It is not necessary to establish that death was due to wrongful act of the 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 claiming that the accident was a result of vis major and beyond human control and, therefore, the said company is not obliged to pay compensation to the plaintiff, because in a claim for compensation under section 163A(1) of the said Act, the plaintiff is not obliged to allege or establish that the death was due to a wrongful act or the negligence or default of the owner.

The sole judge of Justice Meenakshi Madan Rai It 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 of appeal must be limited to the parameters prescribed in Article 149 (2) of the MV Law.

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 Respondent No.1 was traveling with other occupants was hit by rocks, which rolled downhill. below, after being activated by the occurrence of an earthquake at that time. Consequently, the vehicle veered off the road into the downward-flowing river, where all occupants except one Nim Lhamu Sherpa were swept away by the river.

Eleven years had passed since the date of the accident and since the bodies were still not recovered, it is presumed that they all died in the accident. Respondent No. 1, the son of the deceased, filed a claim petition under Section 166 of the MV Act before the MACT, Gangtok.

It was claimed that the cause of the accident was that the vehicle was traveling at high speed, due to which the driver was unable to control it when the earthquake occurred and therefore the vehicle was hit by the rolling rocks.

Defendant No.2, the owner of the vehicle contested the Claim Petition on the basis that the vehicle was in good condition and mechanically fit for service at the time of the accident, when it was being driven by a qualified, licensed driver. Valid and current driving license.

The appellant Insurance Company contested the claim and denied its responsibility to make the compensation effective, considering that reckless and negligent driving had not been proven nor was there a death certificate from the competent authority establishing the death of the deceased in the accident.

The MACT, in its order dated October 17, 2023, observed that in a case of this nature, a roving investigation is not required to prove recklessness and negligence on the part of the driver. The Court further observed that prima facieThere was reckless and negligent driving on the part of the driver, which caused the accident and subsequent death of the deceased. The MACT awarded compensation of Rs. 14,40,000/- in favor of Respondent No. 1.

The Insurance Company (appellant) filed the present appeal before the High Court challenging the impugned award made by the MACT, alleging that the Plaintiff failed to prove the reckless and negligent act of the driver.

It was further argued that Respondent No.1 should have filed a Claim Petition under Section 163A and not under Section 166 of the MV Act.

On the other hand, counsel appearing for Respondent No. 1 submitted that the appeal is not maintainable as the Appellant did not take any action under Section 170 of the MV Act, before the MACT to enable him to challenge the judgment of the MACT. . for all the reasons stated here. It was argued that in the absence of an order under section 170 of the Act, the appeal should be limited to the legal defenses provided under section 149(2) of the MV Act.

It was further argued that the point of vis major that is being raised on appeal, was in fact never raised before the MACT and no new grounds can be raised on appeal.

Considering the arguments of the parties, the Court formulated the following questions for consideration:

Can a new ground be invoked in the Appeal when it was not raised before the MACT?
Can the Appeal be maintained without an application and consequently an Order under Section 170 of the MV Act, 1988, enabling the Appellant to raise grounds in the Appeal beyond those prescribed under Section 149(2)? of the MV Law?

The Court noted that the question of vis major The appellant never raised this issue before the MACT. Although it is based on the rulings 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 734the Court observed that a new ground cannot be raised in an appeal when it was not raised at all before the MACT. Therefore, the Court rejected the appellant’s argument regarding vis major being a new reason for Appeal, because it is not sustainable in Law.

The Court further relied on the ruling of the Supreme Court in National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others (2002) 7 SCC 456 in which it was observed that the legal defenses that are available to the insurer to contest a claim are limited to those provided under Section 149(2) of the MV Act and no more and for that reason, whether an insurer is required to file an Appeal , the challenge in the Appeal would be limited only to those grounds.

The Supreme Court further noted in the said judgment that unless the conditions specified in Section 170 of the MV Act are fulfilled, 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 longer res integra that where there is no specific Order of the MACT under Section 170 of the MV Act, the grounds of Appeal must be limited to the parameters prescribed in Section 149(2) of the MV Act .”

The Court noted that the appellant did not file any such petition with the MACT under section 170 of the MV Law.

“It is trite to mention that the Orders of the Learned MACT, consequently, do not contain any indication that Section 170 of the MV Act Petition has been filed or that Orders have been issued in this regard, thereby bringing this point to an end. ”, noted the Court.

The Court further observed that in a claim for compensation under sub-section (1) of Section 163A of the MV Act, the plaintiff is not required to allege or establish that the death was due to any wrongful act or negligence or default of the owner .

“In view of the detailed discussions which have arisen above, I have come to the conclusion that the Appeal cannot be maintained in the absence of a specific Order from the MACT under Section 170 of the MV Act 1988, allowing the Appellant to raise all the reasons in Appeal,” the Court said.

Case title: National Insurance Company Limited v Nim Tshering Sherpa and another

Case No.: MAC application. No. 07 of 2024

Click here to read/download the order