Saturday, 27 June 2015

Whether claim petition under MACT will abate on death of owner of vehicle due to which accident happened?


It is apt to reproduce Section 155 of the MV Act herein:
"155. Effect of death on certain causes of
action.
-
Notwithstanding
anything
contained in section 306 of the Indian

Succession Act, 1925 (39 of 1925), the death
of a person in whose favour a certificate of
insurance had been insured, if it occurs after
the happening of an event which has given
rise to a claim under the provisions of this
Chapter, shall not be a bar to the survival of
any cause of action arising out of the said
event against his estate or against the
insurer."
Claim petition-Abatement-Death of driver-cum-owner of vehicle during pendency of claim petition-shall not be bar to survival of cause of action arising out of accident against his assets and his insurer-O 22 of cpc is not applicable to proceeding before motor accidents claim tribunal-Claim petition would not abate on ground of death on ground of death of owner.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.
17 of 2008
United India Insurance Company Limited
Vs

Smt. Brijbala & others

Decided on: 20.03.2015
Coram

The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Citation;AIR 2015 Himachal Pradesh34

This appeal is directed against the award, dated 29 th
September, 2007, made by the Motor Accident Claims Tribunal,
Fast Track Court, Una, District Una, H.P. (hereinafter referred to as
“the Tribunal”) in M.A.C. Petition No. 89/01 RBT 31/05/2001, titled
as Brijbala and others versus Jaswant Singh and another, whereby
compensation to the tune of ` 6,70,000/- with interest @ 7.5% per
annum from the date of filing of the claim petition till its realization
came to be awarded in favour of the claimants (hereinafter referred

to as “the impugned award), on the grounds taken in the memo of
It is necessary to give a flashback of the case, the
womb of which has given birth to this case.
Brief facts:
Deceased-Krishan Kumar was a diploma holder and
3.
2.
appeal.
instructor in Art and Craft, became the victim of a vehicular

accident on 14th June, 2001, at about 4.00 a.m. at Amb Chowk,
which was caused by the driver, namely Shri Jaswant Singh, while
negligently.
driving truck, bearing registration No. OR-04-2973, rashly and
The said cruel accident has compelled, rather
constrained the claimants-respondents herein to file a claim petition
for grant of compensation to the tune of ` 15,00,000/-, as per the
break-ups given in the claim petition.
4.
The claimants have specifically averred in the claim
petition that they are the dependents of the deceased. Claimant No.
1 is the widow and claimants No. 2 to 5 are the minor daughters
and son of the deceased.
5.
The respondents appeared before the Tribunal.
The
owner-cum-driver (respondent No. 1 in the claim petition) died
before he could have filed reply and his name was struck off in
terms of order, dated 2nd December, 2006.

6.
Appellant-insurer resisted the claim petition on the
7.
grounds taken in the memo of objections.
Following issues came to be framed by the Tribunal on
15th December, 2006:
“1. Whether deceased Krishan Kumar alias
Bablu died because of rash and negligent
driving of truck No. OR-04-2973 by Jaswant
Singh on 14.6.2001 at about 4 a.m. at Amb as
alleged?
OPP

2. If issue No. 1 is proved in affirmative
whether the petitioners are entitled to
compensation, if so, how much and from
whom?
OPP
3. Whether the driver of vehicle No. OR-04-
2973 was not holding any driving licence at the
relevant time and in case he was holding the
driving licence whether the same was not valid
and effective, if so its effect?
OPR
4. Whether the vehicle in question was not fit
to ply on the road at the relevant time? OPR
8.
5. Whether the petition is bad for non-joinder of
owner and driver of vehicle in question? OPR
6. Relief."
The claimants have examined Dr. V.K. Raizada as PW-1,
HC Avtar Singh as PW-2, Shri Kuldeep Singh as PW-4 and claimant
No. 1, Smt. Brijbala, appeared in the witness box as PW-3.
the
claimants have also placed on record, copies of post mortem report,
FIR, matriculation certificate, detail marks certificate of Arts &

Crafts Teachers Training, Diploma of Technical Education as
Exhibits PW-1/A, PW-2/A, PW-3/A, PW-3/C and PW-3/B, respectively.
9.
Appellant-insurer has not led any evidence, however,
has placed on record certified copy of statement of Shri Kuldeep
Singh, copy of insurance policy and judgment delivered by
Additional Chief Judicial Magistrate, Una, in criminal case titled as
State versus Jaswant Singh as Exhibits R-I, R-II and RZ,

respectively.
Issue No. 1:
10.
The Tribunal, after scanning the evidence, oral as well
as documentary, held that the claimants have proved that the
driver, namely Shri Jaswant Singh, has driven the offending vehicle
rashly and negligently on 14th June, 2001, at about 4.00 a.m. at Amb
Chowk and the deceased, namely Shri Krishan Kumar, sustained
injuries and succumbed to the injuries. The findings returned by
the Tribunal on issue No. 1 are not in dispute, thus, are upheld.
11.
Before I deal with issue No. 2, I deem it proper to
determine issues No. 3 to 5.
Issues No. 3 to 5:
12.
The appellant-insurer had to lead evidence to prove
all these issues, which it has failed to do so, thus, has failed to

discharge the onus and the Tribunal has rightly decided issues No.
3 to 5 against the insurer-appellant.
Issue No. 2:
Claimant No. 1, while appearing in the witness box as
13.
PW-3, has stated that her husband was earning ` 12,000/- per
month, however, in her cross-examination, has stated that the
deceased was employed in a private school at Sirmaur and his

monthly salary was ` 5,000/- per month.
The Tribunal, taking a clue from the statement of the
14.
widow of the deceased that the income of the deceased was
` 5,000/- per month, deducted one third towards his personal
expenses and held that the claimants have lost source of
dependency to the tune of ` 40,000/- per annum. The multiplier of
'16' was applied and the claimants were held entitled to
compensation to the tune of ` 6,40,000/-.
The Tribunal has also
awarded ` 10,000/- under the head 'conventional charges' and
` 20,000/- as consortium to wife.
15.
The claimants have not questioned the adequacy of
compensation, despite the fact that the amount awarded is not in
accordance with the law laid down by the Apex Court Sarla Verma
(Smt) and others versus Delhi Transport Corporation and
another, reported in (2009) 6 Supreme Court Cases 121, which

was upheld by a larger Bench of the Apex Court
in Reshma
Kumari & Ors. versus Madan Mohan & Anr., reported in 2013
AIR SCW 3120. Learned counsel for the appellant-insurer has not
been able to marshal out and thrash out that the compensation
awarded is excessive, but, at the cost of repetition, it is meager and
16.
is reluctantly upheld.
Now, the question is - who should be saddled with

liability?
The factum of insurance is not in dispute and the
17.
appellant-insurer has failed to discharge the onus, thus, has failed
to prove that the owner-insured has committed any breach. Thus,
Learned counsel for the appellant-insurer argued that
18.
the appellant-insurer came to be rightly saddled with liability.
the claim petition has abated in view of the death of the driver-cum-
owner, who came to be deleted from the array of respondents vide
order, dated 2nd December, 2006, and his legal representatives have
not been brought on record. The argument is misconceived and
devoid of any force for the following reasons:
19.
It is beaten law of land that the aim and object of
awarding compensation is just to ameliorate the sufferings of the
claimants and the Courts/Tribunals have to decide the matter
as early as possible, that too, summarily in terms of the mandate of

Chapter XII of the Motor Vehicles Act, 1988 (hereinafter referred to
as "the MV Act").
20.
Sections 169 and 176 (b) of the MV Act read as under:
"169. Procedure and powers of Claims
Tribunals :- (1) In holding any inquiry under
section 168 , the Claims Tribunal may,
subject to any rules that may be made in this
behalf, follow such summary procedure as it
thinks fit.

(2) The Claims Tribunal shall have all the
powers of a Civil Court for the purpose of
taking evidence on oath and of enforcing the
attendance of witnesses and of compelling
the discovery and production of documents
and material object and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a
Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973.
(3) Subject to any rules that may be made in
this behalf, the Claims Tribunal?may, for the
purpose of adjudicating upon any claim for
compensation, choose one or more persons
possessing special knowledge of and matter
relevant to the inquiry to assist it in holding
the inquiry.
.........................
176. Power of State Government to make
rules :-
A State Government may make rules for the
purpose of carrying into effect the provisions
of sections 165 to 174, and in particular,
such rules may provide for all or any of the
following matters, namely:-
(a) ................

(b) the procedure to be followed by a Claims
Tribunal in holding an inquiry under this
Chapter;
................................"

These provisions of law provide that the mandate of
21.
Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is
cases, as early as possible.
The Apex Court and other High Courts have held that
22.
not applicable in such cases. It is for the Tribunal to decide the
the Courts should not succumb to the procedural wrangles and
tangles, hypertechnicalities and mystic maybes and that should not
be a ground to dismiss the claim petition and to defeat the rights of
23.
the claimants.
The same principle has been laid down by the Apex
Court in the cases titled as N.K.V. Bros. (P.) Ltd. versus M.
Karumai Ammal and others etc., reported in AIR 1980
Supreme Court 1354; Sohan Lal Passi versus P. Sesh Reddy
and others, reported in AIR 1996 Supreme Court 2627; and
Dulcina Fernandes and others vs. Joaquim Xavier Cruz and
another, reported in (2013) 10 Supreme Court Cases 646, and
by this Court in FAO No. 339 & 340 of 2008, titled as NIC versus
Parwati & others; FAO No. 172 of 2006, titled as Oriental
Insurance Company versus Shakuntla Devi & others; FAO No. 396

of 2012, titled as Asha & others versus Moti Ram & others and
Suneel Kumar & others, decided on 13.03.2015.
The High Court of Rajasthan in the judgment delivered
24.
FAO No. 4248 of 2013, titled as Magni Devi & others versus
in a case titled as Shiv Chandra and another versus Jasvinder
Singh and others, reported in 1992 ACJ 747, has discussed the
provisions of law and the Rules, which were applicable in the State

of Rajasthan and held that the appeal had not abated on the failure
to bring the legal representatives of the deceased owner on record.
25.
The Delhi High Court in a recent judgment in the case
titled as Oriental Insurance Co. Ltd. versus Biro Devi and
others, reported in 2015 ACJ 340, has also discussed the
provisions of Section 169 of the MV Act and the Rules applicable
and held that the death of the owner of the vehicle is not a ground
for evading the liability and it has no legal significance in the
contractual relationship between the insurer and insured for the
purpose of fastening the liability.
26.
The States have framed Rules in terms of Sections 169
and 176 (b) of the MV Act and some of the provisions of CPC have
been made applicable in the same fashion. The State of Himachal
Pradesh has also framed the Himachal Pradesh Motor Vehicle
Rules, 1999 (hereinafter referred to as "the Rules").

It is apt to reproduce Rule 232 of the Rules herein:
"232. The Code of Civil Procedure to
apply in certain cases:-
27.
The following provisions of the First
Schedule to the Code of Civil Procedure,
1908, shall so far as may be, apply to
proceedings before the Claims Tribunal,
namely, Order V, Rules 9 to 13 and 15 to 30;
Order IX; Order XIII; Rule 3 to 10; Order
XVI, Rules 2 to 21; Order XVII; Order XXI
and Order XXIII, Rules 1 to 3."
This Rule provides which of the provisions of the CPC

28.
are applicable. Order XXII of the CPC deals with abatement and the
provisions of said Order have not been made applicable. Only on
this count, the argument of the learned counsel for the appellant
Chapter XII of the MV Act is a complete code and
29.
merits to be turned down.
provides the mechanism how to determine the claim petitions and
appeals. Section 155 of the MV Act provides what is the effect of
death of the insured on cause of action. It specifically provides that
Section 306 of the Indian Succession Act, 1925 (39 of 1925) cannot
affect the claim petitions or appeals if the insured has died after the
happening of the event.
30.
It is apt to reproduce Section 155 of the MV Act herein:
"155. Effect of death on certain causes of
action.
-
Notwithstanding
anything
contained in section 306 of the Indian

Succession Act, 1925 (39 of 1925), the death
of a person in whose favour a certificate of
insurance had been insured, if it occurs after
the happening of an event which has given
rise to a claim under the provisions of this
Chapter, shall not be a bar to the survival of
any cause of action arising out of the said
event against his estate or against the
insurer."

Learned counsel for the appellant has relied upon the
31.
judgment of the Kerala High Court in the case titled as New India

Assurance Co. Ltd. versus Parameswaran and others, reported
in 2006 ACJ 1176, is not applicable to the instant case for the
following reason:
32.
Hon'ble Kerala High Court has not made discussion
about Section 155 of the MV Act, which provides that cause of
action survives.
33.
Having said so, the arguments advanced by the learned
counsel for the appellant are devoid of any force.
34.
Even
otherwise,
the
purpose
of
granting
of
compensation cannot be defeated on the said ground for the reason
that the Court/Tribunal has to ascertain what was the object behind
the legislation and what were the reasons for making such
legislation. The aim and object of granting compensation is for the
benefit of the persons/victims, from whom the source of dependency
has been taken away and who have lost their source of income and

are deprived of the love & affection and hope of future because of
the death of their kith and kin.
35.
In order to ensure that third party/victim of vehicular
accident receives compensation and his/her rights are not defeated,
introduced, which reads as under:
the MV Act has undergone a sea change and Section 146 was

"146. Necessity for insurance against
third party risk. - (1) No person shall use,
except as a passenger, or cause or allow any
other person to use, a motor vehicle in a
public place, unless there is in force in
relation to the use of the vehicle by that
person or that other person, as the case may
be, a policy of insurance complying with the
requirements of this Chapter :
Provided that in the case of a vehicle
carrying, or meant to carry, dangerous or
hazardous goods, there shall also be a policy
of insurance under the Public Liability
Insurance Act, 1991 (6 of 1991).
Explanation. - A person driving a motor
vehicle merely as a paid employee, while
there is in force in relation t the use of the
vehicle no such policy as is required by this
sub-section, shall not be deemed to act in
contravention of the sub-section unless he
knows or has reason to believe that there is
no such policy in force.
(2) Sub-section (1) shall not apply to any
vehicle owned by the Central Government or
a State Government and used for
Government purposes unconnected with any
commercial enterprise.
(3) The appropriate Government may, by
order, exempt from the operation of sub-

(b) any local authority;
(a) the Central Government or a State
Government, if the vehicle is used for
Government purposes connected with
any commercial enterprise;
section (1) any vehicle owned by any of the
following authorities, namely:-
(c) any State transport undertaking:
Provided that no such order shall be made in
relation to any such authority unless a fund
has been established and is maintained by
that authority in accordance with the rules
made in that behalf under this Act for
meeting any liability arising out of the use of
any vehicle of that authority which that
authority or any person in its employment
may incur to third parties.
Explanation. - For the purposes of this sub-
section, "appropriate Government" means
the Central Government or a State
Government, as the case may be, and -
(i) in relation to any corporation or
company owned by the Central
Government or any State Government,
means the Central Government or that
State Government;
(ii) in relation to any corporation or
company owned by the Central
Government and one or more State
Governments,
means
the
Central
Government;
(iii) in relation to any other State
transport undertaking or any local
authority, means that Government
which has control over that undertaking
or authority."

36.
The Apex Court has also discussed this aspect in a case
titled as S. Iyyapan versus United India Insurance Company
Limited and another, reported in (2013) 7 Supreme Court
Cases 62. It is apt to reproduce para 16 of the judgment herein:
rt
"16. The heading "Insurance of Motor
Vehicles against Third Party Risks" given in
Chapter XI of the Motor Vehicles Act, 1988
(Chapter VIII of 1939 Act) itself shows the
intention of the legislature to make third
party insurance compulsory and to ensure
that the victims of accident arising out of use
of motor vehicles would be able to get
compensation for the death or injuries
suffered. The provision has been inserted in
order to protect the persons travelling in
vehicles or using the road from the risk
attendant upon the user of the motor
vehicles on the road. To overcome this ugly
situation, the legislature has made it
obligatory that no motor vehicle shall be
used unless a third party insurance is in
force.".
37.
Viewed thus, the rights of victims of vehicular accidents
38. It pains me to record herein that the claimants were
cannot be defeated on flimsy grounds.
constrained to file the claim petition because of the vehicular
accident and for no fault of theirs, entered into the litigation right
from 21st September, 2001.
The claim petition was to be
determined summarily within the shortest possible time in terms of
the mandate of Chapter XII of the MV Act and the law laid down by

the Apex Court and this Court, but came to be determined by the
Tribunal after six years. However, the claimants have not been able
to reap the fruits of the litigation till today for the reason that the
insurer has questioned the impugned award by the medium of this
appeal, which is on the Board of this Court for the last more than
seven years. The minutes of the files are self-speaking.
39.
Having said so, the appeal deserves to be dismissed

and the impugned award is to be upheld. Accordingly, the appeal is
40.
dismissed and the impugned award is upheld.
Claimants No. 2 to 5 have attained majority. Hence,
the guardian is discharged. Registry to make necessary entry in the
cause title.
Registry is directed to release the awarded amount in
41.
favour of the claimants strictly as per the terms and conditions
contained in the impugned award after proper identification.
42.
Send down the record after placing copy of the
judgment on Tribunal's file.
(Mansoor Ahmad Mir)
Chief Justice
March 20, 2015


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