IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 321 of 2008 Date of Decision : April 02, 2009 National Insurance Company Ltd. Appellant. Versus Smt. Shakuntla Verma wife of Shri Mohan Lal Verma and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ashwani K. Sharma, Advocate, for the appellant. For the respondents : Mr. Romesh Verma, Advocate for respondents No. 1 and 2. None for respondent No. 3. Sanjay Karol, J. (Oral) In the present appeal the insurer namely the National Insurance Company Limited, has assailed the impugned award dated 29.02.2008 passed by the Motor Accident Claims Tribunal (Fast Track Court), Solan, H.P. in petition No. 6FTC/2 of 2007/2005, titled Smt. Shakuntla Verma and another versus Shri Sandeep Verma and another, awarding compensation of Rs. 4,89,000/- alongwith interest at the rate of 7.5% from the date of the filing of the petition up to the date of deposit. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Brief facts giving rise to the filing of the present petition are that on 12.12.2004 while giving pass to a private bus coming from Dharampur vehicle No. CH-02-1816 being driven by Shri Pardeep Kumar Verma, met with an accident near Panch Parmeshwar Mandir, Deonghat, H.P. The vehicle was owned by his brother Shri. Sandeep Verma and was insured with the present appellant. In the said accident Shri Pardeep Kumar sustained injuries and died due to the same. He was 22 years of age and was studying in the final year of B.A. and was privately engaged in construction work as he was registered as a Government Contractor with the department of P.W.D. Government of Himachal Pradesh. The parents of the deceased filed a petition under Section 163-A of the Motor Vehicles Act claiming compensation. The owner took the only defence that the vehicle being insured, the liability was that of the insurer. The insurer opposed the petition on the ground that the accident occurred due to the rash and negligent acts of the deceased who in any event was not holding a valid and effective driving licence at the time of the accident. Based on the pleadings of the parties the Tribunal framed the following issues: “1. Whether the death of Pradeep Kumar has arisen out of the use of motor vehicle driven by deceased himself? …OPP 3 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? ….OPP 3. Whether the petition is not maintainable as alleged? ...OPR-2 4. Whether the deceased did not have a valid and effective driving licence to drive the vehicle? …. OPR-2 5. Whether the vehicle was being driven against the terms and conditions of the standard insurance policy? …OPR-2. 6. Relief.” To prove their case the parties led their evidence. Appreciating the material on record (oral & documentary), the Tribunal came to the conclusion that the deceased Shri Pardeep Kumar had died in an accident which took place on 12.12.2004. Same stood proved through the oral testimony of Smt. Shakuntla Verma (PW-3) and also the documentary evidence FIR (Ext.PW1/A), post-mortem report (Ext.PW2/A) and death certificate (Ext. PB). While determining the maintainability of the petition the Tribunal referred to the decisions rendered by this Court in Sudhir Mahajan versus United India Insurance Company Ltd. and another, 2007 (2) Shim. L.C. 305, and Sukhwant Kaur and others versus Sher Singh and another, Latest HLJ 2004 (HP) 1264. The Tribunal held that a petition under Section 163-A of the Motor Vehicles Act could be filed even by the wrong doer. Based on the structural formula the Tribunal awarded compensation of Rs. 4,89,000/-. 4 The deceased was held to have possessed a valid and effective driving licence at the time of the accident. Mr. Ashwani Kumar Sharma, learned counsel for the appellant has assailed the impugned award for the reason that the petition under Section 163-A of the Motor vehicle Act filed by the parents of the deceased was not maintainable, as the deceased himself had been negligent in driving the vehicle. Mr. Romesh Verma, learned counsel however, has supported the decision for the reasons set out therein. In my view the question is no longer res-integra. A Division Bench of this Court in Kokla Devi versus Chet Ram and another (2002) ACJ 650, (paragraphs 33, 34 and 39) has clearly held that the non obstante clause contained in Section 163-A of the Motor Vehicle Act would have an overriding effect on all the other provisions of the existing law, including the Motor Vehicles Act. Section 163-A of the Act takes care of those situations where compensation is claimed by legal representatives of the deceased involved in the accident. It makes owner of the vehicle or the authorised insurer liable to pay in case of death or permanent disability due to the accident arising out of the use of motor vehicle as indicated in the Second Schedule. A Single Bench of this Court in FAO (MVA) No. 410 of 2002, titled as Sukhwant Kaur and others versus Sher Singh and others on 9.8.2004, however, took a different view and held that a claim 5 petition under Section 163 of the Act could not be held to be maintainable even if the claimants suffered loss on account of the death of the person who himself was responsible for causing his own death in the accident by driving the vehicle in a negligent manner. It is a matter of record that this decision was recalled in a Review Petition and the matter was referred to a larger Bench. In the meanwhile the learned Single Judge of this Court in Sudhir Mahajan (supra) by relying upon the earlier decision of the Apex Court in Deepal Girishbhai Soni and others versus United India Insurance Company Ltd., (2004) 5 SCC 385 and Kokla Devi (supra) came to the conclusion that Section 163-A of the Motor Vehicles Act would cover cases even where negligence is on the part of the victim. Hence petition filed by the claimant who himself may have been negligent was held to be totally maintainable. In Deepal Girishbhai (supra) the Court held that Section 163-A of the Act covers cases where even negligence is on the part of the victim. Keeping in view the aforesaid decision and the ratio of law laid down therein, I am of the considered view that the claim petition is absolutely maintainable. Claimants, being the parents of the deceased were fully entitled to have filed the present petition claiming compensation under Section 163-A of the Act, even if the deceased had been negligent in driving the vehicle. 6 While determining compensation the Tribunal has awarded compensation on the basis of the structural formula as contained in the Second Schedule of the Motor Vehicles Act. There is no serious contest to the same. For the aforesaid reasons the present appeal is dismissed. (Sanjay Karol), Judge. April 02, 2009 (PK)