1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T ORIENTAL INSURANCE CO. Vs. SMT. SUSHILA DEVI & LIMITED, JODHPUR & ORS. S.B. CIVIL MISC. APPEAL NO. 647 OF 2006 against the judgment and Award dated 02.12.2005 passed by the learned Judge, Motor Accident Claims Tribunal, Jodhpur in Claim Case No.146/05 (137/03). DATE OF JUDGMENT :: 14Th MARCH, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Jagdish Vyas, for the appellant. Mr. Rajesh Panwar ] for respondents No.1 to 5 Mr. S.K. Sankhla ] BY THE COURT : The instant appeal has been preferred by the appellant-Insurance Company against the judgment and Award dated 02.12.2005 passed by the Judge, Motor Accident Claims Tribunal, Jodhpur in Claim Case No.146/05 (137/03) whereby the learned Tribunal has awarded compensation to the tune of 2. Rs.3,93,500/- in favour of the claimants and held the Insurance Company responsible to pay the entire amount of compensation. Briefly stated the facts of the case are that on 15.1.2003 in the night at about 11.00 p.m. deceased-Banwari Lal was going from Sikar to Raidhana on his motor-cycle No.RJ- 21-4M-1077 and when he reached near the outskirts of 'Nechwa', his motor-cycle dashed with a 'khejadi' tree, as a result of which he sustained injuries and succumbed to the injuries. A claim petition under Section 163-A of the M.V. Act was filed by his legal representatives comprising of his wife, minor children and mother before the learned Motor Accident Claims Tribunal, Jodhpur against the registered owner (respondent No.1) and the insurer (respondent No.2) of motor-cycle and a total amount of Rs.4,36,167/- was claimed on different heads. After issuance of notice of claim petition, the registered owner (respondent No.1) appeared through his counsel and submitted his reply and admitted the averments made in the claim petition to be correct. 3. The Insurance Company (respondent No.2) also submitted its reply and admitted the factum of the motor-cycle being insured with them, however, at the same time denied the averments made in the claim petition and stated that the accident occurred because of the own negligence of Banwari Lal. Further, it took the stand that the driver of vehicle was not having a valid and effective driving licence. It was furthermore stated that since Banwari Lal met with the accident on account of his own rash and negligent driving, therefore, under the provisions of Section 163-A of the M.V. Act, the legal heirs of the deceased were not entitled to get any sort of compensation and the Insurance Company cannot be made liable to pay the compensation. At last it was was prayed that the claim petition itself be dismissed. On the basis of pleadings of parties, the learned Tribunal framed relevant issues. During trial, statement of claimant-Smt. Sushila was recorded as AW-1 and certain documents were got exhibited. No evidence were led in defence. 4. The learned Tribunal at the conclusion of trial held that the accident occurred and in that, the vehicle driven by its driver was involved resulting in death of Banwari Lal, thus, the claimants were entitled to receive compensation under Section 163-A of M.V. Act and vide its judgment and Award dated 01.12.2005 awarded a sum of Rs.3,93,500/- as compensation in favour of the claimants plus interest @ 7.5% per annum from the date of filing of claim petition i.e. 26.3.2003 till the date of realization against the registered owner and the Insurance Company of the motor-cycle. Further a direction was given to the appellant to make the payment to the claimants. Hence, aggrieved and dissatisfied with the findings of the learned Tribunal, this appeal has been preferred by the Insurance Company. During the course of arguments, it was mainly contended that in this case the deceased himself was driving the motor-cycle and because of his own rash and negligence, the accident had taken place, therefore, the claimants are not entitled to get any sort of compensation for the negligence of the victim under Section 163-A of the M.V. Act, but the learned Tribunal has not considered this important aspect of the matter in its right 5. perspective and awarded compensation and made the appellant responsible for the same, as such, it was urged that the judgment and Award be quashed and set aside and the appeal may be allowed. On the contrary learned counsel for the respondents submitted that the claimants have filed application specifically under Section 163-A of the M.V. Act and looking to the scope of that petition, the negligence of the driver was not to be seen even if the vehicle was being driven by the deceased himself. The learned Tribunal was to satisfy that the victim died/ sustained permanent injuries out of the use of motor vehicle, then the concerned person may be the driver of vehicle, the claimants were entitled to get compensation. In support of his contention, the learned counsel for the respondents placed reliance on the decisions given by this Court in the cases of : [1] United India Insurance Co. Ltd. Vs. Smt. Rekha & Ors (AIR 2007 NOC 1548 (Raj.) and [2] United India Insurance Company Ltd. Vs. Smt. Shyam Kanwar & Ors. (2004 R.A.R. 572 (Raj.). The learned counsel for the respondents also relied upon decision given by Division Bench of Punjab & Haryana High Court in the case of New India Assurance Company Ltd. Vs. Shyamo Chauhan & Ors. 6. 1 (2005) ACC 856 (DB) and again stressed that the grounds taken in appeal are not tenable and the appeal is liable to be dismissed. I have considered the rival contention of both the sides and have thoroughly gone through the record of the case, arguments as well as the authorities cited by the learned counsel for the respondents. From the perusal of record, it seems that the victim was himself driving the motor-cycle No.RJ/21-4M-1077 and whilst driving, the motor-cycle slipped as a result of which, the victim dashed with 'khejadi' tree and sustained injuries and later on succumbed to the injuries received by him, that is corroborated by the medical evidence and the post-mortem report etc. His legal representatives have filed claim petition for awarding of compensation under Section 163-A of M.V. Act. Taking into consideration the legal position as laid down in the Section, the negligence on the part of the victim was not to be seen and the claim petition was very much maintainable. The learned Tribunal after considering the age and income of deceased and taking into 7. consideration that the incident had taken place out of the use of vehicle wherein the driver of vehicle has died, has rightly after considering the facts and circumstances of the case and the taking into mind the guidelines set out in the Schedule, has reasonably awarded just compensation of Rs.3,93,500/-. The contention of the learned counsel for the appellant-Insurance Company that as the deceased himself was driving the vehicle and has met with an accident, therefore, he is not covered under Section 163-A but this contention is not tenable under Section 163-A of M.V. Act such exceptional position is not provided. Similar type of controversy was raised before this Court in the case of United India Vs. Smt. Rekha (supra) and United India Vs. Smt. Shyam Kanwar (supra) and in those cases, it was held that the claim petition is tenable and in those cases compensation was awarded on account of accident having been caused by the drivers of the concerned vehicles. Same type of controversy was dealt with by the Hon`ble Division Bench of Punjab & Haryana High Court in the case of New India Vs. Shyamu Chouhan (supra), the relevant observation is quoted as under :- 8. “4.......................................... Thus, from a perusal of the provisions of Section 163-A of the Act, it would be clear that the owner and the Insurance Company would be liable to pay the compensation amount to the legal heirs of the deceased in the case of death where the accident had taken place “arising out of the use of motor vehicle.”. Even if the deceased was the driver of the motor vehicle in question, still the owner and the Insurance Company of the said motor vehicle would be liable to pay compensation to the legal heirs of the deceased under the “no fault liability” under Section 163-A of the Act. In this view of the matter, the learned Tribunal was perfectly justified in holding the owner and the Insurance Company liable to pay the compensation amount to the claimants.” Thus, on the basis of the aforesaid discussion, the judgment and Award passed by the learned Tribunal is affirmed. The appeal deserves to be dismissed and is hereby dismissed. There shall be no order as to costs. ( MANAK MOHTA ), J. Sanjay/- 9.