Madhya Pradesh High Court
Smt. Usha Rathore And Ors. vs National Insurance Company Limited And ... on 29 January, 2008
Equivalent citations: AIR 2008 (NOC) 1186 (M.P.) (GWALIOR BENCH), 2009 AIHC (NOC) 68 (M.P.) (GWALIOR BENCH)
Author: Sanjay Yadav
Bench: Sanjay Yadav
JUDGMENT Abhay Gohil, J.
1. Claimants/appellants being aggrieved with the award dt. 20.9.2001 passed by the IIIrd Additional Motor Accident Claims Tribunal Gwalior in Claim Case No. 56/2001 vide award dated 20.9.2001, have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (in short the Act of 1988) for enhancement of compensation.
2. Brief facts giving rise to this appeal are that on 2.7.2000 in the night deceased Vishnudatta Rathore, who was driving jeep M.P. No. 07 H 2719 and coming from Moina to Gwalior. It was alleged that he was driving the vehicle rashly and negligently. He brought the jeep on the wrong side and dashed the unknown truck. The case of the appellants/claimants was that some other person was driving the vehicle and the deceased was traveling in the jeep as a passenger but in the FIR this fact has been mentioned that the deceased himself was driving the vehicle, though neither the claimants nor the Insurance Company have cleared this fact. The jeep was registered in the name of one Biharilal, who is the brother of the deceased.
3. Claimants/appellants, those who are the widow, sons and daughters of the deceased including the parents have filed the claim petition under Section 163A of the Act of 1988 for claiming compensation.
4. Tribunal found that the deceased was not driving but traveling in the vehicle and the accident took place because of the negligence of both the drivers of the truck as well as of jeep and held that it is a case of contributory negligence and the Tribunal recorded a finding that the case will not fall under Section 163A of the Act of 1988, but compensation can be awarded under Section 166 of the Act of 1988 and considering the principle of contributory negligence assessed the total income of the deceased at Rs. 2000/-per month and Rs. 24,000/-p.a. deducted 1/3rd amount towards personal expenses and calculated the dependency as Rs. 16,000/-p.a. and awarded total compensation of Rs. 2,84,000/- but reduced the amount of compensation as of , applying the principle of contributory negligence, against which the claimants/appellants have filed this appeal.
5. We have heard the learned Counsel for the parties. Shri B.D.Verma, learned Counsel for the appellants submitted that the Tribunal has committed illegality in considering the claim petition under Section 166 of the Act of 1988, when it was filed under Section 163A of the Act of 1988, in which there is no question to consider the wrongful act, negligence or default of the owner of the vehicle or vehicles concerned or of any other person and also submitted that if the case is considered under Section 163A of Act of 1988, then the question of contributory negligence will not arise and the finding of the Tribunal would be contrary to law and he further submitted that the income of the deceased has not been assessed properly. He was engaged in trading business of grains. He has produced number of documents on record to prove that he was purchasing grain from Mandi and selling it and the income of the deceased was around Rs. 7000-8000 per month but his submission was that since he is claiming compensation under the special provisions of Section 163A of the Act of 1988, therefore he can not claim compensation beyond Rs. 40,000/-p.a., which is the ceiling limit under the Second Schedule.
6. Per contra, Shri R.V. Sharma, learned Counsel for the respondent supported the award passed by the Tribunal and his contention was that the deceased was not traveling as a passenger but he himself was driving the vehicle as is clear from the FIR (Ex.P/1).Therefore, under Sub-section (2) of Section 163A, it would be a case of contributory negligence.
7. Having heard the learned Counsel for the parties, first of all we have considered this aspect of the matter that whether the case will fall within the provisions of Section 163A of the Act of 1988 or the case will fall within the provisions of Section 166 of the Act of 1988, as has been held by the Tribunal.
8. In the Written statement filed by the Insurance Company they have not raised any such question. In the reply, there is no defence by the Insurance Company, whether the case will fall within the provisions of Section 163A of the Act of 1988 or not. They have also not raised any specific plea that the deceased himself was driving the vehicle and Insurance Company has also not produced any evidence oral or documentary on record. Shri R.V. Shrma, learned Counsel for the Insurance Company only submitted that as per policy, the liability of each passenger is restricted to only Rs. 1,00,000/-.
9. First of all we have considered this objection of Insurance Company that the liability of the Company is limited upto Rs. 10,000/-. There is no dispute that in this case the Insurance Company has issued comprehensive policy and full premium was charged by it. Though the figure of Rs. 1,00,000/-has been mentioned in the policy, but there is no specific provision either in the cover note or in the policy that there shall be limit for liability per passanger or for driver. More so neither any such objection was raised by the Insurance Company in the Written Statement nor it was their defence. Against the award, the Insurance Company has not filed any appeal or cross objection. Now, therefore, this objection can not be raised by the Insurance Company first time in appeal and thus can not be considered.
10. To consider the second objection that the deceased himself was driving the vehicle, it is true that the appellant has not correctly stated this fact, in fact the deceased was not sitting as passenger in the vehicle but driving the vehicle. FIR version is the first version, in which the correct fact has been mentioned. Though one Jagdish Prasath Rathore (P.W.1) was examined, in which he has mentioned that one Amarsingh was driving the vehicle and the deceased was traveling in the vehicle but from the FIR even the statement of PW.1 is not found correct and Amarsingh was not examined. Therefore, we hold that the deceased himself was driving the vehicle. Under these facts now the question would be that even if this fact is taken into consideration that the deceased was driving the vehicle and jeep belong to one Biharilal, who is the brother of the deceased, whether the case of the claimants would fall under Section 163A of the Act of 1988 or not and whether claimants would be entitled for compensation or not.
11. To know and to come on correct conclusion, we have to consider the provisions of Section 163A of the Act of 1988, which reads as under:
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 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.
(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.
12. As per the normal interpretation of the provisions of Section 163A of the Act of 1988, it has created a new right in favour of the claimants similar to the right under Section 140 of the Act of 1988 Liability to pay compensation in certain cases on the principle of no fault. The purpose of introducing Section 163A is to provide compensation on the basis of structured formula as mentioned in Second Schedule appended to Section 163A and it is clear from the provisions of Sub-section (2) that 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, which clearly mean that in a claim petition filed under Section 163A, which is a special provision, the question of wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person shall not be examined nor required to be pleaded or established by the claimants and the Tribunal can decide compensation only on the basis of structured formula and that too instantly and expeditiously. Purpose of introducing this provision is to see that victims or injured get instant relief so far as the pecuniary loss is concerned because that loss suffered by them requires instant and immediate relief. Any delay in grant of such compensation may make their life miserable.
13. In the case of K. Nandakumar v. Managing Director, Thanthai Periyar Transport Corporation Ltd. , Hon'ble Supreme Court has clearly held that when there was collusion between a bus and motor cycle due to negligence of motor-cyclist and he suffered permanent disablement, even if the injured claimant was solely responsible for the accident, the compensation was not liable to be denied on the ground of no fault liability as per provision of Section 163A of the Act of 1988.
14. Recently in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934, the question of claim petitions under Section 163A of the Motor Accident Claims was considered in detail and the court has held as under:
51. The scheme as envisaged under Section 163A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000/-or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society.
56. It is now well settled settled that for the purpose of interpretation of statute, same is to be read in its entirety. The purport and object of the Act must be given in full effect. [See High Court of Gujarat v. Gujarat Kisan Mazdoor Panchayat JT 2003 (3) SC 50; Indian Handicrafts Emporium v. Union of India ; Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. and Ashok Leyland v. State of Tamil Nadu . The object underlying the statue is required to be given effect to by applying the principles of purposive construction.
57. We, therefore, are of opinion that remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt or elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but no under both.
58. In Kodala, , the contention of the claimant that right to get compensation is in addition to the no fault liability was, thus, rightly rejected. In agreement with Kodala (supra), we are also of the opinion that unlike Sections 140 and 141 of the Act Parliament did not want to provide any additional compensation in terms of Section 163A of the Act.
15. Therefore, it is clear that when the claim petition was filed strictly under Section 163A of the Act of 1988, and when it was prosecuted, there was no objection by the Insurance Company in the written reply that the case will not fall under the purview of the Section 163A, then the Tribunal was not justified in recording such a finding that the case will not fall within the provisions of Section 163A, but will fall under Section 166 of the Act of 1988. The Tribunal has not assigned any reason for doing so, therefore we are of the view that the finding recorded by the Tribunal to that extent is totally contrary of law. We set aside the same and hold that the appellant/claimants are entitled for compensation under Section 163A of the Act of 1988. We further hold that in that case the question of contributory negligence will not arise and can not be examined in view of the specific provisions of Sub-section (2) of Section 163A of the Act of 1988.
16. So far as the next submission of Shri B.D.Verma, learned Counsel for the claimants/appellants about the just and proper compensation to the claimants is concerned, though he has produced several purchase vouchers for purchasing the grain from various parties from Ex.P/6 to P/90 and has also produced Mandi receipts from Ex.P/91 to P/130 and has also produced gate pass from Ex.P/131 to P/165, in which the name of the deceased has been mentioned, who paid the mandi fees as well as gate pass were also issued in his name, from which it appears that he was purchasing wheat and other grains in the Mandi Committee, paying mandi fees and bringing them out of Mandi area but copy of the mandi licence has not been produced nor any trading account has been produced. In such circumstances it can be held that he was engaged in the business of selling and purchasing grains from Mandi committee. As per the evidence, his income may be Rs. 7000-8000/-p.m, but considering this aspect of the matter that when claim is considered under special provisions of Section 163A of the Act of 1988 and the provisions of Second Schedule are made applicable, then the maximum annual income of Rs. 40,000/-can only be considered for payment of compensation. Therefore, we consider the principle of assessment of compensation mentioned in Second Schedule of Section 163A of the Act of 1988 and hold that the claimants would be entitled for compensation on the income of Rs. 40,000/-p.a. As usual on deduction of 1/3rd amount towards personal expenses, the total amount of dependency would come to Rs. 26,666/-. It was submitted that the age of the deceased was around 25 years. The tribunal has applied the multiplier of 17, which is on lower side and as per the Schedule, proper multiplier would be 18, which has not applied by the Tribunal. Therefore, we apply the multiplier of 17 and assess the total compensation as Rs. 4,79,988/-and we further award a sum of Rs. 9,500/-in various other heads as mentioned in the schedule and award total of compensation of to Rs. 4,89,488/-, which is rounded to Rs. 4,90,000/-. This amount shall also carry interest @ 9% p.a. from the date of filing of claim petition i.e. 1.2.2001. The Insurance Company shall be entitled to deduct the amount already paid to the appellants. The apportionment of the amount of compensation amongst various claimants shall be as per the directions of the Claims Tribunal.
17. Consequently, this appeal is allowed. The award passed by the Claims Tribunal is modified to the extent indicated above. Parties to bear their own costs.