- (1.) THE instant appeal is directed against the judgment cum award dated 20.3.2013 passed by the learned Judge, Motor Accident Claims Tribunal, Rajsamand in MAC No.7/2010 whereby the claim application filed by the claimants respondents the legal heirs of Shankar Lal under Section 163A of the Motor Vehicles Act was allowed and the claimants respondents were awarded a total sum of Rs.4,31,000/ - on account of death of Shankar Lal in a vehicular accident.
(2.) SHANKAR Lal met with a road accident at the village Fiyawadi, PS Kunwariya on 24.6.2009 and expired. The motorcycle on which the deceased was going collided with a truck bearing registration No.RJ09.G.3268 insured by the appellant. Initially, the claim application was filed by the claimants the legal heirs of Shankar Lal under Section 166 of the Motor Vehicles Act. Subsequently, the same was amended to one under Section 163A of the Motor Vehicles Act. The learned Tribunal framed the usual issues for decision of the claim application. The appellant insurance company took a defence that the deceased hismelf was totally negligent and responsible for the accident as he was driving the motorcycle with three persons sitting thereupon and as such, the claimants were not entitled to claim and receive compensation. The Tribunal on the basis of the evidence led before it, recorded a finding that the vehicle insured by the appellant was parked on the road in the night time without any rear indicator or the other warning signs. Thus, the negligence and responsibility for causing the accident and was fixed cent percent on the truck driver. It was held that though the claimants in the claim application (being pursued under Section 163A of the Motor Vehicles Act) were not required to prove the negligence of the opposing vehicle, yet the material available on record was sufficeint to conclude that the negligence, which resulted into the accident was that of the driver of the vehicle insured by the appellant. Accordingly, the claim application was accepted as stated above. Hence, this appeal. Shri Anil Bachhawat learned counsel for the appellant insurance company places reliance on the decision rendered by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Sinitha & Ors. reported in 2012(1) ACJ Page -1 and submits that the word "any person" used in sub -clause (2) of Section 163A of the Act does not cover the deceased and therefore, no benefit can be availed by the claimants by prosecuting the application for compensation under Section 163A of the Motor Vehicles Act without first proving the negligence by the driver and owner of the insured vehicle.
(3.) PER contra, Shri A.K.Babel and Shri Rahul Bathi learned counsel appearing for the respondents claimants place reliance on the decision rendered by a Three Judges Bench of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni & Ors. Vs. United Insurance Co. Ltd. Baroda reported n AIR 2004 SC 2107 and urge that claim for compensation under Section 163A of the Act on structured formula is based on the principle of 'no fault liability'. They submit that whilst deciding the case of Sinitha (supra), the earlier Larger Bench decision of the Hon'ble Supreme Court in Deepal Girishbhai Soni's case was not brought to the notice of the Division Bench and thus, the judgment in Sinitha's case does not lay down a good law. They also rely on the decision of Hon'ble Supreme Court in the case of United India Insurance Co.Ltd. Vs.Sunil Kumar & Anr. reported in 2013 ACJ 2856 wherein also the same proposition as enunciated in Deepal Girishbhai Soni's case was reiterated.;