Allowed¶20

Oriental Insurance Co. Ltd. Thru Divl. Manager v. Smt. Nattho Devi and Another

Allahabad HC23 Jan 2020FAFO/3879/2017

Case brief

AI extract

What is this about?

Section 140 Motor Vehicles Act no fault liability; owner-driver not entitled to Section 140 claim; liability cannot be fastened on insurer without fixing liability on vehicle; pillion rider death; unknown bus driver; legal representative though not dependent entitled under Section 140 (Manjuri Bera, (2007) 10 SCC 643); mother of deceased as claimant; MACP No. 209 of 2013 Bareilly; Oriental Insurance Co. appeal allowed; award dated 11.8.2017 set aside; Vivek Agarwal, J.; 23.1.2020.

What did the court decide?

Appeal allowed; impugned award dated 11.8.2017 passed by the Motor Accident Claims Tribunal / Additional District Judge, Court No. 2, Bareilly set aside. ¶20

Oriental Insurance Co. Ltd. Thru Divl. Manager Vs… — Motor Accident Claims | Allahabad HC (2020)

What the court decided

AI extract

Outcome

Appeal allowed; impugned award dated 11.8.2017 passed by the Motor Accident Claims Tribunal / Additional District Judge, Court No. 2, Bareilly set aside.

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Issue for consideration

Whether the Insurance Company with which the motorcycle (on which the deceased was travelling as pillion rider) was insured is liable to compensate Respondent no. 2, the owner-driver of the motorcycle, under Section 140 no-fault liability when there is no fault of the owner-driver. +1 more

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Court's answer

An owner-driver is not entitled to claim under Section 140 of the Motor Vehicles Act; the no-fault liability under that section cannot be fastened on the insurers of the motorcycle without there being fixing of liability on such motorcycle or motor vehicle/owner-driver.

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Ratio / Principle

Relying on Manjuri Bera (2007) 10 SCC 643, a legal representative though not dependent is entitled to compensation under 'no fault liability' under Section 140; the Tribunal erred in denying the claimant (mother) on the ground that she did not fall within the definition of dependent, and arbitrarily overlooked that precedent.

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Key takeaways

The Claims Tribunal arbitrarily awarded Section 140 compensation in favour of Respondent no. 2 (husband/owner-driver), who was otherwise not entitled to it; since the claimant is not before this Court, sustaining the award would perpetuate illegality, so the appeal is allowed and the impugned award is set aside.ratio¶20

Detailed headnote1 paragraphs

Insurance company's First Appeal From Order against the award dated 11.8.2017 of the Motor Accident Claims Tribunal / Additional District Judge, Court No. 2, Bareilly in MACP No. 209 of 2013, whereby the claim petition of the mother of the deceased was rejected (she not being a legal heir, the husband being alive) but Rs. 50,000 was awarded under Section 140 MV Act ('no fault liability') in favour of Respondent no. 2 - the husband, owner-cum-driver of the motorcycle on which his wife Poonam was a pillion rider when she died in the accident of 24.11.2012 involving an unknown bus. Held: (i) an owner-driver is not entitled to claim under Section 140; no-fault liability cannot be fastened on the insurer without fixing liability on the vehicle/owner-driver, particularly where the offending bus was unknown and no wrong by the motorcycle was found; (ii) following Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643, a legal representative though not dependent is entitled to Section 140 compensation - the Tribunal erred in denying the mother on the ground of non-dependency and arbitrarily overlooked that precedent; as the claimant is not before the Court, sustaining the award would perpetuate illegality. Appeal allowed; impugned award set aside. (Vivek Agarwal, J.; Order Date 23.1.2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 3879 of 2017

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Appellant :- Oriental Insurance Co. Ltd. Thru Divl. Manager Respondent :- Smt. Nattho Devi And Another Counsel for Appellant :- Navaneet Chandra Tripathi

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Hon'ble Vivek Agarwal,J.

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Heard Sri Navaneet Chandra Tripathi, learned counsel for the appellant.

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This appeal has been filed by the Insurance Company being aggrieved by award dated 11.8.2017 passed by the Court of Motor Accident Claims Tribunal / Additional District Judge, Court No. 2, Bareilly in MACP No. 209 of 2013 (Smt. Nattho Devi Vs. Oriental Insurance Company Ltd and another) whereby while rejecting the claim petition filed by the mother of the deceased on the ground that she is not one of the legal heirs of the deceased as husband of the deceased is available and alive, awarded a sum of Rs. 50,000/- under the provisions of Section 140 of Motor Vehicles Act dealing with 'no fault liability', in favour of the Respondent no. 2, husband of the deceased and owner cum driver of the Vehicle on which deceased was a pillion rider.

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Sri Tripathi submits that as per information available with him, no claim petition has been filed by respondent no. 2 namely Trivendra Patel alias Trivendra Singh, S/o Late Gulzari lal i.e. husband of the deceased. Sri Tripathi further submits that once a finding has been recorded by the learned Claims Tribunal to the effect that deceased was travelling on motorcycle driven by Respondent no. 2, Trivendra Patel alias Trivendra Singh, who is also an owner of said motorcycle and as such owner-driver of the motorcycle was not a third party in relation to the Insurance Company. Therefore, Trivendra Patel was not entitled to receive any claim under the policy. It erred in allowing the claim under section 140 of Motor Vehicles Act in favour of Respondent no. 2 namely Trivendra Patel. Therefore, he prays for setting aside the award and allowing the appeal.

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After going through the award, material available on record and the arguments advanced by the counsel for the Insurance Company, certain facts are crystal clear.

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Accident took place on 24.11.2012 when deceased Poonam was travelling as pillion rider with her husband (Respondent no. 2) on his motorcycle No. UP 25-AS-1083. When they were close

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to Honda Factory, at that time, accident took place in which Poonam sustained injuries and she died. This issue has been decided in favour of the claimant. It has also been held that on the date of accident owner-driver of the motorcycle was having a valid driving licence and vehicle was insured with Insurance Company (Respondent no.1). However, it has also come on record that a report was lodged against an unknown Bus driver. Thus issue is that whether Insurance Company, with which motorcycle on which deceased was travelling, is liable to compensate to Respondent no. 2, owner-driver of the motorcycle without there being any fault of the owner-driver of the motorcycle.

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It is settled law that Insurance Company indemnifies the wrong of owner-driver of the offending vehicle. It is also settled that owner-driver can claim compensation for injuries to self if the premium for personal accident is included in that policy. However, owner-driver is not entitled to the claim under the provisions of Section 140 of the Motor Vehicles Act, which provides for liability to pay compensation without fault in certain cases could not be fasten on the Insurers of the motorcycle without there being fixing of the liability on such motorcycle or motor vehicles.

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Section 140 of the Motor Vehicles Act reads as under :

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Liability to pay compensation in certain cases on the principle of no fault.—

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(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

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(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees].

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(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

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(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:

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Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]

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A combined reading of the provisions clearly provides that compensation under section 140 is payable by the owner of the Vehicle in respect of death or disablement in accordance with the provisions of this section. Sub section 3 provides that no liability is fasten on the claimant to plead and establish that the death or permanent disablement in respect to the claimant has been made was due to any wrongful act including the fault of the owner or owner of the vehicle or vehicle concerned or by any other person. Sub section 4 provide that compensation under this section cannot be reduced on the ground of contributory negligence. Thus it is clear that when owner of the Bus is not known, registration of the Bus is unknown then in such facts and circumstance as pillion rider, the deceased, was since travelling with her husband, and there is no finding of fact that the motorcycle on which deceased was travelling committed any wrong, amount of compensation even under section 140 of the Motor Vehicles Act could not have been awarded. Therefore, the appeal needs to be allowed and is allowed. It is held that Tribunal erred in holding that claimant being mother of married daughter will since not fall within the definition of dependent on the deceased, was not entitled to compensation. In fact, in the light of the law laid down in case of Manjuri Bera Vs. Oriental Insurance Company Ltd and another as reported in 2007 (10) SCC 643, section 140 provides that a legal representative though not dependent is entitled to compensation under 'no fault liability' under section 140 of the Motor Vehicles Act. The Tribunal has arbitrarily overlooked this fact without referring to the law laid down in case of Manjuri Bera (Supra). However, claimant is not before this Court. Therefore, seal of approval cannot be granted to the impugned award as sustaining such award would amount to

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perpetuating illegality. Therefore, appellants have made out a case for interference in asmuch as learned Claims Tribunal has arbitrarily awarded compensation in favour of Respondent no. 2, who is otherwise not entitled to such compensation. The appeal deserves to be allowed and is allowed. The impugned award is set aside.

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Order Date :- 23.1.2020 S.K.S.

Oriental Insurance Co. Ltd. Thru Divl. Manager v. Smt. Nattho Devi and Another

Case brief

What is this about?

What did the court decide?

Oriental Insurance Co. Ltd. Thru Divl. Manager v. Smt. Nattho Devi and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

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