Case: Chandrakanta Tiwari Vs. NEW INDIA ASSURANCE COMPANY LTD. &amp; ANR

otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1. 15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation. 7. So far as issues 3 and 4 are concerned, they read as follows: 3. Whether at the time of accident the deceased was not having a valid driving license? 4. Whether at the time of accident the OP No. 1 was not having a valid driving license? 8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments. 9. Finally, given that the deceased was aged 28 years and that income was not proved, income was taken to be Rs. 36,000/- per annum minus one-third, which made it Rs. 24,000/- per annum. The Multiplier was taken to be 8, keeping in view the old age of the claimant and accordingly, a sum of Rs. 1,92,000/- was arrived at. In addition thereto, Rs. 2,000/- was given as funeral expenses, Rs. 5,000/- as loss of consortium, making it a total of Rs. 1,99,000/- together with simple interest at the rate of 6 per cent per annum on this amount from the date of filing of the claim petition up to the date of actual payment. 10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also. 11. Section 163A reads as follows: 163A. 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 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 Workmens 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. 12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) 13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. 14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. 15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. 16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. It will be relevant to mention here that no controverting evidence on this issue or on issue No. 2 has been adduced by any of the opposite parties though they have made the pleadings otherwise in their written statement hence it has not been proved on record by any of the opposite parties that at the time of the accident, the deceased was driving the vehicle, it is also relevant to mention here that according to written statement of O.P. No. 1, he himself sustained injuries in this accident and he has also admitted the date, time and place of the accident. Therefore, it was legally incumbent upon him to prove his case before the Tribunal as he was the best person to make clear how this accident occurred but as no evidence has been adduced by the O.P. No. 1 in this regard, therefore, there is no reason to disbelieve the evidence adduced on behalf of the claimants by way of P.W. 1.15. Admittedly this petition has been moved Under Section 163A of the M.V. Act, therefore, legally the claimants are not supposed to prove the rash and negligent act of driving by O.P. No. 1 and in such a petition legally, the claimants are not required even to plead or establish that the death, in respect of which the claim has been made, was due to any wrongly act or negligence or default of the owner driver of the vehicle or any other person and in such a petition, the owner of the vehicle or the authorised insurer is legally liable to make the payment of compensation.7. So far as issues 3 and 4 are concerned, they read as follows:3. Whether at the time of accident the deceased was not having a valid driving license?4. Whether at the time of accident the OP No. 1 was not having a valid driving license?8. The Tribunal then records in paragraph 17 that both the opposite parties did not press these issues during arguments.10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.12. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied)13. In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary Under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.14. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect.15. Coming to the argument based on the maximum liability being Rs. 1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage.16. We would have restored the MACTs judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo.