Bombay High Court
Bajaj Allianz General Insurance Co. ... vs Smt. Shobha Babanrao Khose And Others on 14 November, 2019
Equivalent citations: AIRONLINE 2019 BOM 2546
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
First Appeal Stamp No.14852 of 2016
APPELLANT : Bajaj Allianz General Insurance Co.
Ltd.,
Nagpur Office, through the Senior
Executive Claims (Legal), 7th Floor,
Shriram Towers, Near N.I.T. Building,
Sadar, Nagpur.
Vs.
RESPONDENTS: 1] Smt. Shobha Babanrao Khose
Aged about 35 years,
Occ.Household,
2] Kailash Babanrao Khose,
Aged about 19 years, Occ. Education,
3] Shubham Babanrao Khose,
Aged about 17 years as on the date of
petition, now Major, Occ. Education,
All R/o C/o Ganesh Tondpe, Kolhe
Layout, Yavatmal, Tq. and Dist.
Yavatmal
(Orignal Applicants)
4] Mohd. Rafique Sk. Karim,
Aged adult, Occ. Transportation,
R/o Sonwadhona, Tq. Ner,
Dist.Yavatmal,
At present R/o Tayade Nagar,
Yavatmal,
(Owner of Truck No.CG-04/G-1086).
Mr.D.N. Kukday, Advocate for appellant
Mr.V.D.Darne, Advocate for respondents No.1 to 3
CORAM : MANISH PITALE, J.
RESERVED ON : 19/09/2019
PRONOUNCED ON : 14/11/2019
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JUDGMENT
The contesting respondents No.1 to 3 (original claimants before the Motor Accident Claims Tribunal, Yavatmal), entered appearance through counsel and with the consent of the learned counsel appearing for rival parties this appeal was taken up for final hearing and disposal.
2. By the present appeal, the appellant insurance company has challenged judgment and order dated 10/03/2016, passed by the aforesaid Tribunal, whereby claim petition filed on behalf of respondents No.1 to 3 under Section 163-A of the Motor Vehicles Act, 1988, was allowed and the appellant as well as respondent No.4 jointly and severally were directed to pay quantum of compensation to the respondents No.1 to 3 as specified in the impugned order.
3. The learned counsel appearing for the appellant insurance company has raised a short ground of challenge contending that the claim petition filed by the respondents No.1 to 3 before the Tribunal under Section 163-A of the aforesaid Act was not maintainable. According to the learned counsel for the appellant, a perusal of the averments made in the claim petition itself demonstrated that the said petition was not maintainable under the aforesaid provisions as the annual income of the deceased was well beyond the prescribed limit of Rs.40,000/- per annum.
4. It was submitted that the respondents could have maintained the claim petition under Section 166 of the ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 3 fast14852.16.odt aforesaid Act and that, therefore, the impugned judgment and order passed by the Tribunal deserved to be quashed and set aside.
5. The facts leading up to filing of the present appeal are that the husband of the respondent No.1 met with an accident on 03/12/2008, when he was riding his motorcycle, which dashed into a stationary truck owned by the respondent No.4 and insured with the appellant insurance company. In the claim petition filed on behalf of the respondents No.1 to 3, it was claimed that the accident occurred due to negligent manner in which the said truck was parked. It was specifically pleaded in the claim petition that the deceased was earning salary of Rs.5615/- per month.
6. The appellant insurance company opposed the claim petition, inter-alia, challenging the maintainability of the same on the ground of monthly income under Section 163-A of the said Act.
7. The Tribunal rejected the said contention of the appellant in the impugned judgment and order by taking into consideration various judgments of the Hon'ble Supreme Court and High Court, wherein it was noticed that Schedule II to the said Act relatable to Section 163-A of the aforesaid Act had become redundant in view of the increased prices of daily need articles and inflation. The Tribunal also found that the respondents No.1 to 3 could not prove that the deceased was earning income of Rs.5616/- per month. Thereupon, the Tribunal proceeded to consider the monthly income of the deceased as Rs.3500/- per month and upon taking that as a ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 4 fast14852.16.odt basis, the Tribunal calculated amount of compensation payable to respondents No.1 to 3.
8. Mr.D.N.Kukday, the learned counsel appearing for the appellant insurance company contended that the moment the respondents No.1 to 3 came up with a case before the Tribunal in the claim petition that salary of the deceased was Rs.5615/- per month, which was clearly above the upper limit of the annual income of Rs.40,000/- specified in Schedule II of the aforesaid Act, the claim petition under Section 163-A of the Act was not maintainable. It was submitted that the Hon'ble Supreme Court had noted distinction between the claim petitions filed under Section 163-A and Section 166 of the aforesaid Act. On this basis, it was submitted that when the stated income of the deceased was well beyond the annual income of Rs.40,000/-, the Tribunal ought to have dismissed the claim petition as not maintainable and that the respondents No.1 to 3 had opportunity to file an appropriate claim petition under Section 166 of the said Act. It was emphasized that Section 163-A of the aforesaid Act was incorporated by way of amendment to provide relief to claimants in the cases where the deceased or permanently disabled due to an accident arising out of use of motor vehicle, were earning annual income of Rs.40,000/- or less. On this basis alone, the learned counsel appearing for the appellant submitted that the impugned judgment and order deserved to be quashed and set aside. Reliance was placed by the learned counsel appearing for the appellant on the Judgments of the Hon'ble Supreme Court in the cases of Oriental Insurance Company Limited Vs. Hansarajbhai V. Kodala & Ors., I (2001) ACC 618 (SC), Deepal Girishbhai ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 5 fast14852.16.odt Soni Vs. United India Insurance Co. Ltd. I (2004) ACC 728 (SC) and judgment of Kerela High Court in the case of United India Insurance Co. Ltd. Vs. Akbar Shihab III (2012) ACC 585.
9. On the other hand, Mr. V.D. Darne, learned counsel appearing for the contesting respondents No.1 to 3 submitted that there was no substance in the contention raised on behalf of the appellant insurance company. It was submitted that in various judgments, the Hon'ble Supreme Court had taken note of the fact that with the passage of time Schedule II of the aforesaid Act had become redundant, with the increase in inflation and the fact that the prices of essential commodities had increased manifold. The Hon'ble Supreme Court in various judgments had, therefore, modified the Schedule and in that view of the matter, the insistence upon outer limit of annual income of Rs.40,000/- was unsustainable. It was submitted that once it was found that the said limit as specified in the Schedule was not mandatory, the basis of the contentions raised on behalf of the appellant was taken away. On this basis, it was submitted that the appeal deserved to be dismissed and the compensation granted by the Tribunal was required to be confirmed. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Puttamma and others Vs. K.L. Narayan Reddy and another AIR 2014 SC 706 and National Insurance Company Vs. Pranay Sethi and others 2017(16) SCC 680.
10. Having heard the learned counsel for rival parties, the point that requires to be determined in the present appeal, is as to whether the claim petition filed on ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 6 fast14852.16.odt behalf of the respondents No.1 to 3 under Section 163-A of the said Act could be said to be maintainable.
11. In order to determine the said point, it would be necessary to refer to the said provision i.e. Section 163-A of the aforesaid Act. The said provision reads as follows :
"Special provisions as to payment of compensation on structured formula basis :
(1) Notwithstanding anything contained in this At 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 of 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 subsection (i) of Section 163-A of the said Act, Schedule II to the Act becomes relevant. A perusal of the same would show that annual income is specified, which starts from Rs.3,000/- and goes up to Rs.40,000/-. Various factors like age of the victim, applicable multiplier and such other factors are specified in the said Schedule. A perusal of ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 7 fast14852.16.odt the above quoted provisions along with Schedule II would show that indicators for calculating compensation payable are specified and such specifications are only for annual income upto Rs.40,000/-.
13. There can be no doubt about the fact that the claim petition under Section 163-A is distinguishable from the claim petition made under Section 166 of the said Act. One of the distinguishable features is that in a claim under Section 163-A of the said Act, the claimants need not plead or prove that the death or permanent disablement had occurred due to any wrongful act or negligence on the part of the owner of the vehicle involved in the accident.
14. This distinction has been noted by the Hon'ble Supreme Court in its judgment in the case of Oriental Insurance Co. Ltd. Vs. Hansarajbhai V. Kodala & Ors. (supra), and it has been found that compensation under Section 163-A of the said Act is awarded without proof of any fault for getting compensation. Later a Larger Bench of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (supra) held that while the case of Oriental Insurance Company Limited Vs. Hansarajbhai V. Kodala & Ors. (supra) was correctly decided, but, it was clarified that Section 163-A of the said Act was a social security provision providing that only those claimants whose annual income was up to Rs.40,000/- could take benefit thereof and all other claims were required to be determined under Chapter XII of the said Act. Thus, it was made clear that where the annual income of the deceased or permanently disabled was more than Rs.40,000/-, the claim petition would ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 8 fast14852.16.odt have to be filed under Section 166 of the aforesaid Act, which falls in Chapter XII thereof.
15. This position of law had been followed in the case of United India Insurance Co. Ltd. Vs. Akbar Shihab (supra), wherein it has been held that after making reference to the judgment of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (supra), that in a claim under Section 163-A of the said Act, there should be specific averments to the fact that annual income of the claimant did not exceed Rs.40,000/-.
16. In this backdrop, it would be now be appropriate to peruse the averments made on behalf of the respondents No.1 to 3 in the claim petition filed before the Tribunal. In the said petition, while stating the particulars in respect of the deceased, it was specifically stated that the monthly income of the deceased was about Rs.5615/- per month. In paragraph IV (A) of the said petition, it was stated that the deceased was working with Ganga Fertilizers, Yavatmal and he was earning monthly salary of Rs.5615/-. On this basis, annual income of the deceased was stated to be Rs.67,392/- and thereupon, after making calculations a claim of Rs.3,24,500/- was raised on behalf of respondents No.1 to 3. Thus, it becomes clear that in the claim petition itself respondents No.1 to 3 had categorically stated that the income of the deceased was well beyond Rs.40,000/- per year. Considering the position of law clarified by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (supra), it becomes clear that ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 9 fast14852.16.odt the Tribunal in the present case could not have entertained the claim petition under Section 163-A of the aforesaid Act.
17. A perusal of the impugned judgment and order shows that the Tribunal held that the claim petition was maintainable by referring to various judgments wherein it was held by the Hon'ble Supreme Court that Schedule II to the Act had been rendered redundant with passage of time due to increase in prices as also inflation. This was the nature of the contentions raised on behalf of the respondents No.1 to 3 even before this Court, in support of which reliance was placed by the learned counsel for the said respondents on the judgment of the Hon'ble Supreme Court in the case of Puttamma and others Vs. K.L. Narayan Reddy and another (supra). The learned counsel placed much emphasis on paragraph 53 of the said judgment wherein the Hon'ble Supreme Court observed that Schedule II was enacted in 1994 and it had now become redundant, irrational, unworkable.
18. In this context, the learned counsel for the appellant insurance company is justified in pointing out that the case of Puttamma and others Vs. K.L. Narayan Reddy and another (supra) concerned a claim moved on behalf of claimants under Section 166 of the said Act i.e. under Chapter XII thereof. The judgments on which the Tribunal also relied were cases where the claimants had filed applications under Section 166 of the said Act. It was while deciding the claims under the said provision that in various judgments it was held that the multiplier as also other factors indicated in Schedule II had become redundant due to manifold increase in prices.
::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 :::10 fast14852.16.odt But, the law laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (supra), clearly lays down that a claim petition under Section 163-A of the said Act provided a distinct claim only for those whose annual income was up to Rs.40,000/-. A perusal of above quoted Section 163-A of the Act would show under subsection (3) thereof, Central Government may amend Schedule II from time to time. Thus, when a claim is filed under Section 163-A of the said Act, it is necessary that annual income of the deceased or permanently disabled is less than the upper limit of Rs.40,000/- specified in Schedule II, as held by the Kerela High Court in the aforesaid judgment in case of United India Insurance Co. Ltd. Vs. Akbar Shihab (supra).
19. Another relevant circumstance pointed out by the learned counsel appearing for the appellant is that while in the claim petition under Section 166 of the aforesaid Act, the claimants were required to prove the negligence of the offending vehicle, in claim petition under Section 163-A of the Act, there was no necessity to prove the said negligence or fault. In this context, it was pointed out that in the present case, the FIR (Exh.45) showed that it was registered against the deceased himself. In the oral report leading to registration of FIR, it was stated by the complainant that when he asked the servant of the deceased, who was riding with the deceased on the motorcycle, about the incident he informed that the motorcycle rammed into the truck which was standing on the side of the road. This was a relevant document in the present case. Although, this Court refrains from commenting on the aspect as to whether the said ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 11 fast14852.16.odt document or other material on record would show as to who was negligent or at fault when the accident took place, what is relevant is that in a claim petition under Section 163-A of the said Act, the claimants were not required to prove the fault or negligence of the offending vehicle and they could still be entitled to claim compensation. But, the same would be maintainable only if the annual income of the deceased was less than Rs.40,000/-.
20. In the present case, this Court is of the opinion that the Tribunal committed an error in relying upon judgments wherein observations were made about Schedule II, pertaining to cases where claim petitions were filed under Section 166 of the said Act. The Tribunal erred in holding that since such observations were made by the Hon'ble Supreme Court and High Court, the limit of annual income of Rs.40,000/- could not be said to be applicable and that the claim petition filed by the respondents No.1 to 3 under Section 163-A of the said Act was maintainable.
21. The Tribunal found that the claimants had failed to prove monthly income of the deceased being Rs.5615/- per month, but, it proceeded to calculate the monthly income of Rs.3500/-. Even if that be so, the annual income of the deceased goes beyond the limit of annual income of Rs.40,000/-, as specified under Section 163-A of the said Act. This aspect was completely missed by the Tribunal while holding that the claim petition was maintainable and then proceeding to calculate the quantum of compensation payable to the respondents No.1 to 3.
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22. In view of the above, it is found that the impugned judgment and order passed by the Tribunal is not sustainable and that it deserves to be quashed and set aside. It is held that in view of the specific averments made in the claim petition filed by the respondents No.1 to 3 regarding the monthly income of the deceased being Rs.5615/- per month, claim petition under Section 163-A of the said Act was not maintainable and the Tribunal could not have entertained the same.
23. Accordingly, the writ petition is allowed. The impugned judgment and order passed by the Tribunal is quashed and set aside and claim petition filed on behalf of the respondents No.1 to 3 under Section 163-A of the said Act is dismissed as not maintainable.
24. At the same time, it is held that the respondents No.1 to 3 would be at liberty to file an appropriate claim petition claiming compensation under Chapter XII of the said Act, more specifically under Section 166 of the said Act so as to ventilate their grievances and to claim compensation in respect of accident that occurred on 03/12/2008, whereby the husband of respondent No.1 unfortunately died. The respondents No.1 to 3 would have to prove the necessary ingredients for claiming compensation under Section 166 of the said Act.
25. It is made clear that this Court has made no observations on the question as to whether the ingredients for claiming compensation under Section 166 of the said Act are found in the present case or not. If the respondents No.1 to 3 ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 ::: 13 fast14852.16.odt choose to file the claim petition under Section 166 of the aforesaid Act before the Tribunal, it shall be considered by the Tribunal in accordance with law.
26. Consequent to the appeal being allowed, the appellant - Insurance Company is permitted to withdraw the entire amount that was deposited in this Court.
27. The appeal is allowed in above terms. The record be sent back to the Tribunal forthwith.
JUDGE MP Deshpande ::: Uploaded on - 15/11/2019 ::: Downloaded on - 16/11/2019 00:56:59 :::