Himachal Pradesh High Court
United India Insurance Co. Ltd. vs Shiv Ram And Ors. on 23 December, 2005
Equivalent citations: 2007ACJ32
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal under Section 173 of Motor Vehicles Act by the insurance company has been filed against the award of the Motor Accidents Claims Tribunal, Kullu in M.A.C. Petition No. 14 of 2000 decided on 10.5.2002 whereby he has awarded Rs. 1,42,000 as compensation.
2. The claimants are the husband, sons and daughters of Lali. She was travelling in bus No. HP-34 6525 belonging to Kullu Transport Company. The bus was driven by Tek Chand and was insured with the appellant insurance company. According to the claimants the bus was being driven rashly and negligently and one stone fell on the road from the hillside and the bus driver suddenly applied the brakes and due to the jerk Lali struck against the iron rod placed on the seat in front of her and suffered injuries on the side of her breast. She was brought to hospital where she died.
3. The respondents in their reply stated that in fact a huge boulder rolled down towards the road from the hillside in front of the bus. To avoid any impact and casualties the driver had to suddenly apply brakes and stop the bus. In case the brakes had not been applied there could have been a major disaster resulting in death and injury to a number of persons. It was claimed that there was no negligence on the part of the driver of the bus and hence the claim petition should be dismissed.
4. The learned Tribunal on the basis of the evidence led before it agreed with the respondents that the accident did not occur due to rash and negligent driving of the driver of the bus. He in fact held that under the compulsion of the circumstances the driver was forced to bring the bus to a halt since he saw the big boulder falling on the road. The Claims Tribunal, however, went on to hold that even though the petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as 'the Act') may not be maintainable the petition could be converted into one under Section 163-A of the Act and the petitioners would be entitled to compensation under no fault liability under Section 163-A and awarded Rs. 1,42,000 in all.
5. Insurance company in the present appeal challenges the award on the ground that once it was proved that the accident had not occurred due to rash and negligent driving of the driver of the bus no liability could be fastened upon the insurance company. It is also alleged that in fact the deceased died due to cardio-respiratory failure and not due to the accident with the bus and as such also no claim was payable.
6. I have heard Mr. Harish Behl, the learned Counsel for appellant and Mr. C.B. Singh, learned Counsel for the claimants.
7. The first question which arises for decision is whether the petition which was filed under Section 166 of the Act could be converted to one under Section 163-A of the Act? Mr. C.B. Singh in support of this proposition relies upon the judgment of Rajasthan High Court in United India Insurance Co. Ltd. v. Mehtab Bai , where a petition under Section 163-A was permitted to be converted under Section 166 of the Act. He also relies upon certain observations of the Supreme Court in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala .
8. As far as the judgment of Rajasthan High Court is concerned, in that case the petition was filed under Section 163-A of the Act even though the accident had occurred prior to 14.11.1994 when the said provision was inserted in Motor Vehicles Act. In these circumstances the court held that the petition under Section 163-A was not maintainable and should be treated under Section 166 of the Act. The judgment of the Supreme Court in Hansrajbhai V. Kodala's case , in my view does not help the petitioners. This judgment clearly says that Section 163-A is an alternative to Section 166. The judgment in Hansrajbhai V. Kodala's case, has been later considered by a three-Judge Bench of the Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934 (SC). In this case, the Apex Court has made certain pertinent observations after referring to the relevant provision of the Motor Vehicles Act.
9. The Apex Court in Deepal Girishbhai Soni's case 2004 ACJ 934 (SC), has held as follows:
(42) Section 163-A 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 leave no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of the victims who would require the amount of compensation without fighting any protracted litigation for proving that 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.
10. After making the aforesaid observations the Apex Court also considered whether a claimant could file a petition both under sections 163-A and 166 of the Act. With regard to this question the Apex Court held as follows:
(52) It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the mind of the parties to the Us having regard to the fact that both relate to the claim on the basis of no fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under Section 163-A or Section 166 does not arise. If the submission of learned Counsel is accepted the same would lead to an incongruity.
(53) Although the Act is a beneficial one and thus deserves liberal construction with a view to implementing the legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby. [See Regional Director, E.S.I. Corporation, Trichur v. Ramanuja Match Industries ].
(59) The question may be considered from different angles. As for example, if in the proceedings under Section 166 of the Act, after obtaining compensation under Section 163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof ?
(60) The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under Section 163-A of the Act is interim in nature.
11. The Apex Court further went on to hold that the provisions of Section 163-A could only be invoked by those victims where the annual income of the deceased/ injured was less than Rs. 40,000 per annum. The relevant observations are as follows:
(67) We, therefore, are of the opinion that Kodala's case 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with findings in Kodala (supra), that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000 shall be treated as a cap. In our opinion, the proceedings under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000 can take the benefit thereof. All the other claims are required to be determined in terms of Chapter XII of the Act.
12. The clear-cut enunciation of law by the Apex Court is that the two remedies under sections 163-A and 166 of the Act are separate and distinct remedies and any claimant has a right to opt for one of the two and cannot opt for both. In the present case, the claimant opted to file a claim petition under Section 166 of the Motor Vehicles Act. Further the claimants alleged that the deceased was earning Rs. 4,000 per month, i.e., Rs. 48,000 per annum and, therefore, also claimants in this case could not have invoked the provisions of Section 163-A. Therefore, the learned Tribunal erred in holding that the claimants were entitled to compensation under Section 163-A even while rejecting their petition under Section 166 of the Act.
13. The next contention is that the accident does not arise out of the use of the motor vehicle. In this behalf Mr. Behl submits that there is nothing on record to show that the deceased died as a result of the injuries sustained in the accident. The evidence on record shows that after the brakes were suddenly applied near village Sajhla the deceased Lali continued to sit in the bus till Nagar and at Nagar she and her companion got down. When Lali got down she had some pain in the chest and was taken to the hospital where she was declared dead. Dr. Satish Rana has been examined as PW 1. He has conducted the post-mortem on Lali. According to him the death of the deceased had occurred due to myocardial infarction leading to cardio-respiratory failure. He has also proved the post-mortem report, Exh. PW 1A. In this report no external or internal injury is shown to any part of the body of the deceased and the opinion of the doctor is that the deceased died due to myocardial infarction leading to cardio-respiratory failure. In view of this medical evidence it cannot be said that the deceased died as a result of the use of the motor vehicle.
14. Mr. C.B. Singh has cited a judgment of Jammu and Kashmir High Court in National Insurance Co. Ltd. v. Shiv Dutt Sharma , where passengers travelling in a bus were taken out and killed by terrorists. In my opinion the ratio of that case does not apply since in that case the court specifically came to the conclusion that the bus crew had been negligent in not checking the bus.
15. In the present case, it is clear that there was no negligence on the part of the bus driver or the bus crew since the brakes had been suddenly applied due to boulder falling down. There is no proof that the deceased suffered any injury by the sudden application of the brakes. Even if it be assumed that she hit the rod affixed on the seat in front of her, there is no evidence to show that her death which was a result of heart attack had any connection with the same. There is no evidence to show that there was any external or internal injury to her body or that the heart attack was caused because of sudden application of brakes. It is also clear from the evidence that she did not die immediately at the site of the accident but travelled on to Nagar, got down from the bus and then complained of chest pain and was taken to Manali. All these facts go to show that there was no connection between the alleged injuries suffered in the accident and her death.
16. In view of the above discussion, the appeal is allowed. The award of Claims Tribunal is set aside and the claim petition is dismissed. There will be no order as to costs.