IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 49 of 2009 Reserved on: 30.6.2011. Date of decision : 4.7.2011. New India Insurance Co. Ltd.. …Appellant. Versus Smt. Sarita Devi and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Ratish Sharma, Advocate. For the respondents No. 1 to 6: Mr. Suneet Goel, Advocate. For the respondent No.9: Mr. Lalit Sharma, Advocate. Deepak Gupta, J. 1. The question which arises for decision in this case is whether the legal representatives of a person, who is himself guilty of rash and negligent driving, can claim compensation under Section 163-A of the Motor Vehicles Act, 1988, which reads as follows:- “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 or the authorised insurer shall be liable to pay in the case of death or permanent disablement 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 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. Explanation.—For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (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. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 2. A Division Bench of this Court in Smt. Kokla Devi vs. Chet Ram and another 2002(1) Shim. L.C. 204 held that a petition under Section 163-A is maintainable by the dependents of the deceased person, who himself is responsible for causing the accident resulting in his death. The validity of this decision was referred to a larger Bench and a Division Bench of this Court in Sohan Singh and another vs. National Insurance Company IV (2009) ACC 163 relying upon the judgement of the Apex Court in Oriental 3 Insurance Co. Ltd. vs. Rajni Devi (2008) 5 SCC 736 held that since one of the claimants was the owner of the vehicle and the deceased himself was responsible for causing the accident, the Insurance Company was not responsible. 3. On behalf of the claimants, it is contended that this judgement is not applicable to the facts of the case because in the present case neither the deceased nor the claimants were the owners of the vehicles. 4. Briefly stated the facts of the case are that a collision took place between two vehicles i.e. Scooter No. HP-31-3221 and Car No. HP-32-1407. Bablu was driving the scooter and Umesh Kumar was pillion rider in the scooter. Umesh Kumar filed a claim petition and in this claim petition the Tribunal held that the accident had occurred due to the rash and negligent driving of Bablu and held the owner and Insurance Company of the scooter liable to pay the compensation. This petition was decided on 4.1.2008. The present appeal arises out of the claim petition filed by the legal heirs of Bablu. In this petition it was alleged that the car overtook the scooter and then all of a sudden applied brakes without giving any signal and as a result the scooter struck with the rear of 4 the car. On the basis of no fault liability under Section 163-A claimants claimed compensation. The award passed in the earlier petition filed by Umesh Kumar was exhibited as Ext.DA in this petition. The learned Motor Accident Claims Tribunal did not give any finding on the issue of negligence but held that in a claim petition filed under Section 163-A only factum of death is to be proved and the rash and negligent act is not required to be proved. Thereafter, he went on to calculate the compensation and assessed at Rs.4,43,900/-. The learned MACT thereafter noticed the earlier award and in order to avoid conflicting award he also passed an award against the owner and insurer of the scooter alone. This award on the face of it is totally incorrect. In case the deceased himself was negligent then no award could have been passed under Section 163-A. In case, it was a case of composite negligence then the owner, driver and Insurance Company of the car should have been held liable. 5. It would be pertinent to refer to a judgement of the Division Bench of the Karnataka High Court in Appaji (since deceased) and another vs. M.Krishna and another 2004 ACJ 1289 in 5 which T.S.Thakur, J. speaking for the Bench has very succinctly laid down the following principles. “16. It is evident from the above that Section 163-A was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The recommendations of the Law Commission were concerned more with the victims of hit-and-run accident cases where the particulars of offenders could not be ascertained. It also expressed concern about the security of victims of road accidents and recommended dispensing with proof of fault on the part of the owner or driver of the vehicle. The recommendations, it is clear, were made from the point of view of victim of accidents on the roads more than those who are responsible for the same. The Review Committee too had viewed the situation from the point of view of such victims and expressed concern about the time it took for disposal of ordinary cases before the Tribunals. The objects and reasons underlying the introduction of the provision also envisaged adequate compensation to victims of road accidents without going into what was described as long-drawn procedure. The decision of the Apex Court in Kodala’s case, 2001 ACJ 827 (SC) elucidated the purpose underlying the introduction of section 163-A in the light of the recommendations of the Law Commission and the Review Committee. There is nothing in any one of the above to suggest that section 163-A was intended to be available even in a situation where the accident in question had caused death or physical injury to none except the person who was rash and negligent in using the 6 motor vehicle. The universal concern was for the safety and the social security of an innocent user of the road and not for a person who had because of his own imprudence, rashness or negligence met with an accident and suffered an injury or death. 17. It is truism to say that legislative history of a provision including the aims and objects which the bill sets out before the legislature are only aids for interpretation of the provision eventually enacted for enforcement. A statutory provision cannot be understood or interpreted only on the touchstone of its historical background or aids like the subject heading or the aims and objects stated in the bill preceding the legislation. While the object of any exercise aimed at interpreting a statute is to ascertain the intention of the legislature enacting it, the golden rule among numerous other rules of interpretation that have been judicially evolved is that the intention of the legislature is to be primarily gathered from the language used in the provision. A statute is an edict of the legislature and the language employed in the same is the determinative factor for understanding the true legislative intent. “Statutes should be construed not as theorems of Euclid” said learned Judge Hand, “but words must be construed with some imagination of the purposes which lie behind them”. [See Lenigh Valley Coal Co. vs Yensavage, 218 FR 547; Union of India v. Eilip Tiago De Gama of Vedem Casco De Gama, AIR 1990 SC 981; Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74 and Shiv Shakti Co-op. Housing Society v. Swaraj Developers, 2003 AIR SCW 2445]. 18. Let us then turn to section 163-A of the Motor Vehicles Act. It envisages payment of compensation for death or permanent disablement due to an accident arising out of the use of motor vehicle to the 7 victim or his legal heirs as the case may be. The term ‘victim’ has not been defined in the Act. The literal meaning of the word as given in Chambers 20th Century Dictionary is: “a living being offered as a sacrifice; one subjected to death, suffering or ill- treatment; a prey; a sufferer”. Black’s Law Dictionary explains the term thus: “The person who is the object of a crime or tort, as the victim of a robbery is the person robbed”. Person whom court determines has suffered pecuniary damages as a result of defendant’s criminal activities; that person may be individual, public or private corporation, government, partnership, or unincorporated association. 19. The right to receive compensation under section 163-A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitle a person who is neither a victim nor his/her legal heir to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke section 163-A for making a claim. The concern of the legislature and the jurists is understandably for the victim in contradistinction to the victimiser or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunken driving, speeding in what are high performance new generation of automobiles including two-wheelers are accounting for a large number of accidents every day. Quite often these accidents kill or wound even the person who is driving the vehicle. Parliament did not in our opinion intend to provide for compensation to the person responsible for the 8 accident on structured formula basis in such cases. Neither the provisions of section 163-A nor the background in which the same were introduced disclose any such intention. The argument that section 163-A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected.” 6. The judgement given by a Division Bench of this Court in Kokla Devi’s case (supra) was dissented from. The matter did not end here. The Apex Court has settled this dispute also in Ningamma and another vs. United India Insurance Company (2009) 13 SCC 710. The Apex Court was dealing with a case where the deceased who was driving a motorcycle which was borrowed from its real owner met with an accident and hit against a cart. A petition was filed under Section 163-A by the legal representatives of the deceased. The apex Court held that petition under Section 163-A would not be maintainable. The Apex Court after discussing the entire law on the subject following the judgement in Rajni Devi’s case (supra) held as follows:- “21. In our considered opinion, the ratio of the decision in Oriental Insurance Co. Ltd. (2008) 5 SCC 736 case is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He 9 borrowed the said motorbike from its real owner. The deceased cannot be held to be an employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner and therefore, he could step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal fo the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. 22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA. 23. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.” 7. Thereafter, the Apex Court went on to hold that even if the petition is not maintainable under 10 Section 163-A the Tribunal was duty bound to consider the claim under Section 166 of the Motor Vehicles Act. In the present case, the claimants have led no evidence on the issue of negligence and there is nothing to show that the driver of the car was negligent in any manner. The negligence was of the scooter driver Bablu alone who unfortunately died in the accident and therefore, his heirs cannot claim compensation in view of the judgement of the Apex Court referred to above. Accordingly, the appeal filed by the Insurance Company is allowed and the award of the learned Tribunal is set-aside. No costs. 4th July, 2011 ( Deepak Gupta ) ™ Judge.