Karnataka High Court
Rama Bommayya Naik vs Anilkumar Ayyappan Pillai on 22 March, 2018
Equivalent citations: 2018 (4) AKR 17, 2018 AAC 1875 (KAD) (2019) 4 ACJ 3146, (2019) 4 ACJ 3146
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
M.F.A. No.22832/2010 (MV)
c/w
M.F.A. No.23208/2010 (MV)
IN M.F.A. No.22832/2010 (MV):
BETWEEN:
1. Rama Bommayya Naik
Age: 55 years
Occ: Agriculturist
2. Sitha W/o Rama Naik
Age: 52 years
3. Shiva Rama Naik
Age: 18 years
4. Manjula Rama Naik
Age: 31 years
All r/o. Dandebag, Hichgad,
Ankola. Dist: Karwar.
... Appellants
(By Sri Harish S. Maigar, Advocate for
Sri Narayan V. Yaji, Advocate)
AND:
1. Anilkumar Ayyappan Pillai
Age: Major, Occ: Business
R/o. Vandige, Ankola, Dist: Karwar.
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2. Branch Manager
National Insurance Co. Ltd.,
Kaikini Road, Karwar.
3. Nagappa Durga Naik
Owner of Bike KA-30/H-3667
Harumatta, Ankola,
Dist: Karwar.
... Respondents
(By Sri Laxman B. Mannoddar, Advocate for R2;
Notice to R1 dispensed with; R3 is served)
This MFA is filed under Section 173(1) of the
MV Act against the judgment and award dated
31.12.2009, passed in MVC No.09/2006, on the file
of the Member, Additional MACT, Kumta, allowing
the claim petition for compensation and seeking
enhancement of compensation.
IN M.F.A. No.23208/2010 (MV):
BETWEEN:
The Branch Manager
National Insurance Company Ltd.,
Kaikini Road, Karawar.
Now represented by its Administrative Officer
Miss. Renuka D/o Yallappa Ranebennur
National Insurance Co. Ltd.,
Divisional Office, Sujata Complex, Hubli.
... Appellant
(By Sri Laxman B. Mannoddar, Advocate)
AND:
1. Rama Bommayya Naik
Age: 49 years
Occ: Agriculturist
R/o. Dandebag, Hichgad,
Ankola.
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2. Sitha W/o Rama Naik
Age: 46 years
Occ: Not Mentioned
R/o. Dandebag, Hichgad,
Ankola.
3. Shiva Rama Naik
Age: 22 years
Occ: Student
R/o. Dandebag, Hichgad,
Ankola.
4. Manjula Rama Naik
Age: 25 years
Occ: Not mentioned
R/o. Dandebag, Hichgad,
Ankola.
5. Anilkumar Ayyappan Pillai
Age: Major
Occ: Business
R/o Vandige,
Ankola.
6. Nagappa Durga Naik
Age: Not mentioned
Occ: Owner of Vehicle
R/o: Harumatta,
Ankola.
... Respondents
(By Respondents 1 to 6 are served)
This MFA is filed under Section 173(1) of the
MV Act against the judgment and award dated
31.12.2009, passed in MVC No.9/2006, on the file of
the Additional MACT, Kumta at Kumta, awarding the
compensation of Rs.3,40,500/- with interest at the
rate of 6% P.A. from the date of petition till its
realization.
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These MFAs having been heard, reserved for
judgment on 05.02.2018 and coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
MFA No.23208/2010 has been preferred by the appellant-insurer and MFA No.22832/2010 has been preferred by the appellants-claimants assailing the judgment and award passed by Addl. MACT, Kumta in MVC No.9/2006 dated 31.12.2009.
2. Heard. Appeals are admitted and with the consent of the learned counsel appearing for the parties, the same are taken up for final disposal.
3. The brief facts of the case are that on 6.5.1999 Annappa Rama Naik was coming from Kumta to Ankola after attending the work entrusted by respondent No.1. At about 9.45 a.m. when he reached Bargi suddenly a animal crossed the road, as such the said Rama Naik spontaneously applied the brake and as a result of the same the said vehicle -5- went on the left side of the road and he fell down and sustained injuries and subsequently he succumbed to the injuries. A criminal case was registered in this behalf. For having lost the son, father and mother, brother and sister have filed the claim petition under Section 166 of the Motor Vehicles Act.
4. It is the contention of the petitioners that the deceased was working as a driver and he has studied up to B.A. and likely to get a Government Job. It is their further contention that the deceased was getting Rs.3,000/- per month as salary and Rs.100/- per day as Batta. As he was having a good prospects the claimants filed the claim petition for claiming the compensation.
5. In response to the notice respondents No.1 and 2 appeared, respondent No.1 in his written statement by denying the contents of the petition contended that he is the registered owner of the two wheeler bearing registration No.KA-30/H.3667 and the same has been insured with respondent No.2 and -6- the policy was in currency as on the date of the accident. It is further contended that the deceased Annappa Rama Naik is a close friend, he used to send him for his personal work. On the date of accident he has entrusted the deceased the work at Kumta and he left Ankola early in the morning and after attending the work he was coming back and at that time the alleged accident has taken place. It is further contended that the deceased was holding valid and effective Driving Licence, if at all any liability is there, the respondent No.2 insurer has to pay the compensation. On these grounds he prayed for dismissal of the said petition.
6. Respondent No.2 has also filed his written statement by denying the contents of the petition it is contended that deceased himself was riding the motor cycle and due to his own rash and negligent act the alleged accident has occurred and he is the R.C. owner of the vehicle. As such, respondent No.2 is not liable to pay any compensation. It is -7- alternatively contended that the said vehicle has been insured with respondent No.2. His liability is subject to terms and conditions, exceptions and limitations of the policy condition and the rider was not holding valid and effective driving licence.
7. Since during the course of proceedings it was noticed that the vehicle in question was transferred in the name of respondent No.3, subsequently respondent No.3 also impleaded, he also filed his objections by denying the contents of the petition. It is further contended that he is the registered owner of the said vehicle and the same is insured with respondent No.2 and respondent No.3 used to send the deceased on his personal work and as on the date of the accident he has entrusted the work to the deceased at Ankola and he attended the work entrusted to him and at that time the alleged accident has taken place. He further contended that the deceased was holding valid an effective driving licence and respondent No.2 is liable to pay the -8- compensation. On these grounds he prayed for dismissal of the petition.
8. On the above pleadings the tribunal framed the following issues:
i) Do the petitioners prove that they are legal representatives of the deceased Annappa Rama Naik and their dependency on the deceased?
ii) Do the petitioners prove that Annappa Rama Naik, died in a Motor Vehicle accident. If so, to what compensation the petitioners are entitled and from whom?
iii) What orders?
9. In order to prove the case of the petitioners, petitioner No.3 got himself examined as PW1 and one more witness as PW2 and got marked the documents Exs.P1 to P6. On behalf of respondents they have not led any evidence, but however they got marked the Charge Sheet and Insurance Policy as Ex.R1 and R2. After hearing the parties to the lis, the impugned -9- Judgment and award came to be passed. Assailing the same, the appellants are before this Court.
10. The main grounds urged by the learned counsel for the appellant-insurer are that the Tribunal ought to have noticed that the vehicle being driven by the deceased by himself and the alleged accident has taken place due to his own negligence and fault, he himself is a tort-feasor and as such the appellant- insurer is not liable to pay any compensation. He further contended that the deceased steps into the shoes of the owner and in that light they cannot claim the compensation. In order to substantiate the said contention he relied upon the decision in the case of Ningamma and another Vs. United India Insurance Company Ltd. reported in 2009 ACJ 2020. He further contended that the learned Tribunal grossly erred in fastening the liability on the appellant-insurer.
11. It is the further contention of the learned counsel for the appellant that earlier the petition
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came to be filed under Section 166 of the Motor Vehicles Act and subsequently the same was got amended by restricting the income to Rs.40,000/- per annum, the same would amount to change in the cause of action, the permission which has been granted to restrict the income to claim the compensation under Section 163-A is not justifiable. In order to substantiate the said contention he relied upon the decision in the case of Oriental Insurance Co. Ltd. Vs. Sharada G and Others reported in 2010 ACJ 977. He further relied upon the decision in the case of Guruanna Vadi and another Vs. General Manager, Karnataka State Road Transport Corporation and another reported in 2001 ACJ 1528 and contended that in view of the principles no claim under Section 163-A is maintainable. He further contended that the Tribunal has failed to frame proper issues. On these grounds he prayed for allowing the appeal by setting aside the impugned order.
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12. Per contra, the learned counsel appearing for the claimants contended that the Tribunal has erred in considering the income of the deceased at the rate of Rs.3,000/- per month instead of considering Rs.40,000/- per annum. The Tribunal has erred in taking the age of the youngest parent for applying the multiplier. He further contended that the Court can allow the amendment of claim petition filed under Section 166 of the Motor Vehicles Act to convert the same to Section 163-A at any stage of the proceedings. The only condition that has to be satisfied is the guidelines necessary for the purpose of proving its case. In that context he also relied upon the decision in the case of Guruanna Vadi and another Vs. General Manager, Karnataka State Road Transport Corporation and another reported in 2001 ACJ 1528 quoted supra and he also further contended that the Tribunal by taking into consideration the facts and circumstances has rightly allowed the petition, but however the compensation awarded requires to be enhanced adequately and properly. On these grounds
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he prayed for allowing his appeal by dismissing the appeal filed by the appellant-insurer.
13. The accident in question is not in dispute so also the involvement of the offending vehicle insured with the respondent insurer.
14. The first contention of the learned counsel for the appellant-insurer is that earlier the legal heirs of the deceased filed a claim petition for compensation under Section 166 of the Act, but subsequently sought permission to convert the said application to one under Section 163-A of the Act, it would amounts to change in the cause of action and the same is not justifiable. In order to substantiate the said fact, he has relied upon the decision in the case of Oriental Insurance Co. Ltd. Vs. Sharada G and Others, quoted supra at para Nos.24, 27 and 28 it has been observed as under:
24. As already stated under section 166 of the Act, the cause of action arises on the basis that there is a tortfeasor who on
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account of his negligence has caused injury or death and the entire basis of section 166 is proof of negligence before awarding compensation. Per contra, under Section 163-A of the Act, claimant need not prove the negligence on the part of any other person and can claim compensation on the basis of the Second Schedule. Therefore, under section 163-A the basis of the claim petition is not on negligence, but irrespective of negligence on the part of the owner of vehicle or any other person being prove compensation can be sought. Therefore, sections 166 and 163-A are as already stated mutually exclusive and the basis of the proceeding and the decision would be totally different, as the cause of action is also on a different footing inasmuch as negligence has to be proved under section 166 before the compensation is awarded whereas under section 163-A negligence need not be pleaded or proved on the part of a tortfeasor. Hence, when a claim petition is filed under section 166 of the Acc, in our view, the same cannot be permitted to be converted to one under section 163-A of the Act as it would amount to change in the
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basis of cause of action and as such the amendment is not permissible.
27. Hence, the Tribunal was not right in permitting the conversion of the claim petition filed under section 166 of the Act to one under section 163-A of the Act as the claim petition under section 166 or section 163-A was not maintainable.
28. In view of our finding on point No.2, we hold that the Tribunal was not justified in awarding compensation in terms of Second Schedule to the Motor Vehicles Act which is to be read as part and parcel of section 163-A by restricting the income of the deceased to Rs39,000 per annum (Rs.40,000 being the ceiling under the Second Schedule).
15. By going through the above said decision, it goes to show that conversion of the application from 166 to 163-A would amounts to change in the cause of action and the Tribunal was not justified in allowing such change. But in the decision of Guruanna Vadi and another Vs. General Manager,
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Karnataka State Road Transport Corporation and another reported in 2001 ACJ 1528, this Court has held that during the pendency of the proceedings filed under Section 166 of the Act, the petitioner can amend the said petition to convert into 163-A of the Act provided, if other conditions are satisfied. For the purpose of brevity, I extract paragraphs No.36 and 37, which reads as under:
36. The only bar provided for exercising an option in the matter of filing a claim petition for compensation is to be found in section 163-B which states, "where a person is entitled to claim compensation under section 140 and section 163-A, he shall file the claim under either of the said sections and not under both". There is no prohibition in any other provision of the Act from switching over the claim made under section 166 to section 163-A provided the accident took place on 14.11.94 or thereafter, because section 163-A came on the statute book only with effect from 14.11.94; subject, of course, to the claimants satisfying other requirements such as the outer income limit mentioned in the Second Schedule. Section 163-A is
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beneficial legislation and provides for payment of compensation based on structured formula without requiring pleading or establishing that the death or permanent disability in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or any other person. Such a beneficial legislation has to be given a liberal interpretation. Therefore, we answer this question in the affirmative by holding that a claimant can move the court for amendment of his claim petition filed under section 166 to that of a petition under section 166-A at any stage of the proceedings and it would be for the concerned court to pass an order on that application in accordance with law.
37. In the result, for the foregoing reasons, we answer the questions referred to us, as follows:
(i) Question No.1: The section confers substantial rights to the claimants.
(ii) Question No.2: The compensation received under section 163-A is final and not an interim compensation.
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(iii) Question No.3: The application of section 163-A is prospective and not retrospective.
(iv) Question No.4: A claim application under section 163-A is not tenable if made by a person whose income. But incase the person with the higher income notionally brings down his income to Rs.40,000 in order to present his claim under section 163-A the same can be permitted.
(v) Question No.5: Answer to question No.5 is in the negative. In a claim petition filed by the persons other than the wife and children under section 163-A the court cannot apply a multiplier lower than the one permitted in the Second Schedule on the basis of the age of the claimants.
(vi) Question No.6: A claimant during the pendency of the proceedings at the original or appellate stage can amend his claim petition made under section 166 to a petition under section 163-A provided he satisfies other conditions such as the income factor, etc.
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16. By going through the above said decision it makes it clear that there is no bar or prohibition in the Act from switching over the claim made under Section 166 to Section 163-A of the Act subject to the condition that the outer income limit mentioned in the second schedule has to be followed and the compensation must be awarded based on structured formula without establishing the rash and negligent act on the part of the owner or the driver of the vehicle. The legislation is a beneficial legislation. The said proposition of law has been laid down by the Full Bench of this Court. In that light the contention raised by the appellant-insurer is having no force, as such the same has been rejected.
17. The second contention taken up by the learned counsel for the appellant-insurer is that in view of the decision in the case of Ningamma and another Vs. United India Insurance Company Limited, reported in 2009 ACJ 2020 the claim of the claimants is not maintainable as there is no tort-feasor involved and the deceased steps into the shoes of the owner.
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In that light he himself is a tort-feasor and claim petition is not maintainable. He further contended that in view of the decision the widow and children are not entitled to claim any compensation. For the purpose of brevity, I quote para 13, 18, 19 and 20 of the said decision which reads as under:
13. In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to compensation under Section 163-A of the MVA or under any other provision(s) of law and also whether the insurer who issued the insurance policy would be bound to indemnify the deceased or his legal representative? Before dwelling further, it would be useful to discuss the relevant provisions of Sections 163-A and 166 of the MVA applicable in the present case.
"163-A. 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 or the authorised insurer shall be liable to pay in the case of death or permanent
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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.
xxx xxx xxx (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.
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
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(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..."
18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi , 2008 ACJ 1441 (SC), wherein one of us, namely, Hon'ble Justice S.B. Sinha was a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res- integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a
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claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163- A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.
19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have
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stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or 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. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the
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amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs. In this context reference could be made to relevant paras of Section 147 of the MVA which reads as follows:-
"147. Requirements of policies and limits of liability- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; or
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability. xxx xxx xxx (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-
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(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
xxx xxx xxx (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
18. In the light of the submissions made by the learned counsel for the appellant the question that falls for my consideration is whether the deceased who was riding the motorcycle after borrowing from the real owner met with an accident without involving of any other vehicle would be entitled to claim
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compensation under Section 163-A of the Motor Vehicles Act.
19. There is no dispute with regard to the manner in which the accident occurred in the present case. It is also not in dispute that the deceased was riding the motorcycle at the time of the accident.
20. On the basis of the above admitted facts one more point that arises for my consideration is when a claim petition is filed under Section 163-A of the Motor Vehicles Act, whether it is open for the insurer to raise a defence by holding that deceased steps into the shoes of the owner and he is not liable to pay any compensation because of his own fault and he steps into the shoes of the owner.
21. This proposition of law has been elaborately discussed and decided by the Hon'ble Apex Court in the case of United India Insurance Company Ltd., Vs. Sunil Kumar and another reported in (2014) 1
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Supreme Court Cases 680, therein at paragraphs 13 and 14 it has been observed as under:
13. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver.
Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation.
14. We, therefore, find ourselves unable to agree with the reasoning of the Two-Judge Bench in Sinitha's case (supra). Consequently, the matter is placed before the learned Chief Justice of India for referring the matter to a larger Bench for a correct interpretation of the scope of Section 163-A of the Motor Vehicles Act, 1988, as well as points (iii) to
(v) referred to in Shila Datta's case.
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22. Further in the case of United India Insurance Company Vs. Sunil Kumar and another reported in AIR 2017 SC 5710, therein the Hon'ble Apex Court has observed that the compensation awarded under structured formula basis is in the nature of a final award and adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle involved in the accident. Further it has been observed that in a proceeding under Section 163A of the Motor Vehicles Act, it is not open for the insurer to raise any defence of negligence on the part of the victim himself. When it has been held by the Apex Court that the insurer will not be having any option and he cannot raise any defence with regard to negligence on the part of the victim himself, then under such circumstances, the contention raised by the learned counsel for the appellant-insurer that the deceased himself has contributed to the alleged accident and he himself is a tort-feasor and stepped
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into the shoes of the owner and the insurer is not liable to pay any compensation does not stands to any reason and as such the same is liable to be rejected and accordingly it is rejected. In the light of the subsequent decision of the Hon'ble Apex Court the insurer is not having any defence except to pay the compensation.
23. Be that as it may. Even though the respondent No.2 has filed its objection, in his objections he has not contended that the deceased himself is a tort-feasor and he stepped into the shoes of the owner and he is not liable to pay any compensation, even he has not led any evidence in order to substantiate the said fact by stepping into the witness box. It is well settled principles of law that if the insurer takes up any contentions then heavy burden lies upon him to prove the same to avoid the liability, and it is also well settled principles of law that though a person who takes a contention and if he fails to prove it, then his contentions also
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fails and he cannot raise the said contentions in the appeal without there being any basis.
24. Per contra, the claimants have proved that the deceased died as a result of the accident in which the vehicle was involved and he need not prove the rash and negligent act on the part of any other persons. In view of the settled proposition of law the contention taken up by the learned counsel for the appellant-insurer does not survive for consideration and the same is liable to be rejected and it is accordingly rejected. If a persons invokes the provisions of Section 163-A of the Act, the only caveat which is there to the claimants is that they have to prove the annual income of the deceased is below Rs.40,000/- per annum and take the benefit thereunder. In the instant case on hand at the time of amending they have also restricted their claim to Rs.40,000/- per annum . In that light the only procedure which has been left out by the Tribunal is
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to award the compensation as per the said structured formula.
25. It is the contention of the learned counsel for the appellants-claimants that the compensation awarded by the Tribunal is on the lower side, instead of considering the income at the rate of Rs.3,000/- per month, it ought to have taken income at the rate of Rs.40,000/- per annum and it could have awarded the compensation. Even as could be seen from the evidence of PW1 in his evidence he has deposed in examination-in-chief that the deceased was earning Rs.3,000/- per month. When the claimants have themselves come up with a case that the deceased was earning Rs.3,000/- per month and the same has been taken as the income of the deceased by the Tribunal and after deducting 1/3rd towards the personal expenses and after applying the multiplier of '17', has awarded the just compensation and even the compensation awarded under the head of funeral
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expense, loss of estate are also in terms of II Schedule to the Act.
26. Under the said facts and circumstances, the contention of the learned counsel for the appellants- claimants also does not deserve any consideration and the same has been rejected.
27. Keeping in view the above facts and circumstances, both the appeals are dismissed as devoid of merits.
Registry to draw the award accordingly. The amount in deposit shall be transferred to the jurisdictional Tribunal.
Sd/-
JUDGE *AP/-