- (1.) The present appeal has been directed against the award dated 15.11.2013 passed by the Motor Accident Claims Tribunal, Rewari (in short, 'the Tribunal') whereby the application filed by the claimant for grant of compensation under Section 166 of the Motor Vehicles Act, 1988 (in short, 'the Act') has been dismissed. Subhash, the injured victim, preferred an application for grant of compensation on the premise that on 26.12.2010 at about 11.00 a.m., he was supplying Bajra Pooli to the thresher attached with tractor No. HR-36-M 0575 owned by his father and his left hand got entangled in the thresher (machine). He was immediately taken to Dr. Atam Parkash Hospital, Rewari where he was operated upon for traumatic amputation of the hand at wrist level.
(2.) The learned Tribunal while deciding issue Nos. 2 to 4 rejected claim of the applicant/appellant for the reasons recorded in paras 19 to 26. A relevant extract from paras 19 to 26 is reproduced hereunder for ready reference: "19. This is a petition under Section 166 of the Motor Vehicles Act which pre-supposes a vehicular accident due to fault/negligence of a person other than the claimant himself. The case of the petitioner is that while he was operating the thresher, attached to the tractor, his hand got entangled therein as a result of which it had to be amputated. No negligence is attributed to any body. Hence, the question is as to whether the petitioner under Section 166 of the Motor Vehicles Act is maintainable? 20. To bring his case within the provisions under Section 166 of the Act, learned Counsel for the petitioner places reliance upon New India Assurance Company Limited v. Gulab Chand Chorasya and Others,, 2011 1 TAC 577; Oriental Insurance Company Limited v. Manorama Devi and Others, 2012 2 ACC 631 and National Insurance Company Limited v. Meera and Others, 2010 1 ACC 333. 21. I have gone through these pronouncements carefully. In New India Assurance Company Limited v. Gulab Chand Chorasya's case , it was held that if a driver makes a claim against the owner who was insured, then the entitlement of proceed against his owner through the provisions of Section 166 of the Motor Vehicles Act will not extended to a situation where the driver himself was tortfeasor. However, it the accident arises out of a situation where the driver himself was not at fault and he could not be said to be a tortfeasor, then the proceedings against his own employer would not be barred under the provisions of Section 166 of the Motor Vehicles Act. This judgment will not be applicable to the facts in hand. In that case, the driver of the truck was an employee of the insured. He was found to be not at a fault as the accident had arisen when a cow had darted across the road and when the driver tried to save the cow by taking a turn, the vehicle fell outside the road and capsized. The Hon'ble High Court held that the representatives of the driver had, by virtue of Section 167 of the Motor Vehicles Act, option to claim compensation either under the Motor Vehicles Act or Workmen's Compensation Act. In the instant case, the petitioner is not an employee of the insured. He is his son. Therefore, option under Section 167 of the Motor Vehicles Act is not available to him. 22. In Oriental Insurance Company Limited v. Manorama Devi's case , the driver, due to his rash driving, lost control of the truck and it hit against a tree resulting in his death. His legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act. Since, additional premium had been paid covering the risk of driver, the Insurance Company was held liable to indemnify the insured against his legal liability under the Workmen's Compensation Act or Fatal Accidents Act or common law. This judgment of Hon'ble High Court of Chhattisgarh is not applicable to the case in hand in view of the law laid down by our own Hon'ble High Court in New India Assurance Company Limited v. Gulab Chand Chorasya's case , for the sole reason that the truck driver himself was tortfeasor and, hence, could not maintain petition under Section 166 of the Act. 23. In National Insurance Company Limited v. Meera's case , the deceased was employed with the insured as agricultural labour. In the process of thrashings of the crop he got entangled in the thresher as a result of which he died. It was held that where the tractor is insured and victim is a third party, the Insurance Company could not escape its liability. In the instant case, the victim is not a third party, but the son of the insured himself. 24. The fact remains that the petitioner herein is the son of the insured. He cannot be treated as an employee as admitted by RW1 Sarjeet. Therefore, it is not a third party. He stepped into the shoes of the owner/insured. Therefore, option under Section 167 of the Motor Vehicles Act is not available to him and as such, the petition under Section 166 of the Motor Vehicles Act is not maintainable. 25. The Tribunal could have suo motu treated the petitioner to be one under Section 163A of the Motor Vehicles Act had the petitioner been a third party, but he being the son of the insured even that may not be possible. 26. In view of the law laid down by the Hon'ble Supreme Court in Oriental Insurance Company Limited v. Rajni Devi and Others, 2009 1 ACC 297, Section 163A of the Motor Vehicles Act cannot be said to have any applicability in regard to the accident where the owner of the motor vehicle himself is involved and the accident did not involve the motor vehicle other than the one which he was driving/using."
(3.) Counsel for the appellant contends that even if the appellant was a tortfeasor, it cannot be said that the claim is not maintainable. For this purpose, he has referred to judgment of this Court in New India Assurance Company Limited v. Gulab Chand Chorasya and Others,, 2011 1 TAC 577.;