TC-87

BEFORE THE HON’BLE MOTOR ACCIDENT CLAIM

TRIBUNAL

In the matter of-

STATE ……… [CLAIMANT]

v.

DILIPVEER SINGH & OTR. ……[ RESPONDENT]

COMPLAINT U/S 166 of MOTOR VEHICLE ACT

MEMORIAL ON BEHALF OF THE COMPLAINANT

INTRA DEPARTMENT MOOT COURT COMPETITION 2023

 INTRA DEPARTMENT MOOT COURT COMPETITION, 2023

TABLE OF CONTENTS

TABLE OF CONTENTS....................................................................................................2

LIST OF ABBREVIATIONS.............................................................................................4

INDEX OF AUTHORITIES..............................................................................................5

STATEMENT OF FACTS.................................................................................................7

STATEMENT OF JURISDICTION..................................................................................8

SUMMARY OF ARGUMENTS........................................................................................9

ISSUES / CHARGES.......................................................................................................10

ARGUMENTS ADVANCED..........................................................................................11
. a. Whether the accident dated 15.01.2022 amounts to a case of contributory
negligence?
17
. b. Whether the claimants are entitled to enhancement of compensation?
-- 18
. c. Whether the insurance company is liable to pay the amount of compensation to
the claimants?
… 19

2
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LIST OF ABBREVIATIONS

3
ABBREVIATIONS FULL FORM

U/S UNDER SECTION

OP OPPOSITE PARTY

W.R.T. WITH RESPECT TO

SC SUPREME COURT

SCC SUPREME COURT CASES

V. VERSUS

Art. ARTICLE

H.C. HIGH COURT

Hon’ble HONORABLE

SCR SUPREME COURT

REPORTER

M.V.A MOTOR VEHICLE ACT

AIR ALL INDIA REPORTER

LR LAW REPORTER
MEMORIAL ON BEHALF OF THE COMPLAINANT
 INTRA DEPARTMENT MOOT COURT COMPETITION, 2023

INDEX OF AUTHORITIES

S.No. Particulars Page No.

Statues Referred
1. Motor Vehicle Act Passim.
Cases

1. State vs. ManoharLalon ..13January,2021

2. Nagappav.GurudayalSingh[(2003)2SCC274],

3. SarlaVermav.DelhiTransportCorporation[(2009)

Books and Journals

1. Black’s Law Dictionary Passim.

2. Halsbury Law of England Passim.

INTRA DEPARTMENT MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF THE COMPLAINANT 4

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STATEMENT OF FACTS

BACKGROUND: On 15.01.2022, Sameer was traveling back home at around 10:45 p.m. after having
dinner with his friends. He was riding alone on his motorbike bearing registration number ‘SH 01 AT
0098’. Sameer was driving at a speed of around 55 km/h on the left side of the road. Suddenly, a truck
bearing registration number ‘AZ 22 BS 4190’, being driven by Dilipveer Singh, a Sindhi hailing from
Sindigarh, overtook a car from its left side and collided with themotorbike.

As a result of the impact, Sameer was thrown several feet away and the motorbike rammed into the
divider of the road. The truck driver lost control of the truck and rammed into an electricity pole
at the side of the roadSameer was rushed to the hospital where he underwent two brain surgeries.
However, despite the best efforts of the doctors, Sameer could not survive and he succumbed to death on
19.01.2022 at 12:00 p.m. It was stated by the doctors that the deceased had sustained several head
injuries and other fractures that led to his death.

Subsequently, Sameer’s parents- Mr. Vaibhav and Mrs. Shalini filed an application for compensation
before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) on 01.02.2022
seeking total compensation of INR 10,25,000/- from the respondents- the driver of the vehicle
(Respondent No. 1), owner of the vehicle (Respondent No. 2) and the insurance company (Respondent
No. 3). The said amount was arrived at by taking the income of the deceased at INR
50,000/month.

It was pleaded by the claimants that their son had a bright future ahead as he had cleared theACS-
(Judicial) examination and that he would have been entitled to a monthly salary of INR 45,000/- along
with other ancillary benefits post his appointment. The claimants also produced the result of Sameer as
evidence
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STATEMENT OF JURISDICTION

Jurisdiction of The MACT Court Under Section- 166(2) of the MV Act- No bar to file Claim at the
place where the Respondent-Insurance Co. has its registered Office- Having regard to Section 21
CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any
prejudice

SUMMARY OF ARGUMENTS

Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there
shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).

Explanation – (1) A person driving a motor vehicle merely as a paid employee, while there is in force in
relation to the use of the vehicle, no such policy as is required by this sub-section, shall not be deemed to
act in contravention of the sub- section unless he knows or has reason to believe that there is no such
policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State
Government and used for Government purposes unconnected with any commercial enterprises.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle
owned by any of the following authorities, namely :-
(a) the Central Government or a State Government, if the vehicle is used for Government purposes
connected with any commercial enterprise;
(b) any local authority ;
(c) any State transport undertaking.

Provided that no such order shall be made in relation to any such authority unless a fund has been
established and is maintained by that authority in accordance with the rules made in that behalf
under this Act for meeting any liability arising out of the use of any vehicle of that authority, which that
authority or any person in its employment may incur to third parties
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ISSUES/CHARGES

 a. Whether the accident dated 15.01.2022 amounts to a case of

contributory negligence?
No, OPP

 b. Whether the claimants are entitled to enhancement of

compensation?
Yes, OPD

 c. Whether the insurance company is liable to pay the amount of

compensation to the claimants?
Yes, OPD

MEMORIAL ON BEHALF OF THE COMPLAINANT 9

 INTRA DEPARTMENT MOOT COURT COMPETITION, 2023

ARGUMENTS ADVANCED

1. WHETHER THE ACCIEDENT DATED 15.01.2022 AMOUNTS TO A

CASE OF CONTRIBUTORY NEGLIGIENCE ?

No, The truck driver lost control of the truck and rammed into an electricity pole at the side of the
road Sameer was rushed to the hospital where he under went two brain surgeries. However,
despite the best efforts of the doctors, Sameer could not survive and he succumb bed to death
on 19.01.2022 at 12:00p.m. It was stated by the doctors that the deceased had sustained several
head injuries and other fractures that led to his death.

The next interesting question which arises for consideration is whether, even if the
insurance company has repudiated the policy by intimating the same to the insured,
they are liable to indemnify the insured
. The next question is whether 'persons concerned' mentioned the insured alone or any other person other
than the insured to be informed so as to exonerate the insurance company completely
from the liability. Thirdly, even if the insurance company is exonerated from the
liability to indemnify the insured, whether they are entitled to recover the same from
the insured as contemplated under Section 149(4) of the Motor Vehicles Act

Tata Aig General Insurance Co Ltd vs Surjeet Kaur & Ors on 7 March, 2022

#The respondent Insurance company is held liable for 70%, whereas the appellant Insurance company is left
with 30% of the liability to reimburse to the claimants.No other argument was raised.

#Since the appeals filed by the Insurance company are being disposed of, therefore, counsel for the claimants
has submitted that he does not want to press the cross objections.

#In view of the above, the appeals filed by the Insurance company of the Innova car are partly allowed. The
averments made by the appellant Insurance company are accepted to the extent mentioned hereinabove
and the award is ordered to be modified in the above terms. The cross objections are dismissed as withdrawn.
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2. Whether the claimants are entitled to enhancement of compensation?

Yes,It was pleaded by the claimants that their son had a bright future ahead as he had cleared the ACS-
(Judicial) examination and that he would have been entitled to a monthly salary of INR45,000/- along
with other ancillary benefits post his appointment. The claimants also produced the result of Sameer as
evidence.

# Before going into the question regarding the liability of the insurance company, we may consider the
amount of compensation payable to the appellant. The appellant claimed higher amount as monthly
income. He had not produced any document to prove his income. Under such circumstances, the
Tribunal was perfectly justified in notionally fixing the monthly income of the appellant is not enough.
We do not find any reason to interfere with the same.

165. Claims Tribunals.--

(1)A State Government may, by notification in the Official Gazette, constitute one or
more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as
Claims Tribunal) for such area as may be specified in the notification for the
purpose of adjudicating upon claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons arising out of the use of motor
vehicles, or damages to 8 of 24 FAO No. 2558 of 2016 (O & M) and connected
matters -9-

any property of a third party so arising, or both. Explanation.--For the removal of

doubts, it is hereby declared that the expression "claims for compensation in
respect of accidents involving the death of or bodily injury to persons arising out of
the use of motor vehicles" includes claims for compensation under section 164.

(2)A Claims Tribunal shall consist of such number of members as the State
Government may think fit to appoint and where it consists of two or more members,
one of them shall be appointed as the Chairman thereof.
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(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless
he--
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been a District Judge, or
(c) is qualified for appointment as a High Court Judge or as a District Judge.
(4) Where two or more Claims Tribunals are constituted for any area, the State Government,
may by general or special order, regulate the distribution of business among them.

166. Application for compensation.-- (1) An application for compensation arising out of
an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the
deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives
of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in
any such application for compensation, the application shall be made on behalf of
or for the benefit of all the legal representatives of the deceased and the legal
representatives who have not so joined, shall be impleaded as respondents to the 9
of 24 FAO No. 2558 of 2016 (O & M) and connected matters
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3.Whether the insurance company is liable to pay the amount of

compensation to the claimants?

Yes, Deddappa v. Branch Manager, National Insurance Company Limited (AIR 2008 SC 767), the
tribunal exonerated the insurance company from liability, making the owner of the vehicle alone liable
for payment of the amount. Dissatisfied with the quantum of compensation awarded and also the finding,
exonerating the insurance company from liability, the appellant has come to this court with the above
appeal.

# such circumstances, the insurance company must pay the amount to the third party, who sustained
injury on account of the user of the motor vehicle in respect of which the policy was issued by them
earlier, the repudiation of which has not been informed to the Regional Transport Officer concerned
under Section 147(4) of the Motor Vehicles Act. This aspect has not been considered by the Tribunal, is
the contention of the appellant.
# The counsel for the first respondent also supported the submission made by the counsel for the
appellant as regards the liability of the insurance company. On the other hand, he had contended that the
amount awarded is just and proper.

# Counsel for the insurance company submitted that since there was no policy as on the date of accident,
which was repudiated by the company by intimating the insured long prior to the accident, the tribunal
was perfectly justified in exonerating the insurance company from liability. While admitting that the
cancellation of the policy was not intimated to the registering authority, he contended that that cannot be
a necessary requisite for exoneration since the owner of the vehicle can get the permit from any of the
offices of the registering authorities in the State by using the policy issued earlier, suppressing the fact of
cancellation. So, according to him, the Tribunal was perfectly justified in exonerating the insurance
company from liability. He had further contended that the amount awarded by the Tribunal is just and
proper and no interference is called for.
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Section 64VB of the Insurance Act deals with the question as to when the risk will be covered in
the case of issuance of a policy, which reads as follows :

"64VB. No risk to be assumed unless premium is received in advance :-

(1) No insurer shall assume any risk in India in respect of any insurance
business on which premium is not ordinarily payable outside India
unless and until the premium payable is received by him or is guaranteed
to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of
such amount as may be
prescribed, is made in advance in the prescribed manner.
(2) For the purposes of this Section, in the case of risks for which
premium can be ascertained in advance, the risk may be assumed not
earlier than the date on which the premium has been paid in cash or by
cheque to the insurer.
Explanation - Where the premium is tendered by postal money order or cheque sent by post, the risk may be
assumed on the date on which the money order is booked or the cheque is posted, as the case may be.
(3) Any refund of premium which may become due to an insured on
account of the cancellation of a policy or alteration in its terms and
conditions or otherwise shall be paid by the insurer directly to the
insured by a crossed or order cheque or by postal money order and a
proper receipt shall be obtained by the insurer from the insured and such
refund shall, in no case, be credited to the account of the agent.
(4) Where an insurance agent collects a premium on a policy of
insurance on behalf of an insurer, he shall deposit or despatch by post to
the insurer, the premium so collected in full without deduction of his
commission within twenty-four hours of the collection excluding bank
and postal holidays.
(5) The Central Government may, by rules, relax the requirements of sub-
section (1) in respect of particular categories in insurance policies.
(6) The Authority may, from time to time, specify, by the regulations
made by it, the manner of receipt of premium by the insure
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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble High Court of Arbaaz at
Bindia that it may be graciously pleased to adjudge and declare that:

 It is submitted that claimin g a s um of Rs .10,25 ,000 /- from the

respondents be provided to claimants
 Be Hold the Order which is passed by learned tribunal respondent no. 3.

AND/OR

Pass any other order that it may deem fit in the favour of the COMPLAINANT in the light of
equity, justice and good conscience.

For this act of Kindness, the COMPLAINANT shall duty bound forever pray.

Place: Bindia sd /-

Date: 10/08/2022 Counsel for Complainant

MEMORIAL ON BEHALF OF THE COMPLAINANT 26