- (1.) HEARD learned counsel for the appellant. This is an Appeal by the insurer of the Bus, bearing registration number, DL-1-TA-5488, challenging the order dated 27th February, 2013, passed by the Motor Accident Claims Tribunal, Bulandshahr by which the Tribunal has awarded a compensation at Rs.3,24,500.
(2.) IT was the case of the claimants that on 19.12.2010, at 06:00 AM when the deceased Smt. Kusum was returning to her home alongwith her husband, Vipin Kumar, after attending a marriage from Village Dautai, on a motorcycle, bearing registration number, UP-13-N-5907, driven by her husband, on Garh-Syana Road,? ahead of? Village Dhara, Police Station, Bahadurgarh, District Ghaziabad, the motorcycle was hit by the Bus, bearing registration number, DL-1-PA-5488.? In the said accident, both, Smt. Kusum and Vipin Kumar, died on the spot.? The first information report was lodged on the same day.? The chargesheet has been submitted against the driver of the Bus. Learned counsel for the appellant submitted that though the claim petition was filed under Section 163-A of the Motor Vehicles Act, 1988, but in the absence of any negligence or fault on the part of the driver of the bus, the owner of the bus cannot be held liable to pay the compensation.? The reliance is placed on the decision of the Apex Court in the case of National Insurance Company Ltd. vs. Sinitha and others, reported in 2012 (1) TAC 234 (SC).? He submitted that the accident occurred on the middle of the road and there? was a headon collision due to? a contributory negligence on the part of the driver of the bus as well as the deceased, Vipin Kumar, who was driving the motorcycle, but no benefit of the contributory negligence has been given by the Tribunal.? It is further submitted that the deceased, Kusum, was an Anganbari Karyakarti and as per the own admission was getting Rs.850/= per month as honorarium, therefore, the income assessed at Rs.2,500/= per month by the Tribunal is excessive. I have perused the impugned order and considered the submission. I do not find substance in the argument of learned counsel for the appellant.
(3.) THE Apex Court in the case of? National Insurance Company Ltd. vs. Sinitha and others (supra) has held that the object for incorporating? sub-section (2) of Section 163-A of the Act is that the burden of pleading and establishing proof of 'wrongful act', 'neglect' or 'default' would not rest on the shoulders of the claimant.? The burden shifts on the owner or the insurance company to prove 'wrongful act', 'neglect' or 'default'.? The claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the 'fault' liability principle. It has been further held that Section 163-A of the? Act is founded on? the "fault" liability principle.? The observations made by the Apex Court in the said judgment runs as follows: ".......In our considered view the legislature designedly included the negative clause through sub-section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163-A of the Act.? The legislature must have refrained from providing such a negative clause in Section 163-A intentionally and purposefully.? In fact, the presence of sub-section (4) in Section 140, and the absence of a similar provision in Section 163-A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163-A of the Act, by pleading and establishing "wrongful act", "neglect" or "default".??? Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163-A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or default".... In view of the aforesaid decision of the Apex Court, the burden to prove 'wrongful act', 'neglect' or 'default' was not on the claimant and in case if the owner of the vehicle or the insurance company intended to defeat the claim of the claimants, the burden lies upon them to prove that there was no 'wrongful act', 'neglect' or 'default' on their part, which in the present case, appellant failed to prove.? The Tribunal observed that? the eye witnesses in the statements stated that the motorcycle was moving on its left side while the Bus went towards its right side and collided with the motorcycle.? The Tribunal further observed that the site plan prepared by the Police on the day of the accident reveals that the driver of the bus gone towards its right side and hit the motorcycle, which was coming from the opposite direction and was moving on its left side. The evidences available on the record reveals that there was negligence on the part of the driver of the bus and as such the owner of the bus and the insurance company, both, failed to establish that there was no 'wrongful act', 'neglect' or 'default' on their part.? Thus, the Tribunal has rightly held the owner of the vehicle liable for payment of the compensation awarded to be indemnified by the appellant.? ;