These Appeals have challenged (i) the judgment and award dated 3.10.2008 in MACP No. 189/2006 ; (ii) the judgment and award dated 6.10.2008 in MACP No.188/2006; and, (iii) the judgment and award dated 4.10.2008 in MACP No,.140/2006 passed by the learned Member, Motor Accident Claims Tribunal at Washim ( in short "the Tribunal") in Claim Petitions filed under section 163 of the Motor Vehicles Act, 1988 ( in short "the said Act").
2. Facts briefly mentioned are : In an accident which occurred on 17.3.2006 in the morning near Ansing Chowk in Washim Division of District Akola, while motor cycle No. MH37 : 9302 driven by Vishnu Maske from Wai to Ansing by which Gajanan Napte and Sayali, young girl aged 13 years, were also riding, were forcefully dashed by Tata Sumo vehicle No. MH 29L: 613 driven rashly and negligently and in a breakneck speed, resulting in death of Sayali, aged about 13 years and permanent disability to motor cyclist Vishnu Mhaske, aged 22 years and Gajanan Napte, aged 21 years.
3. The Tribunal awarded compensation as below : (i) To Gajanan Vasantrao Napte, a sum of Rs. 70,000/ with interest at the rate of 6 per cent per annum with effect from 14.8.2006 till payment (ii) To Vishnu Motiram Maske, a sum of Rs. 43,000/ with interest at the rate of 6 per cent per annum from 14.8.2006 till payment
(iii) Rs. 2,00,000/ Rupees two lakhs) with simple interest @ 8 per cent per annum till the date of satisfaction of the whole amount of award. The owner and insurer of the offending vehicle (Tata Sumo) were held jointly and severally liable to pay the compensation amount.
4. Mr W.G.Paunikar, the learned counsel for the appellant made reference to the ruling in Managing Director, T. N. State Transport Corporation vs. Abdul Salam and others : 2003 (2) TAC 103 (Mad) and contended that when three persons traveled on motor cycle contrary to provisions of statute, any unusual movement of pillion riders would make the driver of motor cycle to lose control hence victims must be held liable for 50% for contributory negligence and 50 % compensation ought to be deducted from award amounts.
5. It is the next contention of Mr. Paunikar, learned Advocate for appellant that insurer is not liable to pay compensation and to satisfy the award if policy of insurance is cancelled and all concerned were intimated. Reliance is placed upon Deddappa and others vs. Branch Manager , National Insurance Co.Ltd.: AIR 2008 SC 767.
6. Learned counsel for respondents also placed reliance upon the ruling of Deddappa and others and contended that u/s 163A of the said Act, victims or their dependents are awarded compensation on the basis of prestructured formula in second Schedule of the Act and legislature do not require the victims or their dependent from lower strata of the society to prove negligence of owner/driver of the vehicle in view of Section 163A (2) of the said Act. Learned counsel contended that in the facts and circumstances, therefore, ruling of contributory negligence which is with reference to claim applications filed under section 166 of the Act, is not attracted to a motor accident claim application filed under section 163A of the said Act which is special provision with overriding effect (beginning with nonobstante clause)
7. It is wellsettled by now that insurance contract is a contract of indemnity. Section 147 of the said Act requires owners of the motor vehicle to obtain insurance in relation to third parties. Section 149 of the Act imposed duty upon the insurer to satisfy judgment and award against the insured in respect of third party risks. Section 149 (2) of the said Act however, allows insurer to have a right to defend the claim if there is breach of any condition of the insurance policy. In case it is established that there was breach of insurance contract by owner of the vehicle then insurer may escape liability to pay compensation when exception under section 149 of the Act are attracted. To provide a speedy, expeditious remedy for victims under section 163A of the said Act special provision is enacted with a nonobstante clause. The owner of the motor vehicle of the authorized insurer is liable to pay adequate and rational compensation for death or permanent disablement arising from the accident which may be claimed by the victim or legal heirs of the victim. The claimant in such case, is exempted from requiring to plead or to establish that death of permanent disablement was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. Section 163A carves out an exception to the rule and, therefore, even if victims were at fault, they could sustain a claim and insurer cannot avoid liability. As observed in Deepak Girishbahai Soni vs. United India Insurance Co.ltd. 2004 ACJ 934 Section 163A is inserted by Act 54 of 1994 with overriding effect from 14.11.1994 to provide for a new pre determined structured formula for payment of adequate and rational compensation to road accident victims on the basis of age/ income of deceased on the person suffering permanent disablement to ensure speedy, expeditious disposal of such motor accident claim cases. By awarding adequate compensation to a section of victims who would require the compensation without waiting or without fighting any protracted litigation as the compensation to be awarded is required to be determined with reference to a structured formula without insisting upon pleading and proof that death or permanent disablement was due to any wrongful act or neglect or default of the owner or driver of the vehicle or vehicles concerned or any other person. (See Sec 163 A (2) of the Motor Vehicles Act). Thus, requirement of proving the negligence has been dispensed with and compensation is awarded once it is shown that accident arose out of use of motor vehicle resulted in death or permanent disablement in a claim against owner /insurer of the offending motor vehicle on the basis of structured formula in the second Schedule of the Act depending upon age and income of the victim. Section 163 A(2) is, thus, pari materia with section 140(2) of the Act. Even if insurer had dispute or doubt about his liability he has to pay first and may then recover from the owner or driver as the case may be, as held in National Insurance Co.Ltd. vs. Swarna Singh ( 2004 ) 3 SCC 297. During the execution proceedings in respect of the award, it is open for insurer to put forward this grievance as to liability of owner or driver as the case may be before the Tribunal concerned. Section 149 of the Act leads to conclusion that once assured prove that the accident is covered by compulsory insurance clause, it is for the insurer to prove that it comes within an exception. Therefore section 149 read with sec. 147 (5) of the Act obliges insurer first to satisfy judgment and award and then claim from owner or driver, as the case may be.
8. In view of the discussion as above, no infirmity is found in the impugned judgment and award. I do not find any merit in these appeals. All appeals are dismissed.