- (1.) We have heard the learned counsel appearing for the appellant insurance company. In the first appeal from order under section 173 of Motor Vehicles Act, 1988 the claimants-appellants are aggrieved by the judgment of the Motor Accidents Claims Tribunal/Additional District Judge, Court No. 11, Kanpur Nagar dated 29.9.2012, by which the Motor Accident Claim Petition No. 492 of 2011 (Raj Kumari Chaurasia v. New India Assurance Co. Ltd.) has been dismissed on the ground that on the facts, the claim under section 163-A of the Motor Vehicles Act, 1988 was not maintainable.
(2.) On 20.12.2009, at about 4-5 p.m., when the deceased was driving his motor cycle, travelling to Safipur, the motor cycle slipped due to which he lost balance and fell into a ditch. He was seriously injured and was admitted to Primary Health Centre from where he was taken to Hallet Hospital and thereafter to Madhuraj Nursing Home where he died on 13.1.2010 after about 23 days. The medical prescription disclosed the cause of death as 'Cardio Pulmonary Arrest'. The cause of death was not the injuries suffered by him for which he was admitted to the hospital. The dead body was not subjected to post-mortem to ascertain the cause of death to establish that the death was caused due to injuries.
(3.) In National Insurance Co. Ltd. v. Sinitha, 2012 ACJ 1 ), it has been held by the Supreme Court that under section 163-A the liability of the insurance company is also a fault liability in which the deceased has to establish the fault of the offending vehicle. In the present case, the motor cycle driven by the deceased did not meet with an accident with any other vehicle nor the deceased can be said to be a third party in the accident for making a claim under section 163-A or under section 166 of the Motor Vehicles Act. 1988.;