No Requirement To Establish Death Was Due To Wrongful Act Of Vehicle Owner In Claim U/S 163A Of Motor Vehicles Act: Sikkim High Court
The Sikkim High Court recently dismissed an appeal filed by an insurance company contending that the accident was the result of vis major and beyond human control and therefore the said company is not liable to pay the compensation to the claimant, on the ground that in a claim for compensation under of Section 163A(1) of the said Act the claimant is not required to plead or establish that...
The Sikkim High Court recently dismissed an appeal filed by an insurance company contending that the accident was the result of vis major and beyond human control and therefore the said company is not liable to pay the compensation to the claimant, on the ground that in a claim for compensation under of Section 163A(1) of the said Act the claimant is not required to plead or establish that death was due to the wrongful act or neglect or default of the owner.
The single judge bench of Justice Meenakshi Madan Rai further observed that where there is no specific order of the Motor Accident Claims Tribunal (MACT) under Section 170 of the Motor Vehicles Act, 1988 (MV Act), the grounds for the Appeal are to be confined to the parameters prescribed in Section 149(2) of MV Act.
The brief facts of the case are that on September, 18, 2011, a Maruti Suzuki Taxi vehicle driven by one Bikash Pradhan in which, the father (deceased) of the Respondent No.1 was travelling with other occupants was hit by boulders, that rolled down the hillside, after being activated by the occurrence of an earthquake at that time. Consequently, the vehicle careened off the road into the river, flowing below, in which all the occupants, except one Nim Lhamu Sherpa, were swept away by the river.
Eleven years had passed since the date of the accident and as the bodies remained unrecovered it was presumed that they all perished in the accident. The Respondent No.1, the son of the deceased filed a Claim Petition under Section 166 of the MV Act before the MACT, Gangtok.
The cause of the accident was stated to be the vehicle driven at high speed as a consequence of which the driver could not control it when the earthquake occurred and thus, the vehicle was hit by the rolling boulders.
Respondent No.2, the owner of the vehicle contested the Claim Petition on grounds that the vehicle was properly maintained and mechanically fit to be in service at the time of the accident, when it was being driven by a qualified driver, with a valid and effective driving licence.
The Appellant Insurance Company, contested the claim and denied its liability to make good the compensation on grounds that, rash and negligent driving had not been proved nor was there a death certificate from the concerned authority to establish the death of the deceased in the accident.
The MACT vide its order dated October 17, 2023, observed that in a case of this nature, roving enquiry to prove rashness and negligence on the part of the driver is not required. It was further observed by the Tribunal that prima facie, there was rash and negligent driving on the part of the driver, which resulted in the accident and consequential death of the deceased. The MACT awarded a compensation of Rs. 14,40,000/- in favour of the Respondent No. 1.
The Insurance Company (appellant) filed the present appeal before the High Court challenging the impugned award passed by the MACT contending that the Claimant failed to establish the rash and negligent act of the driver.
It was further argued that the Respondent No.1 ought to have filed a Claim Petition under Section 163A and not under Section 166 of the MV Act.
On the other hand, the Counsel appearing for the Respondent No. 1 submitted that the appeal is not maintainable as no steps were taken by the Appellant under Section 170 of the MV Act, before the MACT to enable it to assail the judgment of the MACT on all grounds as raised herein. It was argued that in the absence of an order under Section 170 of the Act, the appeal is to be confined to the statutory defences as provided under Section 149(2) of the MV Act.
It was further contended that the point of vis major which is being agitated in appeal, was in fact never raised before the MACT and new grounds cannot be urged in appeal.
Considering the submissions made by the parties, the Court framed the follow questions for consideration:
- Can a new ground be urged in Appeal when it was not raised before the MACT?
- Is the Appeal maintainable sans an application and consequently an Order under Section 170 of the MV Act, 1988, to enable the Appellant to raise grounds in Appeal beyond those prescribed under Section 149(2) of the MV Act?
The Court noted that the question of vis major was never raised by the Appellant before the MACT. While relying upon the judgments of the Supreme Court in Rajesh Kumar alias Raju v. Yudhvir Singh and Another (2008) 7 SCC 305 and Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. (2000) 2 SCC 734, the Court observed that a new ground cannot be urged in Appeal when it was not raised at all before the MACT. Thus, the Court disregarded the argument of the appellant pertaining to vis major being a new ground in Appeal, as not sustainable in law.
The Court further relied upon the judgment of the Apex Court in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Others (2002) 7 SCC 456 wherein it was observed that the statutory defences which are available to the insurer to contest a claim are confined to those provided in Section 149(2) of the MV Act and not more and for that reason, if an insurer is to file an Appeal, the challenge in the Appeal would be limited to only those grounds.
It was further noted by the Apex Court in the said judgment that unless the conditions specified in Section 170 of the MV Act are satisfied, an insurance company has no right to Appeal to challenge the award on merits.
Thus, the Court in the present case observed:
“…..it is no more res integra that where there is no specific Order of the MACT under Section 170 of the MV, the grounds for the Appeal are to be confined to the parameters prescribed in Section 149(2) of the MV Act.”
The Court noted that no such petition under Section 170 of the MV Act, was filed by the appellant before the MACT.
“The Orders of the Learned MACT, it is trite to mention, consequently bear no indication of Section 170 of the MV Act Petition having been filed or Orders made thereto thereby lending a closure to this point,” the Court noted.
It was further observed by the Court that in a claim for compensation under sub-section(1) of Section 163A of the MV Act the Claimant is not required to plead or establish that death was due to the wrongful act or neglect or default of the owner.
“In view of the detailed discussions that have emanated hereinabove, I have reached a finding that the Appeal is not maintainable in the absence of a specific Order of the MACT under Section 170 of the MV Act, 1988, allowing the Appellant to raise all grounds in Appeal,” the Court said.
Case Title: National Insurance Company Limited v. Nim Tshering Sherpa & Another
Case No.: MAC App. No. 07 of 2024