National Insurance Co.Ltd vs Sinitha & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No.6513 of 2007

National Insurance Company Ltd. .... Appellant

Versus

Sinitha & Ors. .... Respondents

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Shijo, aged 27 years, was riding a motorcycle bearing registration

no.KL-8J-6528, on 3.3.1999 on the Wadakkanchery-Kunnamkulam Road.

George K., also aged 27 years, was pillion-riding with Shijo. While giving

way to a bus coming from the opposite side at Kumaranelly, the

motorcycle hit a big laterite stone lying on the tar road. On impact, the

motorcycle overturned. Resultantly, the rider as also the pillion-rider

suffered injuries. They were taken to Divine Medical Centre,

Wadakkanchery, for treatment. Thereafter, the rider Shijo, was taken to

West Fort Hospital, Thrissur. The pillion-rider George K. was taken to

Medical College Hospital, Thrissur. Shijo succumbed to his injuries on the

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following day. George K., survived. The motorcycle was insured with the

petitioner herein i.e. the National Insurance Company Limited. A valid act

only policy, at the time of the occurrence, is admitted.

2. On 18.8.2000 the complainants, i.e. the wife, children and parents of

Shijo, filed a claim petition before the Motor Accident Claims Tribunal,

Thrissur, Kerala (hereinafter referred to as `the Tribunal'), under Section

166 of the Motor Vehicles Act, 1988 (hereinafter referred to as `the Act').

Through the aforesaid claim petition, the claimants prayed for

compensation of Rs.8,20,500/-. The claim petition was subsequently

amended, inasmuch as, the claim was sought under Section 163A of the

Act. A separate claim for compensation by George K., the pillion-rider,

was also filed. The claim made by George K., is not relevant for the

present controversy, inasmuch as, the instant petition pertains to

compensation awardable to the claimants of deceased Shijo.

3. The Tribunal by its order dated 19.4.2005, allowed the claim petition

filed by the wife, minor children and parents of Shijo. They were awarded

compensation of Rs.4,26,650/-. The instant compensation included

Rs.2000/- towards funeral expenses, Rs.5000/- for loss of consortium to

the widow, Rs.2500/- as loss of estate, Rs.4150/- towards medical

expenses and Rs.5000/- as compensation for pain and suffering.

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Additionally, interest at the rate of 6% per annum was awarded with effect

from 18.8.2000 (i.e. the date of filing the claim petition), till realization. The

claimants were also awarded costs quantified at Rs.8000/-.

4. Dissatisfied with the determination rendered by the Tribunal, the

National Insurance Company Limited, i.e. the appellant herein, preferred

MACA no.1569 of 2006 before the Kerala High Court. The High Court

decided the said appeal on 22.9.2006. The High Court upheld one of the

contentions of the appellant-Insurance Company by holding, that Rs.5000/-

awarded for pain and suffering, was impermissible under Section 163A of

the Act. Even without issuing notice to the claimants, the aforesaid

amount was ordered to be deducted from the total compensation held as

payable to claimants (by the Tribunal). Besides the aforesaid

determination, all other components of compensation awarded by the

Tribunal, were upheld by the High Court. Still dissatisfied, the National

Insurance Company Limited has approached this Court by filing the instant

petition, for special leave to appeal.

5. While assailing the order of the High Court, the first contention

advanced at the hands of the learned counsel for the petitioner was, that

the claimants are not entitled to raise any claim for compensation because

the accident in question had occurred solely and exclusively on account of

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the negligence of the deceased Shijo. Insofar as the instant contention is

concerned, reliance was placed on the determination rendered by the

Tribunal, wherein in paragraph 8, based on the first information report, post

mortem certificate, scene mahazor, report of inspection of the vehicle,

inquest report and the final report, the Tribunal had concluded that Shijo

was "responsible" for the accident. It was, therefore, the submission of the

learned counsel for the petitioner, that no compensation was payable to

the claimants on account of the death of Shijo, who was himself,

responsible for the accident. It was the contention of the learned counsel

for the petitioner, that it was not just and appropriate to award

compensation, wherein the claimants represented the person "responsible"

for the accident. Such a determination, according to the learned counsel

for the petitioner, would amount to rewarding the representatives of the

wrong doer.

6. In order to repudiate the aforesaid submission, advanced at the

hands of the learned counsel for the petitioner, learned counsel

representing the respondents, was satisfied in placing reliance on the

decision rendered by this Court in Oriental Insurance Company Limited

vs. Hansrajbhai V. Kodala, (2001) 5 SCC 175. The submissions

advanced at the hands of the learned counsel for the respondents was,

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that compensation determined under Section 163A of the Act, was

determined under the "no-fault" liability principle. It was pointed out, that

under the "no-fault" liability principle, the fault of the party is not a relevant

consideration. Accordingly, it was submitted, that the issue of "wrongful

act", "neglect" or "fault", at the hands of the deceased Shijo were irrelevant

for the determination of a claim made under Section 163A of the Act.

Learned counsel for the respondents had placed reliance on paragraph 15

of the judgment. We are, however, extracting paragraphs 15 to 19 of the

judgment hereunder, so as to examine holistically the inferences and

conclusions recorded by this Court in Oriental Insurance Company Limited

vs. Hansrajbhai V. Kodala (supra):

"15. In this context if we refer to the Review Committee's report, the

reason for enacting Section 163-A is to give earliest relief to the victims

of the motor vehicle accidents. The Committee observed that

determination of cases takes a long time and, therefore, under a system

of structural compensation, the compensation that is payable for different

classes of cases depending upon the age of the deceased, the monthly

income at the time of death, the earning potential in the case of a minor,

loss of income on account of loss of limb etc. can be notified and the

affected party can then have option of their accepting lump-sum

compensation under the Scheme of structural compensation or of

pursuing his claim through the normal channels. The report of the

Review Committee was considered by the State Governments and

comments were notified. Thereafter, the Transport Development Council

made suggestions for providing adequate compensation to victims of

road accidents without going into long-drawn procedure. As per the

objects and reasons, it is a new predetermined formula for payment of

compensation to road accident victims on the basis of age/income,

which is more liberal and rational. On the basis of the said

recommendation after considering the report of the Transport

Development Council, the Bill was introduced with "a new predetermined

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formula for payment of compensation to road accident victims on the

basis of age/income, which is more liberal and rational" i.e. Section 163-

A. It is also apparent that compensation payable under Section 163-A is

almost based on relevant criteria for determining the compensation such

as annual income, age of the victim and multiplier to be applied. In

addition to the figure which is arrived at on the basis of the said criteria,

the Schedule also provides that amount of compensation shall not be

less than Rs 50,000. It provides for fixed amount of general damage in

case of death such as (1) Rs 2000 for funeral expenses, (2) Rs 5000 for

loss of consortium, if beneficiary is the spouse, (3) Rs 2400 for loss of

estate, (4) for medical expenses supported by the bills, voucher not

exceeding Rs 15,000. Similarly, for disability in a non- fatal accident para

5 of the Schedule provides for determination of compensation on the

basis of permanent disability. Para 6 provides for notional income for

those who had no income prior to an accident at Rs 15,000 per annum.

There is also provision for reduction of 1/3rd amount of compensation on

the assumption that the victim would have incurred the said amount

towards maintaining himself had he been alive. The purpose of this

section and the Second Schedule is to avoid long-drawn litigation and

delay in payment of compensation to the victims or his heirs who are in

dire need of relief. If such affected claimant opts for accepting the lump-

sum compensation based on structured formula, he would get relief at

the earliest. It also gives vital advantage of not pleading or establishing

any wrongful act or neglect or default of the owner of the offending

vehicle or vehicles. This no-fault liability appears to have been

introduced on the basis of the suggestion of the Law Commission to the

effect that the expanding notions of social security and social justice

envisage that liability to pay compensation must be "no-fault liability" and

a s observed by this Court in R amanbhai case (1987) 3 SCC 234 "in

order to meet to some extent the responsibility of the society to the

deaths and injuries caused in road accidents". However, this benefit can

be availed of by the claimant only by restricting his claim on the basis of

income at a slab of Rs 40,000 which is the highest slab in the Second

Schedule which indicates that the legislature wanted to give benefit of

no- fault liability to a certain limit. This would clearly indicate that the

Scheme is in alternative to the determination of compensation on fault

basis under the Act. The object underlining the said amendment is to

pay compensation without there being any long-drawn litigation on a

predetermined formula, which is known as structured-formula basis

which itself is based on relevant criteria for determining compensation

and the procedure of paying compensation after determining the fault is

done away. Compensation amount is paid without pleading or proof of

fault, on the principle of social justice as a social security measure

because of ever-increasing motor vehicle accidents in a fast-moving

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society. Further, the law before insertion of Section 163-A was giving

limited benefit to the extent provided under Section 140 for no-fault

liability and determination of compensation amount on fault liability was

taking a long time. That mischief is sought to be remedied by introducing

Section 163-A and the disease of delay is sought to be cured to a large

extent by affording benefit to the victims on structured- formula basis.

Further, if the question of determining compensation on fault liability is

kept alive it would result in additional litigation and complications in case

claimants fail to establish liability of the owner of the defaulting vehicles.

Use of specific words "also" and "in addition" in Sections 140 and 141

16. The aforesaid conclusion gets support from the language used in

Sections 140, 141, 161 and 163-A. Sections 140 to 143 provide for

liability of the owner of the vehicle in case of death or permanent

disablement of any person resulting from an accident arising out of use

of a motor vehicle or motor vehicles, to pay compensation without any

pleading or establishing that death or permanent disablement was due to

any wrongful act, neglect or default of the owner or owners of the vehicle

or vehicles. By way of earliest relief, the victim is entitled to get the

amount of compensation of Rs 50,000 in case of death and Rs 25,000 in

case of permanent disablement. It is further provided that such claim

shall not be defeated by reason of any wrongful act, neglect or default of

the person in respect of whose death or permanent disablement has

occurred. Sub-section (5) of Section 140 upon which much reliance is

placed by learned counsel for the Insurance Companies as well as the

claimants requires consideration and interpretation, which inter alia

provides that owner of the vehicle is also liable to pay compensation

under any other law for the time being in force. The word "also" indicates

that the owner of the vehicle would be additionally liable to pay

compensation under any other law for the time being in force. The

proviso to sub-section (5) further clarifies that the amount of

compensation payable under any other law for the time being in force is

to be reduced from the amount of compensation payable under sub-

section (2) or under Section 163-A. This is further crystallised in Section

141 which provides that right to claim compensation under Section 140

is in addition to any other right to claim compensation on the principle of

fault liability and specifically excludes the right to claim compensation

under the Scheme referred to in Section 163-A. Section 163-B also

provides that where a person is entitled to claim compensation under

Section 140 and Section 163-A, he can file the claim under either of the

said sections, but not under both. Similarly, Section 141(1) also

crystallises that right to claim compensation under Section 140 is in

addition to the right to claim compensation in respect thereof under any

other provision of the Act or any other law for the time being in force.

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Sub-section (2) further provides that if the claimant has filed an

application for compensation under Section 140 and also in pursuance

of any right on the principle of fault liability, the claim for compensation

under Section 140 is to be disposed of in the first place and as provided

in sub-section (3) the amount received under sub-section (2) of Section

140 is to be adjusted while paying the compensation on the principle of

fault liability. On the basis of fault liability if additional amount is required

to be paid then the claimant is entitled to get the same but there is no

provision for refund of the amount received under Section 140(2), even if

the Claims Tribunal arrives at the conclusion that the claimant was not

entitled to get any compensation on the principle of fault liability. Further,

Section 144 gives overriding effect to the provisions made under

Chapter X by providing that the provisions of the Chapter shall have

effect notwithstanding anything contained in any provision of the Act or

of any other law for the time being in force. From the aforesaid sections,

one aspect is abundantly clear that right to claim compensation on the

basis of no-fault liability under Section 140 is in addition to the right to

claim compensation on the principle of fault liability or right to get

compensation under any other law. Such amount is required to be

reduced from the amount payable under the fault liability or

compensation which may be received under any other law. If nothing is

p ayable under the Act then the claimant is n ot required to refund the

amount received by him. As against this, there is specific departure in

the Scheme envisaged for paying compensation under Section 163-A.

Section 163-A nowhere provides that this payment of compensation on

no-fault liability on the basis of structured formula is in addition to the

liability to pay compensation in accordance with the right to get

compensation on the principle of fault liability and unless otherwise

provided for the same cause, compensation cannot be paid again.

Provisions for refund of compensation if compensation is received under

any other law or under the Act

17. Further, as the legislature has not provided for refund or adjustment

of compensation received "under the Act" and compensation payable

under Section 163-A, it would mean that the Scheme of payment of

compensation under Section 163-A, is in alternative to determination of

compensation under Section 168. As stated above, Sections 140(5) and

141(3) make provisions for reduction of compensation paid under

Section 140. Under proviso to sub-section (5) of Section 140, the

amount of such compensation which the claimant is entitled to receive

under any other law is required to be reduced from the amount of

compensation payable under Section 140 or under Section 163-A. Under

Section 141(3), if a person gets the compensation on principle of fault

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liability, then also provision is made for adjustment of compensation

received under Section 140. There is no such provision for adjustment of

compensation received under Section 163-A from the compensation

receivable "under the Act" on the principle of fault. Similarly, Section 161

provides for payment of compensation in case of "hit-and-run" motor

accidents. Under Section 161(3), in cases in respect of the death of any

person resulting from a "hit-and-run" motor accident, a fixed sum of Rs

25,000 is to be paid as compensation and in case of grievous hurt, the

amount fixed is Rs 12,500. Thereafter, under Section 162, the legislature

has provided for refund of compensation paid under Section 161 on the

principle of "hit-and-run motor accident" by providing that the payment of

compensation under Section 161 shall be subject to the condition that if

any compensation is awarded "under any other provision of this Act" or

"any other law" or "otherwise", so much amount as is equal to the

compensation paid under Section 161 is required to be adjusted or

refunded to the insurer. Under Section 162(2), duty is cast on the

tribunal, court or other authority awarding such compensation to verify as

to whether in respect of such death or bodily injury, compensation has

already been paid under Section 161 and to make adjustment as

required thereunder. Result is, the claimant is not entitled to have

additional compensation but at the same time he can proceed by filing

application under Section 165 or under the Workmen's Compensation

Act, 1923 (i.e. other law) and if he gets compensation under either of the

said provisions, the amount paid under Section 161 is to be refunded or

adjusted.

18. The contention of the learned counsel for the claimants that

compensation payable under Section 163-A is in addition to the

determination of compensation on the basis of fault liability and

thereafter it could be adjusted on similar lines provided under Section

140 read with Section 141 or Section 162 cannot be accepted. The

legislature has specifically provided Scheme of adjustment of

compensation under Section 140 read with Section 141 and Section 162

if the claimants get compensation under the Act, while there are no such

provisions under Section 163-A. Addition or introduction of such scheme

in provisions would be impermissible.

Use of different words such as -- "any other law, under this section",

"any other law for the time being in force", "provisions of this Act" or "any

other provision of this Act" in different sections

19. The learned counsel for the claimants submitted that the proviso to

sub-section (5) of Section 140 would mean that even in case where

compensation is determined under the structured-basis formula under

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Section 163-A, the claimant is entitled to claim compensation on the

basis of fault liability and if he gets higher amount on the basis of fault

liability then from that amount compensation which is paid under Section

163-A is to be reduced. At the first blush the argument of the learned

counsel appears to be attractive as the proviso to sub-section (5) of

Section 140 is to some extent ambiguous and vague. It may mean that

amount of compensation given under any other law may include the

amount payable on the basis of fault liability, therefore, in view of the

said proviso compensation amount payable under any other law is to be

reduced from the compensation payable under Section 140 or 163-A.

For appreciating this contention and for ascertaining appropriate

me aning of the phrase " co mpensation under any other law for the time

b eing in force ", the proviso to sub-section (5) is required to be

considered along with other provisions. The Scheme of other provision in

Section 167 indicates that the aforesaid phrase is referable to

compensation payable under the Workmen's Compensation Act, 1923 or

any other law which may be in force but not to the determination of

"compensation under the Act", and would not include the compensation

which is determined "under the provision of the Act". Thus Section 167 in

terms provides that where death of, or bodily injury to, any person gives

rise to claim compensation under the Act and also under the Workmen's

Compensation Act, 1923, such person cannot claim compensation under

both the Acts. Further, in Section 140(5), the legislature has used the

words "under any other law for the time being in force" and "under any

other law". In Section 141(1), the legislature has used the phrase "under

any other provision of this Act or of any other law for the time being in

force". In sub-section (2), the legislature has specifically provided that a

claim for compensation under Section 140 shall be disposed of as

expeditiously as possible and where compensation is also claimed in

pursuance of any right on principle of fault, the application under Section

140 is to be disposed of in first place. Whereas, there is no such

reference for payment of compensation under Section 163-A. Further, in

Section 161(2), the legislature has used the phrase "any other law for

the time being in force" and "provisions of this Act". Similarly, in Section

162, the legislature has used the words "under any other provisions of

this Act" or "any other law or otherwise". As against this, in Section 163-

A, the legislature has used the phrase "notwithstanding anything

contained in this Act or in any other law for the time being in force" .

When the legislature has taken care of using different phrases in

different sections, normally different meaning is required to be assigned

to the language used by the legislature, unless context otherwise

requires. However, in relation to the same subject-matter, if different

words of different import are used in the same statute, there is a

presumption that they are not used in the same sense (Member, Board

11

of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35. In this light,

particularly Section 141 which provides for right to claim compensation

"under any other provision of this Act" or of "any other law for the time

being in force", proviso to sub-section (5) of Section 140 would mean

that it does not provide for deduction or adjustment of compensation

payable under the Act, that is, on the principle of fault liability which is to

be determined under Section 168.

Sp ecific language of Section 163-A including its heading "

.

(emphasis is

ours)

7. It is apparent from the observations extracted herein above, that this

Court had drawn the following inferences and conclusions:

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

12

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 extracted above)

Thirdly, sub-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 extracted above)

Fourthly, Section 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 extracted above)

Fifthly, Section 163A nowhere provides, that payment of compensation

under the "fault" liability principle, would be in addition to the right to claim

13

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 extracted above)

Sixthly, while 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 Workmen's Compensation

Act, 1923 or any other law in force i.e., other than compensation

contemplated under the Act. (from paragraph 17 extracted above)

Seventhly, the 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 also rejected.

(from paragraph 18 extracted above)

Eighthly, on 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

14

Act, it was concluded, that the aforesaid phrase was referable to

compensation payable under the Workmen's 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 Workmen's Compensation

Act, 1923. (from paragraph 19 extracted above).

Ninthly, from 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

15

the "fault" liability principle i.e., under Section 168 of the Act. (from

paragraph 19 extracted above).

On a collective analysis of the inferences and conclusions summarized

above, this Court in Oriental Insurance Company Limited vs. Hansrajbhai

V. Kodala (supra) held, that compensation payable under Section 163A of

the Act was not as an interim measure, but was final. Therefore,

compensation determined under Section 163A could not be in addition to a

claim for further compensation under a separate provision governed by the

"fault" liability principle. It would be relevant to notice here, that we have

intentionally and deliberately drawn inferences as have been extracted

hereinabove, from the observations made by this Court in Oriental

Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). This

exercise has been ventured, so as to obviate the possibility of missing

something which did not find place in paragraph 22 of the aforesaid

judgment, wherein, reasons for having arrived at the eventual conclusion in

the matter were recorded. This exercise was essential because the

learned counsel for the respondents had primarily placed reliance only on

paragraph 15 (extracted above) of the said judgment, during the course of

hearing. At times it is seen, that conclusions may have been recorded

keeping in mind, the pointed controversy dealt with. 16

8. A thorough analysis of the observations of the Bench in addition to

the conclusions drawn by the Court in paragraph 22 of the judgment relied

upon by the learned counsel for the respondents, we hope, would lead us

to an appropriate conclusion on the matter in hand. In addition to having

recorded the inferences and conclusions drawn in the judgment relied

upon by the learned counsel for the respondents, it would also be

necessary for us to extract hereunder the reasons recorded by this Court

while rendering its judgment in Oriental Insurance Company Limited vs.

Hansrajbhai V. Kodala (supra). The aforesaid conclusions recorded in

paragraph 22 of the judgment are being extracted herein :

"22. In the result, the contention of the claimants that right to get

compensation under Section 163-A is additional to claim compensation on

no-fault liability is rejected for the following reasons:

(1) There is no specific provision in the Act to the effect that such

compensation is in addition to the compensation payable under the Act.

Wherever the legislature wanted to provide additional compensation, it

has done so (Sections 140 and 141).

(2) In case where compensation is paid on no-fault liability under

Sections 140 and 161 in case of "hit-and-run motor accidents", the

legislature has provided adjustment or refund of the said compensation in

case where compensation is determined and payable under the award on

the basis of fault liability under Section 168 of the Act. There is no such

procedure for refund or adjustment of compensation paid where the

compensation is paid under Section 163-A.

(3) The words "under any other law for the time being in force" would

certainly have different meaning from the words "under this Act" or "under

any other provision of this Act".

(4) In view of the non obstante clause "notwithstanding anything

contained in this Act" the provisions of Section 163-A would exclude

determination of compensation on the principle of fault liability.

(5) The procedure of giving compensation under Section 163-A is

inconsistent with the procedure prescribed for awarding compensation on

17

fault liability. Under Section 163-A compensation is awarded without proof

of any fault while for getting compensation on the basis of fault liability the

claimant is required to prove wrongful act, neglect or default of the owner

of the vehicle or the vehicle concerned.

(6) Award of compensation under Section 163-A is on a predetermined

formula for payment of compensation to road accident victims and that

formula itself is based on criteria similar to determining the compensation

under Section 168. The object was to avoid delay in determination of

compensation."

Having collectively analysed all that has been noticed by us in the instant

paragraph, and the reasons extracted from paragraph 22 hereinabove, we

must conclude that no categorical determination emerges therefrom, that

section 163A of the Act has (or has not) been founded under the "no-fault"

liability principle.

9. In order to demonstrate, that the judgment relied upon by the

learned counsel for the respondents was inapplicable to the controversy in

hand, learned counsel for the petitioner contended, that the issue which

arose for consideration before this Court in Oriental Insurance Company

Limited vs. Hansrajbhai V. Kodala (supra) was delineated in paragraph 2

thereof. Paragraph 2 aforesaid is being extracted herein :

"2. The common question involved in these appeals is whether the

compensation payable under Section 163-A of the Motor Vehicles Act,

1988 (hereinafter referred to as "the Act") as per the structured-formula

basis is in addition or in the alternative to the determination of the

compensation on the principle of fault liability, after following the

procedure prescribed under the Act."

It was also pointed out, that the reasons recording the answer posed in

paragraph 2 (extracted above), contained in paragraph 22 (also extracted

18

above) clearly demonstrate, that the answer and the reasons thereof

clearly reveal, that the controversy adjudicating upon therein, pertained

only to the issue whether a claimant was entitled to claim further

compensation (under a separate provision governed by the "fault" liability

principle) after the claimant has sought and obtained compensation under

Section 163A of the Act. It was submitted, that the issue in hand in the

present case, is separate and distinct, namely, whether a claim for

compensation made under Section 163A of the Act, can be defeated either

by the owner or by the insurance company, by pleading and establishing,

that the accident in question was based on the "negligence" of the

offending vehicle. Secondly, it was the contention of the learned counsel

for the appellant, that while adjudicating upon the controversy in Oriental

Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), the

attention of this Court was not invited to sub-section (4) of Section 140, nor

the effect thereof, on the interpretation of Section 163A of the Act. In this

behalf, it is sought to be contended, that the interpretation of sub-section

(4) of Section 140 was wholly irrelevant to the issues raised and decided,

in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala

(supra), whereas, it is of extreme significance in the present controversy. Thirdly, it was the contention of the learned counsel for the appellant, that

the use of words "Notwithstanding anything contained in this act or any

19

other law for the time being in force or instrument having the force of

law.....", not only on account of the non obstinate clause contained in

Section 163A of the Act, but also on account of the overriding effect of the

provision envisaged therein, nothing contained in any of the Sections

referred to by this Court while deciding in Oriental Insurance Company

Limited vs. Hansrajbhai V. Kodala (supra), can be deemed to have the

effect of negating anything contained in Section 163A of the Act. As such,

it is sought to be asserted that the judgment rendered by this Court in

Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra),

cannot have any determinative effect on the controversy arising in this

case.

10. We find 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

20

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 Section 140. Section 144 of the Act is being extracted herein :

"144. Overriding effect. - The provisions of this Chapter shall have

effect notwithstanding anything contained in any other provision of

this act or of any other law for the time being in force."

Even though, Section 144 of the Act mandates, that the provisions of

Chapter X (which includes Section 140) have effect notwithstanding

21

anything to the contrary contained in any other provision of the Act or in

any other law for the time being in force. Section 144 of the Act would not

override the mandate contained in Section 163A, for the simple reason that

Section 144 provided for such effect over provisions "for the time being in

force", i.e., the provisions then existing, but Section 163A was not on the

statute book at the time when Section 144 was incorporated therein.

Therefore the provisions contained in Chapter X, would not have overriding

effect, over Section 163A of the Act. As against the aforesaid, at the time

of incorporation of Section 163A of the Act, Sections 140 and 144 of the

Act, were already subsisting, as such, the provisions of Section 163A

which also provided by way of a non-obstante clause, that it would have by

a legal fiction overriding effect over all existing provisions under the Act, as

also, any other law or instrument having the force of law "for the time being

in force", would have overriding effect, even over the then existing

provisions in Chapter X of the Act because the same was already in

existence when Section 163A was introduced into the Act. The importance

of the instant aspect of the matter is, that Section 163A of the Act has

overriding effect over all the provisions/sections taken into consideration by

this Court while deciding the controversy in Oriental Insurance Company

Limited vs. Hansrajbhai V. Kodala (supra). It is therefore clear, that none

of the provisions taken into consideration, in the decision relied upon by

22

the learned counsel for the respondents can override, the legal effect of

the mandate contained in Section 163A of the Act. We are, therefore,

satisfied that it would be incorrect to hold, that the controversy raised in the

instant case can be deemed to have been settled by this Court in Oriental

Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). We have

delineated the inferences drawn by us from the observations recorded in

Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra),

in extenso hereinabove. We have also reproduced, hereinabove,

paragraph 22 of the judgment in Oriental Insurance Company Limited vs.

Hansrajbhai V. Kodala (supra), so as to determine with some sense of

exactitude the conclusions drawn in the aforesaid judgment. It cannot be

stated that the issue arising in the present controversy, has been dealt with

or adjudicated upon in Oriental Insurance Company Limited vs.

Hansrajbhai V. Kodala (supra). Additionally, the contentions advanced at

the hands of the learned counsel for appellant, more particularly reliance

placed by him on sub-section (4) of Section 140 has certainly not been

dealt with Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala

(supra). Thus, viewed, it is not possible for us to conclude that the issue

arising in this case can be stated to have been settled. The assertion

made by the learned counsel for the respondents, that the issue raised in

23

the instant case, by the learned counsel of the petitioner, is no longer res

integra, can therefore not be accepted.

11. Having arrived at the conclusion that the issue in hand has to be

decided independently, we will 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

24

aforesaid considerations; then most certainly, the provision in question will

fall under the "no-fault" liability principle.

12. For determination of the issue under consideration, namely, whether

Section 163A of the Act is governed by the "fault" or the "no-fault" liability

principle, it is first relevant for us to examine Section 140 of the Act, so as

to determine whether it has any bearing on the interpretation of Section

163A of the Act. Section 140 aforesaid is being extracted hereunder :

"140. Liability to pay compensation in certain cases on the

principle of no fault. - (1) Where death or permanent disablement

of any person has resulted from an accident arising out of the use of

a motor vehicle or motor vehicles, the owner of the vehicle shall, or,

as the case may be, the owners of the vehicles shall jointly and

severally, be liable to pay compensation in respect of such death or

disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under

sub-section (1) in respect of the death of any person shall be a fixed

sum of fifty thousand rupees and the amount of compensation

payable under that sub-section in respect of the permanent

disablement of any person shall be a fixed sum of twenty-five

thousand rupees.

(3) In any claim for compensation under sub-section (1), the

claimant shall not be required to plead and establish that the death

or permanent disablement in respect of which the claim has been

made was due to any wrongful act, neglect or default of the owner or

owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be

defeated by reason of any wrongful act, neglect or default of the

person in respect whose death or permanent disablement the claim

has been made nor shall the quantum of compensation recoverable

in respect of such death or permanent disablement be reduced on

25

the basis of the share of such person in the responsibility for such

death or permanent disablement.

(5) Notwithstanding anything contained in sub-section (2)

regarding death or bodily injury to any person, for which the owner of

the vehicle is liable to give compensation for relief, he is also liable

to pay compensation under any other law for the time being in force :

Provided that the amount of such compensation to be given

under any other law shall be reduced from the amount of

compensation payable under this section or under section 163A."

For the instant determination, only sub-sections (3) and (4) are relevant. A

perusal of sub-section (3) reveals, that the burden of "pleading and

establishing", whether or not "wrongful act", "neglect" or "default" was

committed by the person (for or on whose behalf) compensation is claimed

under Section 140, would not rest on the shoulders of the claimant. In

other words the onus of proof of "wrongful act", "neglect" or "default" is not

on the claimant. The matter however does not end with this. A perusal of

sub-section (4) of Section 140 of the Act further reveals, that the claim of

compensation under Section 140 of the Act cannot be defeated because of

any of the "fault" grounds ("wrongful act", "neglect" or "default"). This

additional negative bar, precluding the defence from defeating a claim for

reasons of a "fault", is of extreme significance, for the consideration of the

issue in hand. It is apparent, that both sides are precluded in a claim

raised under Section 140 of the Act from entering into the arena of "fault"

("wrongful act" or "neglect" or "default"). There can be no doubt, therefore,

26

that the compensation claimed under Section 140 is governed by the "no-

fault" liability principle.

13. In the second limb of the present consideration, it is necessary to

carry out a comparison between Sections 140 and 163A of the Act. For

this, Section 163A of the Act is being extracted hereunder:

"Section 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 authorized 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 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."

A perusal of Section 163(A) reveals that sub-section (2) thereof is in pari

materia with sub-section (3) of Section 140. In other words, just as in

27 Section 140 of the Act, so also under Section 163A of the Act, it is not

essential for a claimant seeking compensation, to "plead or establish", that

the accident out of which the claim arises suffers from "wrongful act" or

"neglect" or "default" of the offending vehicle. But then, there is no

equivalent of sub-section (4) of Section 140 in Section 163A of the Act.

Whereas, under sub-section (4) of Section 140, there is a specific bar,

whereby the concerned party (owner or insurance company) is precluded

from defeating a claim raised under Section 140 of the Act, by "pleading

and establishing", "wrongful act", "neglect" or "default", there is no such or

similar prohibiting clause in Section 163A of the Act. The additional

negative bar, precluding the defence from defeating a claim for reasons of

a "fault" ("wrongful act", "neglect" or "default"), as has been expressly

incorporated in Section 140 of the Act (through sub-section (4) thereof),

having not been embodied in Section 163A of the Act, has to have a

bearing on the interpretation of Section 163A of the Act. In our considered

view the legislature designedly included the negative clause through sub-

section (4) in Section 140, yet consciously did not include the same in the

scheme of Section 163A of the Act. The legislature must have refrained

from providing such a negative clause in Section 163A intentionally and

purposefully. In fact, the presence of sub-section (4) in Section 140, and

the absence of a similar provision in Section 163A, in our view, leaves no

28

room for any doubt, that the only object of the Legislature in doing so was,

that the legislature desired to afford liberty to the defence to defeat a claim

for compensation raised under Section 163A of the Act, by pleading and

establishing "wrongful act", "neglect" or "default". Thus, in our view, it is

open to a concerned party (owner or insurer) to defeat a claim raised

under Section 163A of the Act, by pleading and establishing anyone of the

three "faults", namely, "wrongful act", "neglect" or "default". But for the

above reason, we find no plausible logic in the wisdom of the legislature,

for providing an additional negative bar precluding the defence from

defeating a claim for compensation in Section 140 of the Act, and in

avoiding to include a similar negative bar in Section 163A of the Act. The

object for incorporating sub-section (2) in Section 163A of the Act is, that

the burden of pleading and establishing proof of "wrongful act", "neglect" or

"default" would not rest on the shoulders of the claimant. The absence of a

provision similar to sub-section (4) of Section 140 of the Act from Section

163A of the Act, is for shifting the onus of proof on the grounds of

"wrongful act", "neglect" or "default" onto the shoulders of the defence

(owner or the insurance company). A claim which can be defeated on the

basis of any of the aforesaid considerations, regulated under the "fault"

liability principle. We have no hesitation therefore to conclude, that

Section 163A of the Act is founded on the "fault" liability principle.

29

14. There is also another reason, which supports the aforesaid

conclusion. Section 140 of the Act falls in Chapter X of the Motor Vehicles

Act, 1988. Chapter X of the Motor Vehicles Act, 1988 is titled as "Liability

Without Fault in Certain Cases". The title of the chapter in which Section

140 falls, leaves no room for any doubt, that the provisions under the

chapter have a reference to liability "... without fault ...", i.e., are founded

under the "no-fault" liability principle. It would, however, be pertinent to

mention, that Section 163A of the Act, does not find place in Chapter X of

the Act. Section 163A falls in Chapter XI which has the title "Insurance of

Motor Vehicles Against Third Party Risks". The Motor Vehicles Act, 1988

came into force with effect from 1.7.1989 (i.e., the date on which it was

published in the Gazette of India Extraordinary Part II). Section 140 of the

Act was included in the original enactment under chapter X. As against

the aforesaid, Section 163A of the Act was inserted therein with effect from

14.11.1994 by way of an amendment. Had it been the intention of the

legislature to provide for another provision (besides Section 140 of the

Act), under the "no-fault" liability principle, it would have rationally added

the same under Chapter X of the Act. Only because it was not meant to

fall within the ambit of the title of Chapter X of the Act "Liability Without

Fault in Certain Cases", it was purposefully and designedly not included

thereunder.

30

15. The heading of Section 163A also needs a special mention. It

reads, "Special Provisions as to Payment of Compensation on Structured

Formula Basis". It is abundantly clear that Section 163A, introduced a

different scheme for expeditious determination of accident claims.

Expeditious determination would have reference to a provision wherein

litigation was hitherto before (before the insertion of Section 163A of the

Act) being long drawn. The only such situation (before the insertion of

Section 163A of the Act) wherein the litigation was long drawn was under

Chapter XII of the Act. Since the provisions under Chapter XII are

structured under the "fault" liability principle, its alternative would also

inferentially be founded under the same principle. Section 163A of the Act,

catered to shortening the length of litigation, by introducing a scheme

regulated by a pre-structured formula to evaluate compensation. It

provided for some short-cuts, as for instance, only proof of age and

income, need to be established by the claimant to determine the

compensation in case of death. There is also not much discretion in the

determination of other damages, the limits whereof are also provided for.

All in all, one cannot lose sight of the fact, that claims made under Section

163A can result in substantial compensation. When taken together the

liability may be huge. It is difficult to accept, that the legislature would

fasten such a prodigious liability under the "no-fault" liability principle,

31

without reference to the "fault" grounds. When compensation is high, it is

legitimate that the insurance company is not fastened with liability when

the offending vehicle suffered a "fault" ("wrongful act", "neglect", or

"defect") under a valid Act only policy. Even the instant process of

reasoning, leads to the inference, that Section 163A of the Act is founded

under the "fault" liability principle.

16. At the instant juncture, it is also necessary to reiterate a conclusion

already drawn above, namely, that Section 163A of the Act has an

overriding effect on all other provisions of the Motor Vehicles Act, 1988.

Stated in other words, none of the provisions of the Motor Vehicles Act

which is in conflict with Section 163A of the Act will negate the mandate

contained therein (in Section 163A of the Act). Therefore, no matter what,

Section 163A of the Act shall stand on its own, without being diluted by any

provision. Furthermore, in the course of our determination including the

inferences and conclusions drawn by us from the judgment of this Court in

Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra),

as also, the statutory provisions dealt with by this Court in its aforesaid

determination, we are of the view, that there is no basis for inferring that

Section 163A of the Act is founded under the "no-fault" liability principle.

Additionally, we have concluded herein above, that on the conjoint reading

32

of Sections 140 and 163A, the legislative intent is clear, namely, that a

claim for compensation raised under Section 163A of the Act, need not be

based on pleadings or proof at the hands of the claimants showing

absence of "wrongful act", being "neglect" or "default". But that, is not

sufficient to determine that the provision falls under the "fault" liability

principle. To decide whether a provision is governed by the "fault" liability

principle the converse has also to be established, i.e., whether a claim

raised thereunder can be defeated by the concerned party (owner or

insurance company) by pleading and proving "wrongful act", "neglect" or

"default". From the preceding paragraphs (commencing from paragraph

12), we have no hesitation in concluding, that it is open to the owner or

insurance company, as the case may be, to defeat a claim under Section

163A of the Act by pleading and establishing through cogent evidence a

"fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore,

doubtless, that Section 163A of the Act is founded under the "fault" liability

principle. To this effect, we accept the contention advanced at the hands

of the learned counsel for the petitioner.

17. Having recorded our conclusions herein above, it is essential for us

to determine whether or not the compensation awarded to the

claimants/respondents in the present controversy, by the Tribunal, as also,

33

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 the award. The Tribunal framed the following issues for

consideration :

"1) Who are responsible for the accident?

2) What, if any is the compensation due and who are

liable?

3) What is the annual income of the deceased?

4) Whether the OP (2280/00) is maintainable under

Section 168A of the N.V. Act?"

It is difficult to understand the true purport of the first issue framed by the

Tribunal. A person may be "responsible" for an act, yet he may not be

"negligent". Illustratively, a child who suddenly runs onto a road may be

"responsible" for an accident. But was the child negligent? The answer to

34

this question would emerge by unraveling the factual position. A child

incapable of fending for himself would certainly not be negligent, even if he

suddenly runs onto a road. The person in whose care the child was, at the

relevant juncture, would be negligent, in such an eventuality. The driver at

the wheels at the time of the accident is responsible for the accident, just

because he was driving the vehicle, which was involved in the accident.

But considering the limited facts disclosed in the illustration can it be said

that he was negligent? Applying the limited facts depicted in the

illustration, it would emerge that he may not have been negligent.

Negligence is a factual issue and can only be established through cogent

evidence. Now the case in hand. In the present case also, the negligence

of Shijo shall have to be determined from the factual position emerging

from the evidence on record. Issue no.(1) framed by the Tribunal

therefore, may not provide an appropriate answer to the issue in hand.

Besides there being no issue framed by the Tribunal for adjudicating

"negligence" in the accident under reference, it is also clear that the

petitioner-Insurance Company did not seek the courts intervention on such

a plea. It is also relevant to mention, that no witness was produced by the

petitioner-Insurance Company before the Tribunal. During the course of

hearing, learned counsel for the petitioner only relied upon the conclusions

drawn by the Tribunal on issue no.(1). For this, our attention was drawn to

35

paragraph 8 of the award rendered by the Tribunal which is being

extracted hereunder :

"8. Issue No.1 : This issue arises now only in O.P. 2281/2000.

PW1 admitted that she has seen the accident. Exhibits A1 to A5

and Exhibit A10 are records from the connected criminal case

charge sheeted under Sections 279, 337 and 304A, IPC as against

the deceased Shijo. They are the copies of the FIR, post mortem

certificate, scene mahazor, report of inspection of the vehicle, final

report and the inquest report, respectively. In the absence of contra

evidence I find that the deceased Shijo was responsible for the

accident."

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

36

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

37

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.

18. 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."

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.

38

19. 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,

39

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.

20. For the reasons recorded herein above, we find no merit in the

instant Special Leave Petition. The same is, accordingly, dismissed.

..................................J.

(Asok Kumar Ganguly)

..................................J.

(Jagdish Singh Khehar)

New Delhi;

November 23, 2011.