While substantiating that the initial burden would always rest on the claimants to prove the negligence of the driver of the offending vehicle, the Bombay High Court after finding that plenty of material establishes sole negligence of the deceased in the cause of the accident, held that in such case, claimants have no cause of action to raise claim invoking provision of section 166 of Motor vehicle Act.

The High Court held so while considering an appeal by the Insurance company (Appellant - original third respondent) challenging the award passed by the Motor Accident Claims Tribunal (MACT), whereby a claim petition filed by first to fifth respondent (original claimants) under Section 166 of the Motor Vehicle Act, 1988 came to be allowed and compensation of Rs.24,84,480/- has been awarded to respondents.

A Single Judge Bench of Justice S.G Chapalgaonkar observed that the claim under Section 166 of the Act for compensation can succeed only when claimants establish the negligence of the alleged offending vehicle driver in the cause of the accident based on the material placed into service before the MACT.

Advocate M. M. Ambhore appeared for the Appellant, whereas Advocate D. B. Pawar appeared for the Respondent.

The brief facts of the case are that claimants had approached the MACT under Section 166 of the Act raising the claim for compensation of Rs.1,00,00,000/- from the owners of both the vehicles involved in the accident and the insurer of Tavera car. The claimants contended that the car of the deceased Ashok was dashed against a road divider and went on the opposite strip of the road. There was a collision between two vehicles and the deceased suffered fatal injuries. Similarly, the driver of Tavera's car lost his life in the same accident. According to claimants, the driver of Tavera's car was responsible for the accident. Since the deceased was serving as a Police Constable and earning a salary of Rs.32,093/- per month, and the claimants were dependent on his income, compensation was sought from respondents i.e. owner and insurer of Tavera car, and the first respondent (owner of Swift car) proceeded ex-parte. The Tribunal recorded a finding on the issue of negligence holding both drivers equally responsible for the accident. Applying principles of contributory negligence, the Tribunal allowed the claim petition and directed the respondents to jointly and severally pay the compensation of Rs.24,84,480/- along with interest @ 9% p.a.

After considering the submission, the Bench found that an unfortunate accident occurred when a car driven by the deceased was toppled on a four-lane highway and crossed the road divider.

“It went on the other side strip of the road. The Tavera car proceeding from its side collided against the toppled car resulting in the death of inmates”, added the Bench.

The High Court observed that it is trite that the liability under the provisions of Section 166 of the Act is based on principles of tort, and the claimants have to establish the negligence of the respondents in the cause of the accident and consequential loss of life suffered by the victim.

The exception to this general rule is carved out under the provisions of 163-A of the Act, which entitles raising the claim without pleading and proof of negligence. Similarly, Section 140 of the Act prescribes compensation on no-fault liability. However, in a claim under Section 166 of the Act, the requirement of pleading and proof is not dispensed with either under statutory provisions or through the law of precedents”, added the Court.

The Bench further noted that the case of the claimant rests on the contents of the FIR, which shows that the offence has been registered against the deceased, and the charge sheet also shows that the deceased Ashok was charged for negligence.

The Bench also highlighted that evidence of one prosecution witness would not be material to decide the issue of negligence, as admittedly, she is not an eye witness and was deposed only based on information received from her through police papers.

“Pertinently, spot Panchnama shows that the accident occurred on a four-lane highway with a divider between two lines on each side of the road. The Swift car driven by the deceased, initially brushed into the road divider and then went from its side to the crossover road divider, then dashed to the Tavera car that was proceeding from its correct side. In these circumstances, it would be difficult to accept the contention of the claimants that the driver of Tavera car was anyway responsible for the accident”, added the Bench.

Accordingly, the High Court allowed the appeal, while setting aside the award passed by the MACT.

Cause Title: New India Assurance Company v. Jyoti and Ors.

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Bombay High CourtJustice S.G. Chapalgaonkar

Pankaj Bajpai