The Sikkim High Court dismissed an appeal of an Insurance Company and held the same to be not maintainable in the absence of a specific Order of the MACT under Section 170 of the Motor Vehicles Act, 1988.

The High Court held that where there is no specific Order of the MACT under Section 170 of the MV, the grounds for the Appeal are to be confined to the parameters prescribed in Section 149(2).

The Single-Judge Bench of Justice Meenakshi Madan Rai said,“The Orders of the MACT, it is trite to mention, consequently bear no indication of Section 170 of the MV Act Petition having been filed or Orders made thereto thereby lending a closure to this point”, it added.

Advocate Sushant Subba represented the Appellant while Advocate Sudesh Joshi represented the Respondents.

In this case, a Maruti Suzuki vehicle, in which the respondent’s father was travelling with other occupants was hit by boulders, that rolled down the hillside, after being activated by the occurrence of an earthquake at that time. Consequently, the vehicle careened off the road into the river, flowing below, in which all the occupants, except one Nim Lhamu Sherpa, were swept away by the river. Eleven years passed since the date of the accident and as the bodies remained unrecovered it was presumed that they all perished in the accident.

The Respondent, son of the deceased, filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (MV Act) before the Motor Accidents Claims Tribunal(MACT). The cause of the accident was stated to be the vehicle driven at high speed because the driver could not control it when the earthquake occurred. Another respondent in this case was the owner of the vehicle who contested the Claim Petition on the grounds that the vehicle was properly maintained and mechanically fit to be in service at the time of the accident, when it was being driven by a qualified driver, with a valid and effective driving licence. The insurance policy and all other documents of the vehicle were also valid.

The Appellant Insurance Company, contested the claim and denied its liability to make good the compensation on grounds that, rash and negligent driving had not been proved nor was there a death certificate from the concerned authority to establish the death of the deceased in the accident. In the impugned Judgment, the MACT concluded that the age of the deceased undisputedly was forty-six years and being an able-bodied person, he was earning Rs 10,000 per month. A compensation of Rs 14,40,000 was granted.

The Appellant-insurance Company submitted that the accident was the result of vis major and beyond human control. Besides, the Claimant failed to establish the rash and negligent act of the driver. Thus, the Appellant was not liable to pay the compensation claimed. It was also argued that the Respondent-son ought to have filed a Claim Petition under Section 163A of the MV Act and not under Section 166 of the MV Act.

On the other hand, the Respodnent-claimant contended that the Appeal was not aintainable as no steps were taken by the Appellant under Section 170 of the MV Act, before the MACT to enable it to assail the Judgment of the MACT. It was further argued that the rash and negligent act of the driver has been established by res ipsa loquitor. Rash and negligent driving in any event is to be proved by a preponderance of probability and not by proof beyond reasonable doubt.

One of the issues raised before the Bench was whether a new ground be urged in Appeal when it was not raised before the MACT. Referring to the judgment of the Apex Court in Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. (2000), the Bench held, “...it needs no reiteration that a new ground cannot be urged in Appeal when it was not raised at all before the Learned MACT. Hence, the argument pertaining to vis major being a new ground in Appeal, is not sustainable in law and is accordingly disregarded.”

The Bench further relied upon the judgment in Nicolletta Rohtagi and Others (2002) wherein it has been observed that unless the conditions specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right to Appeal to challenge the award on merits. Even if no Appeal is preferred by the insured, it is not permissible for an insurer to file an Appeal questioning the quantum of compensation as well as the findings regarding negligence or contributory negligence of the offending vehicle.

On a meticulous perusal of the entire records, the Bench observed that no Petition under Section 170 of the MV Act was filed by the Insurance Company before the MACT. “Thus, it is no more res integra that where there is no specific Order of the MACT under Section 170 of the MV, the grounds for the Appeal are to be confined to the parameters prescribed in Section 149(2) of the MV Act”, the Bench said.

The suggestion offered by the Appellant that the Claim Petition ought to have been filed under Section 163A of the MV Act instead of Section 166 of the MV Act was held to be erroneous. “Indeed, in a claim for compensation under subsection(1) of Section 163A of the MV Act the Claimant is not required to plead or establish that death was due to the wrongful act or neglect or default of the owner”, it said.

It was also clarified by the Bench that the reason for the insertion of Section 163A to the MV Act, 1988, cannot be lost sight of which was to grant relief to a specified section of society, whose income range is limited to the extent of ₹ 40,000 only, per annum, which was not the case herein as the deceased was evidently earning ₹ 10,000 only, per month.

“In view of the detailed discussions that have emanated hereinabove, I have reached a finding that the Appeal is not maintainable in the absence of a specific Order of the MACT under Section 170 of the MV Act, 1988, allowing the Appellant to raise all grounds in Appeal”, the Bench held while dismissing the Appeal.

Cause Title: National Insurance Company Limited v. Nim Tshering Sherpa and Another (Case No. MAC App. No.07 of 2024)

Appearance:

Appellant: Advocates Sushant Subba, Madan Kumar Sundas

Respondent: Advocate Sudesh Joshi, Legal Aid Counsel K. B. Chettri

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