007) 9 SCC 263 , Oriental Insurance Co. Ltd. Vs. Meena Variyal and Others : (2007) 5 SCC 428 and Tamil Nadu State Transport Corporation, Tanjore Rep. by its MD Vs. Natarajan and Others : (2003) 6 SCC 137 . That, the Respondent in fact ought to have filed a Claim under Sec. 163A of the Act, under which the Respondent is not required to establish negligence or fault on the part of the owner or the driver of the vehicle. It was also averred that, the Learned Claims Tribunal erred in deducting ⅓rd instead of 1/2 as living expenses, as the deceased was a bachelor and, therefore, failed to comply with the decision of the Honourable Apex Court in Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another : (2009) 6 SCC 121 and Munna Lal Jain and Another Vs. Vipin Kumar Sharma and Others : (2015) 6 SCC 347 . Hence, the impugned Judgment and Award deserves to be set aside.

(3.) Per contra, resisting the stance of the Appellant, Learned Counsel for the Respondent urged that there is no error in the finding of the Learned Claims Tribunal which is apparent on glancing through Exhibit 7, the Insurance Policy of the vehicle in accident which grants coverage to the deceased. According to him, the Policy is a Private Car Package Policy and the limits of liability have been clearly laid out therein. The requirement for a person to drive the vehicle under the Policy is that he must hold an effective Driving Licence at the time of the accident and should not be disqualified from holding or obtaining such a Licence. The deceased was holding a Driving Licence, Exhibit 4, which has not been disproved by the Appellant neither was he disqualified from holding it, hence, none of the provisions of the Insurance Policy have been violated. That, a First Information Report (FIR), Exhibit 3, had been lodged in connection with the accident before the Rangli Rangliot Police Station, Darjeeling, West Bengal, which was duly registered under Sec. 279/304A/427 of the IPC, prima facie, pointing to rash and negligent driving on the part of the deceased. All the occupants of the vehicle succumbed to injuries due to the accident and the sole eye-witness P.W.4 has supported the fact that the vehicle was speeding downhill indicating rashness and negligence thereby establishing the requirement of Sec. 166 of the Act, hence, the Appeal be dismissed.