By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellants – original claimant has challenged the judgment and order dated 25th February 2010 passed by the learned Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar in MAC Petition No.310 of 2010 whereby the Tribunal has dismissed the claim petition. 2 The short facts of the present appeal are that on the date of the incident i.e. on 18th February 2007 the deceased Dhavalkumar was going travelling by a motor cycle towards Ahmedabad from Idar. One Alpeshbhai was sitting as a pillion rider. It is the case of the claimants that when they reached Koba Circle near Sughad Patiya, at that time, a cow came on the road suddenly due to which the motorcycle hit a jeep. Due to the said impact deceased Dhavalkumar fell down on the road and sustained fatal injuries. The claimant, wife of the deceased, therefore, filed claim petition claiming the compensation of Rs.2,25,000.
3 The Tribunal relying upon the decision of the Ningamma And Another v. United India Insurance Company Limited, (2009) 13 SCC 710 has dismissed the claim petition. The claimant, therefore, filed the present appeal.
4 Heard learned counsel for the appellant and perused the record.
5. Mr Hakim, learned counsel for the appellant has submitted that the Tribunal has committed an error in not considering that the claim of the appellant was under Section 163A of the Motor Vehicles Act and therefore the same required to be allowed.
5.1 He has also further submitted that the claimant is entitled to get at least contractual amount of Rs.1 lakh and in support of his contention has placed reliance upon the decision of the Supreme Court in the case of Rajani Dave v. Oriental Insurance Company, (2008) 5 SCC 736.
5.2 Mr Hakim has next contended that sicne the relationship between the deceased and the owner has not been established, nor the capacity in which he was riding the vehicle has not been brought out, it was open for the insurance company to defeat the claim for compensation raised by the claimants and in view of the observation made by the Apex Court in the case National Insurance Company Ltd. Versus Sinitha & Ors. reported in (2012) 2 SCC 2 in paragraph 43 the matter is required to be remanded back to the Tribunal.
5.3 Mr Hakim next contended that even in the case of Ningamma (supra) the Honourable Apex Court the Apex Court observed as under:-
“34. Undoubtedly, Section 166 of the MVA deals with “Just Compensation” and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting “Just Compensation” in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty bound and entitled to award “Just Compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not.
35. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court. While entertaining the appeal, no effort was made by the High Court to deal with the aforesaid issues, and therefore, we are of the considered opinion that the present case should be remanded back to the High Court to give its decision on the aforesaid issues. The High Court was required to consider the aforesaid issues even if it found that the provision of Section 163-A of MVA was not applicable to the facts and circumstances of the present case. Since all the aforesaid issues are purely questions of fact, we do not propose to deal with these issues and we send the matter back to the High Court for dealing with the said issues and to render its decision in accordance with law.”
6. Before proceeding with matter, it is required to be considered that the claimant is wife of the original owner viz. Ramanbhai Keshavlal and mother of the deceased who was driving the vehicle. Learned counsel for the appellant submitted that relying upon the decision of the Ningamma (supra) the Tribunal has rejected the claim petition.
7. In the case of Ningamma (supra) the deceased therein the deceased was traveling on Hero Honda Motor Cycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motor cycle was proceeding on Ilkal- Kustagl, National Highway, a bullock cart proceeding ahead of the said motor cycle carrying iron-sheet suddenly stopped and consequently deceased-Ramappa who was proceeding on the said motor cycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Govt. Hospital, Ilkal, he died. The aforesaid motor cycle in which the deceased was traveling at the time of accident was insured with the Insurance Company, namely, the United India Insurance Co. Ltd. and the said motor cycle was owned by one Paranagouda. Wife of the deceased and Appellant No.2 – minor son of the deceased filed a claim petition under Section 163-A of Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal No. VI, Bijapur, Karnataka (in short ‘the Tribunal’) being M.V.C. No.
896/2000 praying for compensation of Rs. 8,10,000/- along with future interest etc. on the ground that at the time of accident the deceased was a healthy person, aged about 32 years and engaged in agriculture, earning Rs. 5,000/- per month and was the sole earning member in their family. The Tribunal held that in absence of definite and cogent proof of income, the income of the deceased was to be considered as Rs. 60/- per day as per the provisions of the Minimum Wages Act. Accordingly, the monthly income of the deceased was ascertained as Rs. 1,800/- and yearly income as Rs. 21,600/- from which 1/3 was to be deducted leaving thereby Rs. 14,400/- as the net income of the deceased. Since the age of the deceased was found to be in between 30 to 35 years, the relevant multiplier to be applied was ‘17’. Accordingly, the Tribunal under its award dated 09.02.2005 partly allowed the claim petition filed by the appellants holding that the said appellants are entitled to receive a total compensation amount of Rs. 2,59,800/- along with interest at the rate of 8% p.a. from the respondent – Insurance Company. Aggrieved by the said decision, the Insurance Company preferred an appeal being Miscellaneous First Appeal No. 4152/2005 before the High Court of Karnataka on the ground that the accident occurred due to the fault of the deceased and claim petition before the Tribunal was not maintainable as Section 163-A of the Act is not applicable unless there was another vehicle involved in the accident. The other ground of challenge was that the Tribunal erred in allowing the claim petition when the total income of the deceased was stated to be more than Rs. 40, 000/- per annum. The High Court by its judgment and order dated 08.08.2007 allowed the appeal holding that the claim petition before the Tribunal was not maintainable as there was no tort- feasor involved. It was also held that the claim Section 163-A of the Act was barred when the income of the claimant is stated to be above Rs. 40,000/- per annum. Consequently, the High Court set aside the judgment and award passed by the Tribunal and directed the appellants herein to refund the amount of compensation to the Insurance Company. The appellants preferred two Special Leave Petitions, one bearing No. 25497/2008 against the judgment and order dated 08.08.2007 passed in Miscellaneous First Appeal No. 4152/2005. The Supreme Court while disposing of the said appeals observed as under:-
“18. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the ‘third party’, and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.
“19. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon’ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof.
“20. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.
“21. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.”
In the present case deceased Dhavalkumar borrowed the motorcycle from his father, opponent No.1 and dashed with the with a cow due to which he sustained serious injuries. In the present case also there is no tortfeasor and deceased being son of the original owner he cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. The liability under section 163-A of the MVA is on the owner of the vehicle and therefore a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.
8 Further, the plea taken by the learned counsel for the appellant for remand of the matter cannot also be accepted as the said point was neither argued or dealt with by the Tribunal. If the matter is remanded on a point that was neither argued nor dealt with, it would amount to filling in the lacuna.
For the foregoing reasons, the appeal is devoid of any merits. No interference is called for. Hence, the same is dismissed with no order as to costs.
(K.S.Jhaveri, J.) *mohd