Allowed

Smt Chhepu Mahtain And Anr. v. Mahesh Mondal And Anr.

Jharkhand HC2 May 2022MA/542/2016

Case brief

AI extract

What is this about?

An appeal challenging the deduction of 50% compensation due to alleged contributory negligence. The High Court held that Section 163-A mandates no-fault liability and prohibits apportionment, setting aside the deduction and directing full payment with interest.

What did the court decide?

The direction to deduct 50% compensation was set aside. The Insurance Company directed to pay the entire assessed compensation of Rs. 4,36,500/- with 6% interest from the date of claim filing within e

Smt Chhepu Mahtain And Anr. Vs Mahesh Mondal And Anr. — Insurance | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 542 of 2016

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Smt. Chhepu Mahtain

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Mukhu Mahto..... Appellant(s)

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Versus

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Mahesh Mondal

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The Divisional Manager, National Insurance

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Co. Ltd., Dhanbad.... Respondent(s)

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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For the appellant(s): Mr. Sachi Nandan Das, Advocate. For the Insurance Co.: Mr. Pratyush Kumar, Advocate. For respondent No. 1: Mr. Shekhar Pd. Sinha, Advocate. ------

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09/02.05.2022:

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Heard the learned counsel for the parties.

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This appeal has been filed by the claimants challenging the findings arrived at paragraph 13 of the judgment dated 24.5.2016 passed in Title (M.V.) Suit No. 151 of 2012 by the District Judge-XV-cum-P.O.-MACT, Dhanbad, whereby 50% of the compensation amount has been deducted, as the Tribunal has held that the deceased had also contributed to the accident to the extent of 50%.

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Learned counsel for the claimants-appellants submits that the claim application was filed under Section 163-A and not under Section 166 of the Motor Vehicles Act, 1988 and that being so, the question of contributory negligence cannot be raised in this case. He submits that, in fact, there is no evidence which suggests that there was contributory negligence on the part of the deceased. By relying upon Sub-Section(2) of Section 163-A of the Motor Vehicle Act, 1988, he argues that the aspect of any wrongful act or negligence or default of the owner of the vehicle or the vehicle concerned or any other person cannot be looked into by the Tribunal while deciding an application, filed under Section 163-A of the Motor Vehicle Act, 1988. He further submits that the appellants are not challenging the calculation of the compensation amount, which was quantified as Rs.4,36,500/-, rather they are aggrieved by the finding arrived at in paragraph- 13 of the impugned judgment, by which, the Tribunal has held that since there was contributory negligence on the part of the deceased-driver, 50% of the amount of compensation has to be deducted.

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Learned counsel for the Insurance Company submits that there is specific finding arrived at by the Tribunal that there was contributory negligence on the part of the deceased to the extent of 50%, thus the amount has been correctly deducted.

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Considering the nature of the dispute, which is very limited, this appeal is being disposed of at this stage itself.

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Admittedly, the claim application was filed under Section 163-A of the Motor Vehicle Act, 1988. It is necessary to quote Section 163(A) (1) and (2), which read as under:-

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“163-A Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained 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 of 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, compensation, as indicated in the second Schedule, to the legal heirs or the victim, as the case may be.

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

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As per Section 163-A(1) of the Motor Vehicles Act, 1988, the Insurance Company is liable to pay compensation to the claimant(s), in case of death or permanent disablement due to accident arising out of use of Motor Vehicle, the amount of compensation as indicated in Second Schedule of the Act. Second Schedule is a structure formula basing on which, the amount of compensation is calculated. Sub-Section (2) of Section 163-A of the Motor Vehicles Act, 1988 provides that when a claim application is filed under SubSection (1) of Section 163-A of the Motor Vehicles Act, 1988, the claimants are not required to plead or establish the death or permanent disablement in respect of which the claim has been made due to the wrongful act or negligence or default of the owner of the vehicle or the vehicles concerned or any other person.

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In this case, the Tribunal has held that the accident had occurred due to negligence on the part of the driver of one of the vehicles whose heirs are the claimants herein. The Hon'ble Supreme Court of India in the case of United India Insurance Company Limited Vs. Sunil Kumar and Another , reported in (2014) 1 SCC 680 , after considering several judgments of the Hon'ble Supreme Court held that the liability to pay compensation under Section 163-A of the Motor Vehicles Act, 1988 is on the principle of no fault and therefore, who is at fault is immaterial and foreign to an enquiry under Section 163A of the M.V. Act, 1988. The Hon'ble Supreme Court has further held that the amount of compensation to be paid in terms of Section 163-A of the Motor Vehicles Act,

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1988 cannot be apportioned and the scope of enquiry as to whether there was contributory negligence or not is alien. It is necessary to quote para 13 of the aforesaid judgment, which reads as under;

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“13. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. The legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation.”

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Thus, in view of the settled principle of law, I find that the Tribunal could not have apportioned the amount of compensation and deducted 50% from the amount of compensation, which has been assessed. The scope to decide the contributory negligence has wrongly been applied by the Tribunal in the claim application, filed under Section 163A of the Motor Vehicles Act, 1988.

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In that view, the direction given in paragraph 13 of the impugned judgment dated 24.5.2016 passed in Title (M.V.) Suit No. 151 of 2012 by the District Judge-XV-cum-P.O.-MACT, Dhanbad, whereby 50% of the compensation amount has been deducted is set aside.

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The Insurance Company is directed to pay the entire compensation amount of Rs.4,36,500/-, assessed as compensation to the claimants. This entire amount of compensation of Rs. 4,36,500/- will carry 6% interest per annum from the date of filing of claim application till the same is paid. Any amount, which has already been paid should be deducted from the aforesaid amount. The amount should be paid within eight weeks.

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With the aforesaid observations and directions, this appeal stands allowed .

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Anu/-C.P.2

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(ANANDA SEN, J.)

Smt Chhepu Mahtain And Anr. v. Mahesh Mondal And Anr.

Case brief

What is this about?

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Smt Chhepu Mahtain And Anr. v. Mahesh Mondal And Anr.

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