Allahabad High Court
United India Insurance Co. Ltd. Thru. ... vs Smt. Sawari And Ors. on 20 September, 2022
Author: Rajesh Bindal
Bench: Rajesh Bindal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice's Court Serial No.301 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW) *** FIRST APPEAL FROM ORDER No.- 614 OF 2019 Pronounced on September 20, 2022 United India Insurance Company Limited ...Applicant Through :- Mr. Deepak Kumar Agarwal, Advocate V/s Smt. Sawari and others ...Respondents Through :- Sri Ravindra Pratap Singh, Advocate CORAM: HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE JASPREET SINGH, JUDGE ORDER
RAJESH BINDAL, C.J.
1. The matter has been placed before this Bench for consideration of the following question, referred to a larger Bench, by the learned Single Judge vide order dated February 8, 2021:
"Whether in the proceedings under Section 163-A of the Motor Vehicles Act, 1988 it is open for the Tribunal to exercise discretion for the assessment of compensation contrary to second schedule appended to the Act, 1988 notwithstanding that a sum of rupees five lacs is the fixed amount w.e.f. 22.05.2018 in such a proceedings."
2. Brief facts of the case, as are found from the record of the case, are that on April 28, 2015 at about 9 O'clock Raj Bahadur, having a valid driving licence, while going to Lucknow from Tikait Nagar driving Bus bearing registration No.UP 41T 4269, met with an accident on Barabanki-Bahraich Road due to which he sustained grievous injuries. He succumbed to his injuries on April 30, 2015. The registered owner of the aforesaid vehicle was Shashi Bhushan and the vehicle was being operated by the U.P. Road Transport Corporation on contractual basis. At the time of accident, the vehicle was insured with United India Insurance Company Limited, which was valid. A claim petition was filed under Section 163A of the Act1 by the widow and three minor children of the deceased Raj Bahadur also impleading parents of the deceased as opposite party Nos.4 and 5 before the Tribunal2. The learned Tribunal allowed the claim petition vide order dated August 7, 2019 and awarded compensation of ₹9,97,200/- along with simple interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment, which was to be paid by the appellant. The total awarded amount of compensation included the benefit of future prospect is to the tune of ₹2,59,200/-. Deduction of 1/4th was directed to be made towards personal expenses. A sum of ₹70,000/- was awarded towards conventional heads. Out of the total awarded compensation, ₹3,00,000/- along with interest were directed to be paid to the widow of the deceased and ₹5,00,000/- along with interest were directed to be divided amongst three minor children equally. Rest of the awarded compensation i.e. ₹1,97,200/- along with interest was directed to be paid to the parents of the deceased, who were opposite party Nos.4 and 5 in the claim petition.
3. The arguments raised by learned counsel for the appellant before the learned Single Judge was that in an application filed under Section 163A of the Act, only structured formula as contained in Second Schedule attached to the Act could be applied. In support, he referred to a judgment of this Court in Shriram General Insurance Co. Ltd. v. Asif and others3 and judgments of Hon'ble the Supreme Court in National Insurance Company Limited v. Pushpa and others4, Smt. Sarla Verma and others v. Delhi Transport Corporation and another5 and Deepal Girishbhai Soni and others v. United India Insurance Company Ltd.6. Whereas the stand taken by the learned counsel for the claimant was that the Court is not bound to apply the structured formula, hence assessment of the compensation was just and fair.
4. Considering two conflicting views of this Court in F.A.F.O. No.560 of 2012 titled as Smt. Jagdish Kumari and others v. Om Prakash and others7 and in Asif's case (supra), the learned Single Judge found it appropriate to refer the matter to the larger Bench for consideration.
5. Mr. Deepak Kumar Agarwal, learned counsel for the Insurance Company/appellant submitted that the scope of Sections 163A and 166 of the Act is all together different. Section 163A of the Act provides for no fault liability while providing for assessment of compensation in terms of Second Schedule attached to the Act. Its' application is limited only to the cases where the actual income claimed is or restricted up to ₹40,000/-. This Section does not have any application in the present case. A plain reading of the aforesaid Section shows that it starts with non-obstante clause. Meaning thereby, no other provisions of the Act providing for assessment or payment of compensation will be applicable.
6. Section 140 of the Act provides for payment of interim compensation but the same does not have any application in an application filed under Section 163A of the Act. However, interim compensation payable under Section 140 of the Act can be set off against final compensation assessed for which application can be filed under Section 166 of the Act. In such application just amount of compensation is required to be assessed by the Court. The onus to prove number of issues lies on the claimant. In support of his arguments, he placed reliance upon the judgments of Hon'ble the Supreme Court in Deepal Girishbhai Soni's case (supra), Smt. Sarla Verma's case (supra), National Insurance Company Ltd. v. Pranay Sethi and others8, United India Insurance Co. Ltd. v. Sunil Kumar and another9 and the Full Bench judgment of Gujarat High Court in New India Assurance Co. Ltd. v. Shah Mahasukhlal Mafatlal and others10. He further referred to the Rules11. In terms of Rule 204 of the Rules, separate forms have been prescribed to be filled up by a claimant while filing applications under Section 163A or 166 of the Act. Hence, the scope of both the sections are well defined.
7. On the other hand, Mr. Ravindra Pratap Singh, learned counsel for the claimants submitted that Hon'ble the Supreme Court in Pranay Sethi's case (supra) also considered the scope of Section 163A of the Act. His submission is that once just and fair compensation is to be assessed, the same cannot be restricted to structured formula.
8. Heard learned counsel for the parties and perused the paper book.
9. To appreciate the issue involved, it is necessary to examine the relevant provisions of the Act, which stood at the relevant time read as under:-
"140. Liability to pay compensation in certain cases on the principle of no fault.--(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.
141. Provisions as to other right to claim compensation for death or permanent disablement.-- (1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A such other right hereafter in this section referred to as the right on the principle of fault to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.
(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and--
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
x x x x
161. Special provisions as to compensation in case of hit and run motor accident.--(1) For the purposes of this section, section 162 and section 163-
(a) "grievous hurt" shall have the same meaning as in the Indian Penal Code (45 of 1860);
(b) "hit and run motor accident" means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose;
(c) "scheme" means the scheme framed under section 163.
(2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation--
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of 1 [twenty-five thousand rupees];
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of 2 [twelve thousand and five hundred rupees].
(4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.
162. Refund in certain cases of compensation paid under section 161.--(1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded to the insurer.
(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the tribunal, court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid under section 161 or an application for payment of compensation is pending under that section, and such tribunal, court or other authority shall,--
(a) if compensation has already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1);
(b) if an application for payment of compensation is pending under section 161 forward the particulars as to the compensation awarded by it to the insurer.
Explanation.--For the purposes of this sub-section, an application for compensation under section 161 shall be deemed to be pending--
(i) if such application has been rejected, till the date of the rejection of the application, and
(ii) in any other case, till the date of payment of compensation in pursuance of the application.
163A. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
163B. Option to file claim in certain cases.-- Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both.
x x x x
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 application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
x x x x (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."
10. The background in which Section 163A was added in the Act was considered by Hon'ble the Supreme Court in The Oriental Insurance Co. Ltd. and others v. Hansrajbhai V. Kodala and others12. The issue involved therein was as to whether compensation payable under Section 163A of the Act as per the structured formula is in addition or in alternative for determination of the compensation on the principle of fault liability after following the procedure prescribed under the Act. The issue was answered in negative. It was opined that in view of the non-abstante clause contained in Section 163A of the Act, it excludes determination of compensation on the principle of fault liability. The idea for adding Section 163A in the Act was to give relief to the victims of the motor accident at the earliest in a long drawn litigation. It had to be on the basis of structured formula as provided in the Second Schedule attached to the Act. It also opined that in case the question of determination of compensation on fault liability is also permitted, it would result in additional litigation and applications. Relevant paragraphs thereof are extracted below:-
"8. From the provisions quoted above, it appears that no specific mention is made that remedy provided under Section 163A is in addition or in the alternative to the determination of compensation on the basis of fault liability. Section 163A was not there in the original Act of 1988. It was inserted by Act No. 54 of 1994 w.e.f. 14.11.1994. Hence, for arriving at the proper conclusion, it would be necessary to cull out legislative intent by referring to the legislative history as well as Objects and Reasons for inserting the said provision.
x x x x
14. In this context if we refer to the Review Committees Report, the reason for enacting Section 163A is to give earliest relief to the victims of the motor vehicle accidents. The Committee observed that determination of cases takes long time and, therefore, under a system of structural compensation, the compensation that is payable for different classes of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of minor, loss of income on account of loss of limb etc. can be notified and the affected party can then have option of their accepting lump sum compensation under the scheme of structural compensation or of pursuing his claim through the normal channels. The Report of the Review Committee was considered by the State Governments and comments were notified. Thereafter, the Transport Development Council made suggestions for providing adequate compensation to victims of road accidents without going into long drawn procedure. As per the objects and reasons, it is a new pre-determined formula for payment of compensation to road accidents victims on the basis of age/income which is more liberal and rational. On the basis of the said recommendation after considering the Report of the Transport Development Council, the Bill was introduced with a new pre-determined formula for payment of compensation to road accident victims on the basis of age/income which is more liberal and notional, i.e. Section 163A. ..... The purpose of this Section and the Second Schedule is to avoid long drawn litigation and delay in payment of compensation to the victims or his heirs who are in dire need of relief. If such affected claimant opts for accepting the lump-sum compensation based on structured formula, he would get relief at the earliest. It also gives vital advantage of not pleading or establishing any wrongful act or neglect or default of the owner of the offending vehicle or vehicles.
11. With reference to interpretation of Section 163A of the Act and its scope, paragraphs 19 to 21 of the aforesaid judgment can be gainfully referred to, which read as under:-
"19. Lastly, for interpretation and construction of Section 163A , we would refer to its heading and language. The heading is "Special provisions as to payment of compensation on structured formula basis". At the outset, we would make it clear that for interpretation of the words of Section the language of the heading cannot be used to control the operation of the Section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section. [Re: K.P. Varghese v. ITO (1982) 1 SCR p.629 at 647]. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins with non-obstante clause notwithstanding anything contained in this Act or any law for the time being in force. This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163B further clarifies that claim petition can be filed either under Section 140 or under Section 163A but not under both sections.
20. The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140(1), it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicle. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase "owner of the motor vehicle of authorised insurer" as "owner of the motor vehicle or authorised insurer" on the assumption that "of" is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs.50000/- is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading of as or would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Section 163A with the other payment on fault liability under the Act.
21. In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons: -
(1) There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so. [Sections 140 and 141] (2) In case where compensation is paid on no fault liability under Sections 140 and 161 in case of hit and run motor accidents, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under Section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163A .
(3) The words under any other law for the time being in force would certainly have different meaning from the words under this Act or under any other provision of this Act.
(4) In view of the non-obstante clause notwithstanding anything contained in this Act the provisions of Section 163A would exclude determination of compensation on the principle of fault liability.
(5) The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under Section 163A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned.
(6) Award of compensation under Section 163A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under Section 168. The object was to avoid delay in determination of compensation."
12. It was a case in which in the order of the High Court impugned before Hon'ble the Supreme it was held that award under Section 163A of the Act was an interim award and claimants were entitled to proceed further for determination of compensation under Section 168 of the Act. The Supreme Court allowed the appeal of Insurance Company and judgment of the High Court was set-aside.
13. Correctness of the aforesaid judgment of Hon'ble the Supreme Court was under consideration in a subsequent judgment of Hon'ble the Supreme Court in Deepal Girishbhai Soni's case (supra). In the aforesaid case, Hon'ble the Supreme Court also considered the legislative history of Section 163A of the Act in paragraphs 18 to 23, which are extracted below:-
"18. A claim for damages owing to injuries suffered by reason of negligence on the part of the driver of a motor vehicle used to be governed only by law of tort. The Indian Motor Vehicles Act, 1914 is the first enactment relating to motor vehicles. The Indian Motor Vehicles Act, 1939 which replaced the 1914 Act consolidated and amended the law relating to motor vehicles in India. Under the 1939 Act as also the Fatal Accidents Act, 1855 compensation was solely based on law of tort. The civil courts had the jurisdiction to try a suit claiming compensation by the plaintiffs for injuries or damages suffered by them by a party whose action had inflicted the injury. In the year 1956, the Motor Vehicle Accidents Claims Tribunals were established to deal with such claims purported to be for providing speedy trial. However, proof of negligence was a condition precedent for grant of compensation under the 1939 Act.
19. The 85th Law Commission in its report submitted in May, 1980, proposed two new measures, i.e. (i) introduction of Section 92-A in the Motor Vehicles Act, 1939 by which the doctrine of liability without fault was to be introduced and, (ii) the imposition of strict liability as regard death or bodily injury caused by the accident or nature specified in Section 110(1) thereof. Recommendations were also made by the Law Commission to the effect that claim on fault basis should be barred but the same had not been accepted by the Parliament.
20. While making the aforementioned recommendations, the Commission referred to the following observations made by this Court in Bishan Devi and others Vs. Sirbaksh Singh and Anr. [(1980) 1 SCC 273]:
"the law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving."
21. By reason of Section 92-A, 92-B in Motor Vehicles Act, 1939 inserted in the year 1982, a sum of Rs. 15,000/- was to be provided in case of death and a sum of Rs. 7,500/- in respect of permanent disablement by introducing the concept of "no-fault liability". The amount of compensation, however, had been revised from time to time.
22. The Law Commission furthermore recommended for laying of a scheme in terms whereof the victims of 'hit and run accident' could claim compensation where the identity of the vehicle involved in the accident was unknown. Yet again, the 199th Law Commission in its report submitted in 1987 stated the law as it stood then in the following terms:
"the law as it stands present, save the provisions in chapter VIIA inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay the compensation and which fault caused the harm."
23. The present Act came into force thereafter in terms whereof inter alia Section 92-A to 92-E of the 1939 Act were replaced by Section 140 to 144 whereby and whereunder the amount of compensation in case of death was raised to Rs. 50,000/- and for permanent disablement to Rs.25,000/-. However, having regard to number of representations received from various quarters, a review committee was constituted by the Government of India in the year 1990 to examine the same and review such provisions of the said Act, as may be found necessary. In terms of the recommendations of the Review Committee as also the Transport Development Council, the Act was thereafter amended in the year 1994 in terms whereof a new pre-determined formula in the form of Section 163-A for payment of compensation to road accident victims on the basis of age and income on a no-fault basis was provided.
14. After considering the legislative history of Section 163A of the Act, Hon'ble the Supreme Court opined that determination of compensation under Sections 163A and 166 of the Act being final and independent of each other, the claimant cannot pursue his remedies thereunder simultaneously. One has to opt/elect to either proceed under Section 163A or Section 166 of the Act but not under both. The relevant paragraphs 42, 46 and 57 are extracted below:-
"42. Section 163A was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in column Nos. 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.
x x x x
46. Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structured formula basis. Sub-Section (1) of Section 163-A contains non-obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Sub-Section (2) of Section 163-A is in pari materia with Sub-Section (3) of Section 140 of the Act.
x x x x
57. We, therefore, are of the opinion that remedy for payment of compensation both under Section 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both." (emphasis supplied)
15. The issue was further examined by Hon'ble the Supreme Court in National Insurance Company Limited v. Gurumallamma and others13 wherein it was opined that in a proceeding under Section 163A of the Act the amount of compensation has to be assessed in terms of Second Schedule attached to the Act. Relevant paragraph 8 thereof is extracted below:-
"8. ........... As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163-A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities." (emphasis supplied)
16. In United India Insurance Co. Ltd. v. Sunil Kumar and others14, Hon'ble the Supreme Court while considering the question whether in a claim proceeding under Section 163A of the Act, it is open for the Insurer to raise the defence/plea of negligence, held following in paragraphs 7 and 8 which read as under:-
7. As observed in Hansrajbhai V. Kodala (supra) one of the suggestions made by the Transport Development Council was "to provide adequate compensation to victims of road accidents without going into long drawn procedure." As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Section 92A to 92E of the Old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act makes it clear that compensation payable thereunder does not foreclose the liability to pay or the right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163-A, on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000/- per annum) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala (supra) the bench had occasion to observe that:
"Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no-fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured-formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles."
8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
17. Again Hon'ble the Supreme Court in Ramkhiladi and others v. The United India Insurance Company and others15 has in paragraph 5.8 held as under:-
"5.8. ..... However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. ..."
18. Similar view was expressed by the Division Bench of Calcutta High Court in The New India Assurance Company v. Jasmin Bibi16 and Sikkim High Court in The Branch Manager, Shriram General Insurance Company Limited v. Dilurai17 and Division Bench of this Court in Oriental Insurance Company Limited v. Smt. Maya18.
19. A perusal of the judgment of learned Single Judge in Smt. Jagdish Kumari's case (supra), which has taken a different view than what has been taken by Hon'ble the Supreme Court in Hansrajbhai V. Kodala's, Deepal Girishbhai Soni's, Gurumallamma's and Sunil Kumar's cases (supra), shows that it had not considered the aforesaid judgments and held even for assessment of compensation under Section 163A, instead of structured formula, normal assessment is to be made. Whereas in Asif's case (supra), the learned Single Judge, after placing reliance on the aforesaid judgments of Hon'ble the Supreme Court, had granted compensation on the basis of structured formula as provided in Second Schedule attached to the Act.
20. As the issue, referred for consideration by a larger Bench, was already covered by judgments of Hon'ble the Supreme Court, even if there was different opinion expressed earlier by two Single Benches, the matter could be decided in the light of Supreme Court judgments ignoring the view expressed in the judgment taking a view contrary to the law laid down by Hon'ble the Supreme Court. Principles of per incuriam will be applicable in such cases. Reference can be made to judgment of Hon'ble the Supreme Court in K.S. Panduranga v. State of Karnataka19 where the Supreme Court had considered the law with respect to the concept of per incuriam in detail. Paragraphs 30, 31, 32, 33 and 35 of the said judgment are extracted as under:-
"30. Presently, we shall proceed to deal with the concept of per incuriam. In A.R. Antulay v. R.S. Nayak, while dealing with the said concept, had observed thus: -
"42. ... ''Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
31. Again, in the said decision, at a later stage, the Court observed: -
"47. ... It is a settled rule that if a decision has been given per incuriam the court can ignore it."
32 In Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, another Constitution Bench, while dealing with the issue of per incuriam, opined as under:
"40. The Latin expression ''per incuriam' means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court."
33. In State of U.P. v. Synthetics and Chemicals Ltd., a two-Judge Bench adverted in detail to the aspect of per incuriam and proceeded to highlight as follows:
"40. ''Incuria' literally means ''carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ''quotable in law' is avoided and ignored if it is rendered, ''in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."
x x x x
35. In Government of A.P. and another v. B. Satyanarayana Rao (dead) by LRs and others this Court has observed that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
21. In view of the above, the judgment of learned Single Judge rendered in Smt. Jagdish Kumari's case (supra), being in ignorance of the law laid down by Hon'ble the Supreme Court on the subject, the same could be ignored being per incuriam. The issue being covered by various judgments of Hon'ble the Supreme Court on the issue, we find the reference itself to be uncalled for. The matter is accordingly returned back to the learned Single Judge for further proceedings. The judgment of Smt. Jagdish Kumari's case (supra) being per incuriam shall not be a precedent.
22. While dealing with the matter referred to the larger Bench under the Motor Vehicle Act, 1988, this Court was reading the clauses in the Bare Act published by Eastern Book Company and Professional Book Publishers and found that it has not been correctly printed and the contents thereof are quite misleading. Some of the provisions, which have not yet been deleted, as the date of their endorsement has not been notified, have been deleted from the Act whereas some of the provisions, which were existing in the Act such as Sections 163A and 163B, have not even been published/printed. In the Bare Acts published by LexisNexis and Professional Book Publishers, the date of notification/coming into effect of Chapters-X and XI has wrongly been mentioned. This cannot be expected from the publishers of repute.
23. Let notices be issued to the publishers, namely, Eastern Book Company, 34-A, Lalbagh, Lucknow-226001, LexisNexis, 14th Floor, Building No.10, Tower-B, DLF Cyber City, Phase-II, Gurgaon-122002, Haryana and Professional Book Publishers, 3520/2, Chotani Manzil, Nicholson Road, Mori Gate, Delhi-110006 for October 20, 2022 to explain as to why appropriate action be not taken against them for misleading the counsel as well as the Court and wasting their precious time. Wrong publication of bare Acts can lead to wrong decisions.
(Jaspreet Singh) (Rajesh Bindal)
Judge Chief Justice
Lucknow
20.09.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes