Case: National Insurance Co.Ltd Vs. Sinitha

26. The Tribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant. 27. The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a third party. It seems, that the instant determination raised at the hands of the learned counsel for the petitioner, is based on the determination rendered by this Court in Oriental Insurance Company Limited vs. Jhuma Saha, (2007) 9 SCC 263 , wherein, this Court held as under : "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable." 28. According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163A of the Act. 29. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner. 30.

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

Explanation:
0[ds]Firstly, that compensation was payable under Section 140 of the Act, without the necessity of pleading or establishing, that death or permanent disablement was due to any "wrongful act", "neglect" or "default" of the offending vehicle or vehicles. It was also concluded, that a claim under Section 140 of the Act cannot be defeated ".....by reason of any wrongful act, neglect or default of the offending vehicle/person responsible for death or permanent disablement.....". (from paragraph 15 extracted above)Secondly, that the word "also" used in sub-section (5) of Section 140 of the Act, and the proviso to sub-section (5) of Section 140 clarifies, that the amount of compensation payable under "any other law" for the time being in force, was separate and distinct from the amount of compensation payable under sub-section (2) of Section 140 or Section 163A of the Act. It was however clarified, that the amount of compensation held as payable under any other law would have to be reduced from the amount of compensation payable under Sections 140(2) or 163A of the Act (from paragraph 16 extractedsub-section (2) of Section 141 of the Act provides, that in cases where compensation is sought both under Section 140 of the Act, as also, under a provision governed by the "fault" liability principle under the Act, then the claim raised under Section 140 would be decided first. And the compensation so awarded under Section 140 aforementioned, would be adjusted while paying compensation determined under the "fault" liability principle. (from paragraph 16 extractedSection 141 of the Act provides, that the right to claim compensation on the basis of the "no-fault" liability principle under Section 140, was in addition to the right to claim compensation "under any other provision of this Act". There are some exceptions. Compensation under Section 140 would not be in addition to the compensation contemplated under the schemed Section 163 of the Act. Compensation determined under Section 140 of the Act, would be deducted from the compensation found payable, under any other provision under the Act governed by the "fault" liability principle. (from paragraph 16 extractedSection 163A nowhere provides, that payment of compensation under the "fault" liability principle, would be in addition to the right to claim compensation thereunder (under Section 163A of the Act). Accordingly, the scheme of payment of compensation under Section 163A provides an alternative right, from the one provided under Section 168 of the Act. (from paragraph 16 extractedwhile referring to the phrase "compensation under any other law for the time being in force" contained in the proviso to sub-section (5) of Section 140 of the Act (in its un-amended format), it was concluded, that the scheme of Section 167 indicated, that the aforesaid phrase was referable to compensation payable under the Workmens Compensation Act, 1923 or any other law in force i.e., other than compensation contemplated under the Act. (from paragraph 17 extractedthe question whether compensation determined under Section 163A of the Act would be in addition to the compensation receivable under the "fault" liability principle was answered in the negative. Accordingly, the contention that the compensation determined under Section 163A of the Act would be adjustable from the compensation found payable under any other provision governed by the "fault" liability principle, was alsoon a conjunctive examination of the phrase "compensation under any other law for the time being in force" occurring in the proviso to sub-section (5) of Section 140 of the Act, with the scheme of Section 167 of the Act, it was concluded, that the aforesaid phrase was referable to compensation payable under the Workmens Compensation Act, 1923. Therefore, it was concluded that a claim cannot be raised under both the Acts i.e., the Motor Vehicles Act, 1988, and the Workmens Compensation Act, 1923. (from paragraph 19 extractedfrom the use of the words "under any law for the time being in force" used in Section 140(5) of the Act ; the words "under any other provision of this Act or of any other law for the time being in force", used in Section 141(1) of the Act ; the stipulation contained in Section 141(2) of the Act, that a claim under Section 140 is to be disposed of "as expeditiously as possible" and before compensation is determined under the "fault" liability provisions (and noticing that there was no such provision in Section 163A of the Act) ; the phrase "any other law for the time being in force" and "provisions of this Act" used in Section 161(2) of the Act ; the use of the words "under any other provision of this Act" and "any other law or otherwise" used in Section 162 of the Act ; the words "notwithstanding anything contained in this Act or in any other law for the time being in force", used in Section 163A of the Act ; it was held that all these phrases were to be examined together. When examined together it was concluded, that the compensation payable under Section 140 of the Act was not liable to deduction or adjustment out of the compensation determinable under the "fault" liability principle i.e., under Section 168 of thefind merit in the aforesaid contention of the learned counsel for the appellant, insofar as the first aspect of this matter is concerned. There can be no dispute whatsoever, that the issues of law arising for consideration in the present controversy as against the matter adjudicated upon by this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), are separate and distinct. In fact, there is hardly any grey area which may be considered as common between the issues involved. We are also satisfied that the second contention advanced at the hands of the learned counsel for the petitioner cannot be brushed aside. Sub-section (4) of Section 140 of the Act was not referred to, nor taken into consideration, while adjudicating upon the controversy arising in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). Absence of reference to sub-section (4) of Section 140 of the Act was because the same was wholly irrelevant for the purpose of the controversy settled in the aforesaid case. We also find merit in the last contention advanced at the hands of the learned counsel for the petitioner, namely, the overriding effect of Section 163A by the use of the words "Notwithstanding anything contained in this act or any other law for the time being in force or instrument having the force of law .....". In this behalf, it would be pertinent to mention, that Section 163A was introduced into the Motor Vehicles Act, 1988 by way of an amendment carried out with effect from 14.11.1994. As against the aforesaid, it is necessary to mention that Section 144 of the Act was incorporated into the Motor Vehicles Act, 1988 from the very beginning. Section 144, it may be pointed out, is a part of Chapter X of the Motor Vehicles Act, 1988, which includes Sectionwill now venture to determine whether a claim made under Section 163A of the Act is a claim under the "fault" liability principle, or under the "no-fault" liability principle. We are satisfied, that if a claim for compensation under a provision, is not sustainable for reason of a "fault" on account of any one or more of the following i.e., "wrongful act", "neglect" or "default", the provision in question would be governed by the "fault" liability principle. Stated differently, where the claimant in order to establish his right to claim compensation (under a particular provision) has to establish, that the same does not arise out of "wrongful act" or "neglect" or "default", the said provision will be deemed to fall under the "fault" liability principle. So also, where a claim for compensation can be defeated on account of any of the aforesaid considerations on the basis of a "fault" ground, the same would also fall under the "fault" liability principle. On the contrary, if under a provision, a claimant does not have to establish, that his claim does not arise out of "wrongful act" or "neglect" or "default"; and conversely, the claim cannot be defeated on account of any of the aforesaid considerations; then most certainly, the provision in question will fall under the "no-fault" liabilityis essential for us to determine whether or not the compensation awarded to the claimants/respondents in the present controversy, by the Tribunal, as also, by the High Court, is liable to be set aside on the plea of "negligence" raised at the hands of the petitioner. The award rendered by the Tribunal, as also, the decision of the High Court in favour of the claimants/respondents is, therefore, liable to be reappraised keeping in mind the conclusions recorded by us. In case, the petitioner can establish having pleaded and proved negligence at the hands of the rider Shijo, the petitioner would succeed. The pleadings filed before the Tribunal at the hands of the petitioner, are not before us. What is before us, is the award of the Tribunal dated 19.4.2005. We shall endeavour to determine the plea of negligence advanced at the hands of the learned counsel for the petitioner from theTribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant.The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a thirdthe course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner.