RANJAN GOGOI,J. - (1.) Unable to agree with the reasoning and the conclusion of a two judge bench of this Court in National Insurance Company Limited v. Sinitha and others, [(2012) 2 SCC 356] a coordinate bench of this Court by order dated 29th October, 2013 has referred the instant matter for a resolution of what appears to be the following question of law. "Whether in a claim proceeding under Section 163 A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") it is open for the Insurer to raise the defence/plea of negligence?"
(2.) A second question as to what would be the true scope and meaning of the provisions contained in Section 170 of the Act more specifically as set out in Queries (iii) to (v) in paragraph 10 of the report of United India Insurance Company Limited v. Shila Datta and others, [(2011) 10 SCC 509], also arises. However, the aforesaid Question stands referred to a Larger Bench in Shila Datta(supra) itself. We are told that answers to the questions referred are awaited. In view of the above, we would be required to answer only the first question arising in the reference which has been set out herein above.
(3.) In Sinitha's case (supra), a two judge bench of this Court understood the scope of Section 163A of the Act to be enabling an Insurer to raise the defence of negligence to counter a claim for compensation. The principal basis on which the conclusion in Sinitha's case (supra) was reached and recorded is the absence of a provision similar to sub-section (4) of Section 140 of the Act in Section 163A of the Act. Such absence has been understood by the Bench to be a manifestation of a clear legislative intention that unlike in a proceeding under Section 140 of the Act where the defence of the Insurer based on negligence is shut out, the same is not be the position in a proceeding under Section 163A of the Act.;