Gujarat High Court
Pushpalattaben Navinchanda vs Gujarat State Road Transport ... on 24 September, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/3313/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3313 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PUSHPALATTABEN NAVINCHANDA
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION
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Appearance:
MS AMRITA AJMERA(5204) for the PETITIONER(s) No. 2,3,4
MS.AMRITA JMERA for the PETITIONER(s) No. 1
DELETED(20) for the RESPONDENT(s) No. 2,3
MS SEJAL K MANDAVIA(436) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 24/09/2018
CAV JUDGMENT
1. Heard learned advocate Ms. Amrita Ajmera for the petitioners and learned advocate Ms. Sejal K. Mandaviya for respondent No.1. Respondent Nos. 2 and 3 were deleted from the cause title considering that issue raised in the matter is purely on law point, when claim petition under Section 166 of the Motor Page 1 of 39 C/SCA/3313/2016 CAV JUDGMENT Vehicle Act by the petitioner has been dismissed by the Tribunal under Motor Vehicles Act, 1956 (for short the Act'), only on the ground that compensation under Section 163A is already awarded to them.
2. It is undisputed fact that petitioners herein are original claimants before the Motor Accident Claims Tribunal of Surendranagar in Motor Accident Claims Petition No.812 of 1998. It is also undisputed fact that one Navinchandra Chimanlal being husband of the petitioner No.1 and father of the petitioner Nos. 2 to 4 had met with a vehicular accident on 29.08.1998 wherein he was crushed by the State Transport Bus No. GJ 1 Z 1072 because of rash and negligent driving in speed by its driver in State Transport Bus Stand at Surendranagar. It is also undisputed fact that said victim of the accident was pedestrian and he was hit by the bus and thereafter when he was fall down on road and even thereafter bus could not stopped but ran over such human being and crushed him. At present practically there is no disputed regarding incident, nature of incident and its result wherein a human being has lost his life because of rash, negligent and care less driving by driver of the State Transport bus i.e. a Public Transport vehicle.
3. Because of such death of the victim, petitioners being legal heirs and dependents of the victim have preferred Motor Accident Claims Petition No.812 of 1998 before the Tribunal. It is quite clear Page 2 of 39 C/SCA/3313/2016 CAV JUDGMENT and obvious that though there is no specific reference in claim petition being Exh. 1 before the Tribunal that such application is preferred under Section 166 of the Act, it is certainly under such provision, when claimants have claimed Rs.20,00,000/- towards compensation on following basic factual details; (1)Victim was aged 59 years.
(2)He was serving in post office.
(3)He was getting Rs.3560/- as pension, after retirement from postal services.
(4)After retirement he was working as short duty staff in post office and getting Rs.1000/- and thereby his monthly earning was Rs.4500/-.
(5)It is also claimed that his prospective income is Rs.10,000/- to Rs.12,000/-.
3.1 Therefore, when Rs.20,00,000/- are claimed based upon the above factual details and more particularly when on the date of filing such claim petition on 20.10.1998 itself i.e. with the claim petition itself, when in turn application is preferred at Exh. 5 under Section 163A of the Act, it becomes clear that main petition is under 166 of the Act and not under Section 163A of the Act. So far as application at Exh. 5 under Section 163A is concerned, there is categorical disclosure after the cause title that it is an application for interim compensation under Section 163A of the Act. Therefore, also it is quite clear and obvious that both these applications are Page 3 of 39 C/SCA/3313/2016 CAV JUDGMENT not in option of each other but main claim is under Section 166 of the Act, whereas there is an application for interim compensation under Section 163A of the Act before the Tribunal as back as in the year 1998.
4. Such application at Exh. 5 for interim compensation has been allowed by an order dated 15.04.2000 wherein it is made clear that amount awarded by such order is to be adjusted in the final order of the compensation payable to the petitioners. Therefore, also it is clear that award by such order below Exh. 5 is not final order. It is also undisputed fact that by such order below Exh. 5 an application for interim compensation, the Tribunal has not considered the prospective income of the deceased at the relevant time and awarded only schedule amount of compensation on other conventional heads like funeral expenses, loss of estate, loss of consortium, for which respectively RS.2000/-, Rs.2500/- and Rs.5000/- are awarded.
5. The Opponent driver and owner of the bus have though did not dispute the nature of accident or its result, contended before the Tribunal at the time of hearing of Exh. 5, an application for interim compensation, that since deceased was retired from services, his income would decrease and, therefore, his income at the time of accident cannot be taken into consideration. However, while allowing such application by an order dated 15.04.2000 while Page 4 of 39 C/SCA/3313/2016 CAV JUDGMENT awarding Rs.2,37,252/- as interim compensation (amongst which Rs.2,27,052/- towards loss of dependency considering Rs.3660/- for monthly income and 8 as suitable multiplier); the Tribunal has relied upon the judgment of division bench of this Court in the case of National Insurance Company vs. Jayvantiben in First Appeal No.6807 of 1999 decided on 05.11.1999.
6. Being aggrieved by such order of interim compensation, the respondent S. T. Corporation has preferred an appeal before this Court being First Appeal No.3414 of 2000 mainly on the ground of quantum of compensation only. By oral judgment dated 09.05.2012, the co-ordinate bench of this Court has dismissed the appeal and thereby confirmed the order below Exh. 5. Therefore, it becomes clear that an application under Exh. 5 is for interim compensation, which was allowed by the Tribunal and such order for interim compensation dated 15.04.2000 is confirmed by the High Court. Therefore, now it cannot be said that such application is a substantial application and not an application for interim compensation only because of reference of Section 163A in heading of such application. It is settled legal position that in given case disclosure of particular provision of law wrongly or improperly would not defeat the cause of the litigation. It is also clear and certain that the application is for interim compensation only and, therefore, claimants have not preferred an application under Section 140 of the Act. Therefore, it cannot be said that it was the Page 5 of 39 C/SCA/3313/2016 CAV JUDGMENT choice of the applicant to claim compensation under Section 163A i.e. under structural formula. Even section 163B of the act, which deals with the option to file claim, specifically confirms that when a person is entitled to claim compensation under Section 140 and Section 163A, he shall file claim under either of the above sections and not under both the sections. Thereby there is no option proposed by the legislature to file a claim petition either under Section 163A or Section 166 of the Act. It cannot be ignored that provisions for extending right to claim compensation is under Chapter XII of the Act regarding claims Tribunal wherein as per Section 166 an application for compensation arising out of accident of the nature specify in Sub Section (1) of Section 165 of the same chapter may be made either by the person who has sustained the injury or by the owner of the property or by all or any of the legal representative where death is resulted from the accident or by any agent, duly authorised by the injured or by any legal representative of the deceased, as the case may be.
7. The Honourable Supreme Court has considered the provisions of Section 163A of the Act in following citation as under;
In case of Puttamma vs. K. L. Narayana Reddy and anrs. Reported in AIR 2014 SC 706, Honourable the Supreme Court has with reference to Section 163A of the Act, under the heading of "Applicability of second schedule in the present scenerio" observed as under;
Page 6 of 39 C/SCA/3313/2016 CAV JUDGMENT
"By Act 54 of 1994, Section 163A - Special Provisions as to payment of compensation on structured formula basis has been inserted with effect from 14.11.1994. Section 163A envisages that notwithstanding any thing contained in the Act or in any other law or instrument having the force of law, the owner of the motor vehicle shall be liable to pay in the case of death or permanent disablement due to accident arising out the use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
The purpose of Section 163A 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.
Sub-section (2) of Section 163A envisages 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. Sub-section (3) of Section 163A envisages that 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, xxxx xxxx xxxx"
And after reproducing the text of the second schedule, it is further observed that;
"40. Perusal of Second Schedule shows that the legal heirs of the deceased person having an annual income, minimum Rs. 3,000/- and maximum Rs. 40,000/- could only derive benefit under Section 163A of the Act, 1988. Legal heirs of the deceased person whose income is more than Rs. 40,000/- per annum i.e. approximately Rs. 3,600/- per month cannot derive advantage of the Second Schedule. The largest multiplier envisaged is 18 in the case of victim "above 25 years of age" but not exceeding 30 years". The multiplier for the higher age is required to be re-looked in view of increase in life expectancy.
41. A minimum amount of compensation of Rs. 50,000/- was fixed under Second Schedule in the year 1994. In addition, general damages in lieu of funeral expenses, loss of consortium (if beneficiary is the spouse), medical expenses, pain and suffering, grievous injuries, non- Page 7 of 39 C/SCA/3313/2016 CAV JUDGMENT grievous injuries, etc. are also provided for. But no revision was made to these amounts in these 19 years.
42. In view of non-amendment of Second Schedule for 19 years, the appellant has also questioned the validity of the existing Second Schedule."
8. Whereas Section 163A of the Act provides for such provisions as to payment of compensation on structural formula basis, wherein the text of the Section starts with non - obstruct clause when it is stated that 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 disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule to the legal heirs of the victim, as the case may be. Such provision is now generally known as 'no fault liability' of the section is regarding payment of compensation on structural formula basis. Sub Section (2) of Section 163A makes it clear that in any claim under Sub Section (1), the claimants 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 owner of the vehicle or vehicles concerned or of any other person.
9. However, it is contended by the respondent - State Transport Corporation herein that considering the different decisions of the Page 8 of 39 C/SCA/3313/2016 CAV JUDGMENT Honourable Supreme Court of India as well as this High court, the claimant is not entitled to compensation under Section 166 of the Act, when they have received compensation under Section 163A of the Act. Thereby, when Corporation has taken such stand before the Tribunal, unfortunately the Tribunal has failed to realize that the order dated 15.04.2000 below Exh. 5 was for interim compensation and when such order was confirmed by the High Court in appeal preferred against such order, now it cannot be said that such order is final order. However, relying upon the contention of the Corporation and some judgments, the Tribunal has, in final impugned award, held that order below Exh. 5 under Section 163A is final award and thereby instead of disposing the petition on the ground that main claim petition is not to be adjudicated, partly allowed the petition stating that parties are entitled to only Rs.2,37,352/- awarded as interim compensation as final compensation in this petition also.
10. Being aggrieved by such order, the claimants have preferred this petition praying to issue writ of mandamus or writ in nature of mandamus or any other writ or order or direction to the learned Tribunal to heard the matter under Section 166 of the act and to quash and set aside the award dated 19.11.2015 being Exh. 44 before the Tribunal in Motor Accident Claims Petition NO.812 of 1998.
Page 9 of 39 C/SCA/3313/2016 CAV JUDGMENT
11. Though there are several judgments on the issue, the factual details are required to be referred again so as to realize the correct position in the given case;
the date of accident - 29.08.1998.
filing of claim petition - 28.10.1998.
Exh. 5 application for interim compensation was allowed on 15.04.2000.
First Appeal against such order of interim maintenance being First Appeal No.3214 of 2000 by the State Transport Corporation was dismissed on 09.05.2012.
Final award is dated 19.11.2015.
11.1 In background of above chronology of events, now let us examine the statutory provisions so also decisions on the subject.
12. The respondent - State Transport Corporation has contended that they have not challenged the order dated 15.04.2000 on different legal issues but challenge was limited to the quantum of compensation when Tribunal has awarded the compensation considering the earnings of retired person. Thereby though an attempt was made to make a point that since they have accepted the award under section 163A except quantum, now claimants are debarred from proceeding further under Section 166, the fact remains that respondent - Corporation has not taken such stand either before the Tribunal or before this Court at the time of order Page 10 of 39 C/SCA/3313/2016 CAV JUDGMENT below Exb.5 as interim compensation, which they have raised only after disposal of First Appeal No.3214 of 2014 submitting that in another petition being Motor Accident Claims Petition No.768 of 1998, the respondent - Corporation has given an application before the Tribunal to consider the order passed under Section 163A as final order and disposed off the claim petition as per decisions of the Honourable Supreme Court of India reported in 2004 ACJ 934 between Deepal Girishbhai Soni vs. United India Insurance Co. Ltd. It is evident from record that appellant herein has preferred an applciation before the tribunal to consider the order below exhibit 5 under Section 163A as final order in Motor Accident Claims Petition No.812 of 1998, and when such application has been allowed by the tribunal, the claimants in such claim petition No.768 of 1998 had preferred Special Civil Application No.15971 of 2011, wherein this High Court has set aside the order of the Tribunal by judgment dated 21.12.2013 and remanded the matter back for rehearing and thereby claim petition was heard and final award under Section 166 was passed on 11.06.2013 by awarding Rs.6,37,800/ - though there was an order under Section 163A below Exh. 5 in such petition. It is also contended by the claimants that Corporation has not challenged such judgment either in the Special civil Application or final award in Motor Accident Claim petition No.768 of 1998 and thereby selectively challenging the award in present case. To that extent, it is surprising to note that the respondents have certainly acted in selective manner. Thereby, Page 11 of 39 C/SCA/3313/2016 CAV JUDGMENT it is also submitted that in such petition No.768 of 1998 before the same Tribunal when by an order dated 15.04.2000 below Exh. 5 for interim compensation (the same date when order is present petition was passed) when amount of Rs.2,37,352/- has been awarded towards interim compensation, after full fledge trial by an award dated 11.06.2013, the Tribunal has awarded an amount of Rs.6,37,800/- and State Transport Corporation has not challenged such award but deposited an amount as per the award, whereas respondent has opposed the
13. The discussion herein above, makes it clear that the decision arising in such litigation is purely because of uncertainty in judicial proceedings in as much as there is different decisions for similarly situated claimants only because there matters were listed before different courts, may be at same time gap but that should not result into absolute discrimination and that too disadvantage to the similarly situated person, only because their case was decided differently by different Courts. In my humble opinion there cannot be a discrimination amongst similarly situated litigants, more particularly when they are widow of the victim of the road accident and more particularly when there was no role of the victim of road accident in the incident. Even at the cost of repetition I would like to make a comparison of both the cases in tabular form as under;
MACP NO. 768 of 1998 812 of 1998
Date of 30.05.1998 29.08.1998
Accident
Page 12 of 39
C/SCA/3313/2016 CAV JUDGMENT
Claimant Four claimants Four claimants
including widow of including widow of the
the victim of the victim of the road
road accident accident
Date of filing 28.09.1998 28.10.1998
Claim amount Rs.9,00,000/- Rs.20,00,000/-
in main
petition
Application Exhibit 5 under Exhibit 5 under Section
for interim Section 163A of the 163A of the Act
compensation Act
Date of Order 15.04.2000 15.04.2000
below Exhibit
5
Amount Rs.1,74,500/- Rs.2,37,352/-
awarded as
interim
compensation
below Exhibit
5
Details for
claim
Age of the 24 years 58 years
victim
Income of the Rs.4250/- per month Rs.4500/- per month victim Challenge of Probably not Challenged in First order dated challenged. Appeal No.3214 of 15.04.2000 by However, claimants 2009 by the opponent respondent have preferred State Transport State Special Civil Corporation Transport Application Corporation No.15791 of 2011 seeking directions to continue proceedings under Section 166 of the Act and for the purpose, deposited the amount received under Section 163A of the Act by own consent which is permitted by the Court.
Page 13 of 39 C/SCA/3313/2016 CAV JUDGMENT Result of Petition was allowed Appeal by the State above permitting the Transport Corporation litigation claimants to proceed against claimants has further under been dismissed. Section 166 but with However, it was not a condition to return contended and not the amount received decided by the Court under Section 163A. that on receipt of such Thereby, present amount, now claimants petition is are not entitled to practically equal to proceed further under Special Civil Section 166 Application No.15791 of 2011. Result of Petition was allowed The tribunal has held adjudication by an order dated that petition cannot be of main claim 11.06.2013 and proceeded further petition tribunal has under Section 166 of awarded the Act and, therefore, Rs.6,37,800/- partly allowed the towards application by compensation with confirming that award 9% interest. under Section 163A dated 15.04.2000 is final award and such amount is final compensation.
13.1 Therefore, the difference is quite visible when there are two deaths in couple of months in the same area and when claim petitions are preferred before the same Tribunal which was decided equally so far as application of interim compensation is concerned. But unfortunately probably there was no challenge of award of interim compensation in MACP No.768 of 1998 and when the Tribunal has, by an order dated 16.08.2010 below Exh. 36 refused to proceed further under Section 166, the High Court has modified such order and allowed the claim petition to be proceeded further under Section 166 only with a consent by the claimant to Page 14 of 39 C/SCA/3313/2016 CAV JUDGMENT deposit the amount of interim compensation received under Section 163 A before the Tribunal and permitted the insurance company to take necessary defence before the Tribunal. Whereas in present case, when quantum of compensation has been challenged before the High Court, no stand has been taken, probably till final order, that claim petition cannot be proceeded under Section 166 so as to unable the present appellant to proceed further as per the Special Civil Application No.15791 of 2001 and surprisingly the Tribunal has ordered that petition is partly allowed, whereby award made under Section 163A is treated as a final order.
14. Therefore, petitioners herein have preferred this petition for confirmation that they are entitled to appropriate, just and reasonable compensation under Section 166 since they have preferred main petition under Section 166 only and order in their favour under Section 163A was only for interim compensation and that order was confirmed even by the High Court by judgment dated 09.05.2012 in First Appeal No. 3214 of 2000 and that respondent has not taken such stand before recording of evidence so as to enable the claimant to follow the procedure as followed in 17591 of 2011. It is also contended that otherwise also award under Section 163A was passed based upon the pleadings only i.e. without recording evidence and it is settled legal position that for interim order, the court has to take decision based upon the prima Page 15 of 39 C/SCA/3313/2016 CAV JUDGMENT facie evidence only. It is quite obvious that the order below Exh.5 is not only for interim compensation but without appreciation of the evidence, that may be adduced by the claimants. It is also undisputed fact that in the present case, the Tribunal has not only allowed the claimant to adduce the evidence but allowed advocate of the respondent corporation to cross examine her and Tribunal has also allowed the parties to submit their case for award under Section 166 of the act before the conclusion that claim petition cannot be proceeded further under Section 166 of the Act and that order under Section 163A though as interim compensation is to be treated as a final order for compensation. Thereby, the Tribunal has failed to frame proper issue and failed in offering reasonable opportunity to claimants, so as to convince the Tribunal that in given facts and circumstances order under Section 163 A of the Act cannot be treated as order under Section 166 of the Act also.
15. It is also evident from record and that though proceedings that strict, procedural law may not be applied to such proceeding, though there is material error by the Tribunal in determining as above that claim petition cannot be proceeding further under Section 166, when interim compensation has already been granted under Section 163A without framing issue to that effect. Because the issues were framed at Exh. 29 does not clarify that the Tribunal is going to decide such issue that whether such claim petition can be proceeded under Section 166 or not. If such issue had been Page 16 of 39 C/SCA/3313/2016 CAV JUDGMENT framed then probably, claimants / appellants would have tried to confirm their rights. However, there is no such disclosure either in the issue at Exh. 29 or even in the award that whether it was ever observed on recorded of the proceeding before the Tribunal that such claim cannot be proceeded further under Section 166 of the Act.
16. Thereby the discussion herein above specifically makes it clear that this is not a case where claimants have first applied under Section 163A of the Act and then again applied under Section 166 or they want to change their application from one provision to another provision. Otherwise also it becomes clear that there was no clarity regarding effect of Section 163A since it was amended in the act of 1988, only in the year 1994 and for couple of years there were certainly different views prevailing amongst different courts that whether provision of section 163A is for interim compensation or whether compensation awarded under such section is to be considered as final compensation under the Act and thereby debarring the claimants to claim compensation under section 166 of the Act. In any case right to claim compensation under Section 163A is now identified as "no fault liability".
16.1 Therefore though at present it can be said that the settled legal position is to the effect that awarding compensation under Page 17 of 39 C/SCA/3313/2016 CAV JUDGMENT Section 163A would be final award and thereby there cannot be a claim under Section 166 of the Act, in my humble opinion this may not be true, correct and perfect legal proposition considering the overall scheme of the act and discussion herein under.
17. At first instance, it cannot be ignored that the statute nowhere confirms that claimants can prefer claim petition either under Section 163A or under Section 166. On the contrary while amendment of Section 163A and 163B by amendment act 54 of 1994, option to file claim in certain cases is categorically provided under Section 163B, which makes it clear that when a person is entitled to claim compensation under Section 140 and Section 163A, he shall file a claim under either of the said sections and not under both. Therefore, the statute has specifically confirmed the option between Section 140 and Section 163A and not between 163A and 166 as prevailing in practice at present. Such fact would be confirmed if we refer Second Schedule to the Act, which is amended pursuant to Section 163A of the Act, wherein in the second paragraph, after the tabular details regarding income, multiplier and proposed amount for compensation in death cases, it is categorically stated that amount of compensation would not be less then Rs.50,000/-. It is also clear that Section 140 was also amended by Amendment Act, 54 of 1994 by inserting Section 163A so as to substitute "Rs.25,000/-" to the words "Rs.50,000/-" for the amount of compensation which shall be payable under Sub Section Page 18 of 39 C/SCA/3313/2016 CAV JUDGMENT (1) of Section 140 in respect of death of any person. Therefore, the intention of legislature is quite clear that dependents and legal heirs of the deceased victim must get minimum Rs.50,000/- immediately after the incident, when they claim compensation under Section 166, by virtue of provisions of Section 140. However, when it was found that an amount of Rs.50,000/- would also not to substantive amount as interim compensation, which is broadly known as "no fault liability", legislature has inserted the Section 163A and 163B so as to enable the claimants of the class, when yearly income of the victim is upto Rs.40,000/-, to get some good amount of compensation based upon the available undisputed evidence for age and income of the victim so that his dependents widow and minors may not have to beg for their livelihood because by passage of time, the time for deciding such claim petition has almost increased to a decade or so. Therefore, while fixing the schedule compensation in case of salaried lower income group victim, when amount of compensation is fixed by the statute, the legislature has probably think it proper that irrespective of different claims by different claimants, let them have some fixed amount on other conventional heads viz. funeral expenses, loss of consortium (if beneficiary is spouce), and loss of estate, so also medical expenses incurred before the death and fixed minimum amount on all such heads. However, when Section 163B which is immediately after 163A and inserted by the Amended Act 54 of 1994, by which Section 163A is inserted to the main Act provides Page 19 of 39 C/SCA/3313/2016 CAV JUDGMENT that the option to claim compensation either under Section 140 or 163A, by any means it cannot be presumed and say that provision of Section 163A is in option of provisions of Section 166.
18. The other reason for such proposition is quite clear that under Section 166 there would be a general claim on all different heads wherein the amount of compensation would be different from case to case, though generally we are following arithmetical calculation while awarding such compensation. In simple words if there is an ample evidence that deceased victim was having sufficient income to invest certain amount, then probably Court / Tribunal may award some good amount for the loss of estate and if medical expenses / actual expenses incurred before the death supported by bills and vouchers are for more than Rs.15,000/-, by all means that being actual expenditure incurred by the claimants they are entitled to such amount which cannot be restricted in any case. However, in second schedule in para 3 (IV) the Statute has restricted such award to Rs.15,000/- only. Therefore, it becomes clear that even if claim is made under Section 163A the legislature does not want the claimants to get less than what is available under Section 140, because for example if we consider a case of person above 65 years having income between Rs.3000/- to Rs.9000/- per annum so also a person of any age between 30 to 65 years but having yearly income of Rs.3000/- only, the total amount of compensation under schedule is Rs.50,000/- less 1/3rd i.e. Page 20 of 39 C/SCA/3313/2016 CAV JUDGMENT Rs.33,334/- + Rs.9500/- under different conventional heads. Thereby, total award is of Rs.42,834/- only. However, Statute has confirmed that even in those cases the amount of compensation shall not be less then Rs.50,000/- since under Section 140 he is entitled to in all Rs.50,000/-. Thereby, by all means, award under Section 163A is optional for Section 140 and not in lieu or in optional with Section 166.
19. It is also now clear that in some of the decisions, some of the courts have opined that there is an error in such Second Schedule whereas in some of the decisions, the some of the Courts have observed that there is no such error. Without entering into such controversy, if we consider the simple example of a person aged 65 years or above with only Rs.3000/- as annual income, then in general law, in case of his death, his legal heirs would be entitled to Rs.3000/- less 1/3rd amount towards personal expenses. Thereby, total Rs.2000/- as annual dependency and considering the age of the victim irrespective of schedule II they would not be entitled to multiplier of more than 5 and, therefore, 2000 annual dependency for 5 would come to only Rs.10,000/- whereas in Second Schedule, the amount suggested is Rs.50,000/- and as calculated herein above it would amount to actual award of Rs.42,834/- but considering the provisions of Section 140 it is stated that amount of compensation shall not be less then Rs.50,000/- and, therefore, the figure of Rs.50,000/- is shown in schedule II in several contingencies Page 21 of 39 C/SCA/3313/2016 CAV JUDGMENT because there cannot be an award less than Rs.50,000/- pursuant to provisions of Section 140 of the Act.
20. Irrespective of above discussion, though there is substance in the petition for awarding just and reasonable compensation in favour of the victims or his legal heirs, when Tribunal has failed to consider certain legal aspects in its proper perspective and when respondents are also pressing for consideration of such legal aspect in its favour, when Tribunal has so decided and relied upon certain decisions, though the matter can be put to an end by awarding just and reasonable compensation to the legal heirs of the victim of road accident, to avoid any assailation, I have no option, but to discuss the citations and the issue raised by the respondents.
20.1 In addition to the decision in the case of Deepal Girishbhai Soni & Ors. Vs. United India Insurance Co. Ltd. reported in (2004)5 SCC 385 so also the decision in the case of Oriental Insurance Co. Ltd. Vs. Dhanbai Kanji Gadhvi reported in (2011)11 SCC 513, the respondents have referred and relied upon the decision in the case of Madinabibi Dasotbhai Sheikh & Ors. Vs. Jagdishchandra Ramanlal Kachiya - Patel & Anr. in First Appeal No.1998 of 2017 dated 23.6.2017, wherein relying upon the case of National Insurance Company Ltd. Vs. Mastan & Anr. reported in (2006)2 SCC 641 and some other decisions, the Co-ordinate Bench has held Page 22 of 39 C/SCA/3313/2016 CAV JUDGMENT that when claimants opted to have benefit of Section 166 of the MV Act and thereby, having exercised the right to evoke provision of MV Act and thereby, having received compensation under the MV Act, they would not be able to maintain another claim petition under Section 10 of the Workmen's Compensation Act ('WC Act',for short). Therefore, prima facie, the facts and disputes are altogether different in the cited case as well as in the present case, inasmuch as in the cited case, the claimants have preferred claim under two different statutes i.e. MV Act and WC Act and therefore, considering the provision of Section 167 of the MV Act, when there is specific ban to claim compensation under both the Acts, Co- ordinate Bench has held so in favour of the Insurance Company and thereby, against the claimants, who have preferred claim under both the statutes i.e. MV Act as well as WC Act. For better understanding of such option, bare reading of Section 167 of the MV Act is relevant, which is reproduced herein under, wherein there is specific clarity about option to claim compensation under either of the Act. However, there is no such situation in the present case and therefore, such decision would not help the respondents. Section 167 of the MV Act reads as under:-
167. Option regarding claims for compensation in certain cases.--Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Page 23 of 39 C/SCA/3313/2016 CAV JUDGMENT Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
21. The respondents are relying upon judgment of Division Bench of this court between Hansaben @ Hansbai Budharam Maheshwari Wd/o.Budharam Aatmaram Maheshwari Vs. Govind Malshi Danicha dated 14.7.2016 in First Appeal No.1380 of 2016 wherein relying upon Deepal Girishbhai Soni's case (supra) and Dhanbai Kanji Gadhvi's case (supra), it is held that once the claimants received the compensation under Section 163A of the MV Act, thereafter, the application for compensation under Section 166 of the MV Act shall not be applicable and thereby, in similarly situated facts and circumstances, when Tribunal has refused to proceed further under Section 166 of the MV Act by dismissing the claim petition, in First Appeal, this court has confirmed the dismissal of the claim petition by such judgment. However, the fact remains that the judgment under reference has been challenged before the Hon'ble Supreme Court of India in Civil Appeal No.19981 of 2017 wherein the appellants - claimants, whose claim and appeal was dismissed by Tribunal and this court respectively, have raised following questions of law:-
(i) Whether prior to the judgment dated 18.3.20104 delivered by this Hon'ble Court in Deepal Girishbhai Soni Vs. Page 24 of 39 C/SCA/3313/2016 CAV JUDGMENT United India Insurance Co. reported in (2004)5 SCC 385, an application for compensation under Section 163A of the Act was being considered as an interim application claiming interim compensation on "No Fault Liability" basis only, and hence did not preclude grant of final compensation under Section 166 of the Act on Fault Liability basis? And;
(ii) Whether the aforestated judgment of Deepal Girishbhai Soni Vs. United India has retrospective applicability or prospective applicability? The effect being that if it operates prospectively, then all applications under Section 163A of the Act, decided prior to the aforestated judgment would continue to operate as interim applications and would not preclude the Courts from deciding Applications under Section 166 of the Act, giving credit of the amount paid U/s.163A.
22. The appellants before the court have also pointed out that the larger Bench of Hon'ble Supreme Court of India has in the case of Deepal Girishbhai Soni (supra) clarified as under:-
"One, thus must opt or elect to go either for a proceeding under section 163-A or under section 166 of the Act, but not under both."
23. The factual scenario is almost common in the present case as well as in the case under reference i.e. the judgment in Deepal Page 25 of 39 C/SCA/3313/2016 CAV JUDGMENT Girishbhai Soni's case (supra), which is delivered on 18.4.2004 and therefore, it is applicable prospectively only, since till then, though there is no ambiguity in statute, atleast there are different opinions of different courts and therefore, order under Section 163(A) was considered as interim order till such decision in the case of Deepal Girishbhai Soni (supra) i.e. till 18.3.2004. It is admitted position that in the present case, the incident has taken place as back as in the year 1998 i.e. on 28.8.1998 and an application at Exh.5 under Section 163(A) was filed on 28.10.1998 while filing the main claim petition under Section 166, which was allowed on 15.3.2000 and when such interlocutory interim order was challenged by respondents in First Appeal No.3214 of 2000, they have never challenged the continuity of such main claim petition, but simply challenged the quantum of compensation and when such First Appeal was dismissed by judgment and order dated 9.5.2012, there was no restriction or ban upon the claimant to proceed further under Section 166 of the MV Act. Thereafter, evidence of the claimant was recorded for determining just and reasonable compensation because order below Exh.5 dated 15.4.2000 was based upon prima facie evidence and pleadings only i.e. even without recording any evidence.
23.1 In view of above situation, the fact remains that the effect of Deepal Soni's judgment (supra) would be such that if the claimants voluntarily accept the compensation under Section 163(A) of the Page 26 of 39 C/SCA/3313/2016 CAV JUDGMENT MV Act after 18.3.2004, they may be debarred from proceeding with application under Section 166 of the MV Act. However, those claimants, who have received compensation under Section 163(A) prior to 18.3.2004, cannot be debarred from proceeding with application under Section 166, because at the time of institution of claim petition and prior to 18.3.2004, applications under Section 163(A) and Section 166 of the MV Act were maintainable as per the decision in Ramdevsing V. Chudasma vs. Hansrajbhai V. Kodala reported in 1999 ACJ 1129, Ishwarbhai Babubhai Vaghela Vs. Ranjanben Gokalbhai Prajapati reported in 2002 ACJ 69 and Oriental Insurance Co. Ltd. Vs. Sushilaben Manubhai Valand reported in 2002 ACJ 1181.
24. The above facts and submissions were made before the Hon'ble Supreme Court of India in Civil Appeal No.19981 of 2017 wherein the Hon'ble Apex Court has after considering the submissions by the claimants before it on such legal aspect, without discussing the legal issues, by its order dated 29.11.2017, awarded additional amount of compensation to the tune of Rs.6.5 Lacs to the claimants whose claim petition was dismissed by the Tribunal only on the ground that since they have received compensation under Section 163(A) of the MV Act, now, they are debarred to claim further compensation under Section 166 of the MV Act and such determination of the Tribunal was confirmed by the Division Bench of this court. Therefore, only because Division Page 27 of 39 C/SCA/3313/2016 CAV JUDGMENT Bench of this court has decided one matter in favour of the Insurance Company and thereby, against the claimants, holding that once the claimants received the compensation under Section 163(A) of the MV Act, the application for compensation under Section 166 of the MV Act, shall not be applicable, has no force. It cannot be ignored that the decision of the Hon'ble Supreme Court of India, awarding additional Rs.6.5 Lacs to such claimants, practically, overrules such decision of the Division Bench though there is no discussion on law point in its order dated 29.11.2017. 24.1 In view of above discussion, now, practically, it becomes clear that decision in the case of Deepal Girishbhai Soni (supra) and Dhanbhai Kanji Gadhvi (supra) applies prospectively and not retrospectively and therefore, in the present case, when order under Section 163(A) is prior to the decision in the case of Deepal Soni (supra) on such factual aspect itself, the petition needs to be allowed as prayed for because of the order dated 29.11.2017 in Civil Appeal No.19981 of 2017 by Hon'ble the Supreme Court of India.
25. As against that, the petitioners are relying upon several decisions, which are in their favour, which are listed as under:-
a) decision dated 29.11.2010 in Special Civil Application 2851 of 2010 - Janardanbhai A. Dholakia Vs. Kalpesh Page 28 of 39 C/SCA/3313/2016 CAV JUDGMENT Building Materials & Ors.;
b) decision dated 24.12.2010 in Special Civil Application No.15775 of 2010 - Sankarbhai Jugabhai Vs. Abaysang Dhirubha Parmar;
c) decision dated 21.2.2013 in Special Civil Application
No.15971 of 2011 - heirs of deceased of Riyaz
Abdulraahmanbhai Abulrehmanbhaikesa & Anr. Vs.
G.S.R.T.C.
25.1 In above-referred decisions, different Co-ordinate Benches of this court have confirmed that when the amount of compensation is claimed under Section 163A of the MV Act as interim compensation at the relevant time and when nobody has objected to such interim compensation, and thereby, it is held that it would not be correct to hold that such compensation be treated as final compensation and thus, quashed and set-aside the order of the Tribunal, refusing to proceed further under Section 166 of the MV Act, only because there is order of compensation under Section 163A and since such order was interim compensation and directed the Tribunal to decide the claim petition in accordance with law expeditiously.
Though in one of such case, claimants on their own have come forward to redeposit the amount of interim compensation awarded in their favour and though this court has confirmed such offer, in Page 29 of 39 C/SCA/3313/2016 CAV JUDGMENT remaining two cases, the Co-ordinate Bench has simply clarified that the amount already received by the claimants under Section 163A shall be subject to adjustment and it will be open for the Tribunal to award any just compensation, which may be even more or less than the amount already granted. Therefore, petitioners are right in relying upon such decision, submitting that they may be permitted to proceed further under Section 166 of the MV Act and in fact, though Tribunal has in practice allowed them to proceed further under Section 166 by allowing them to adduce evidence, unfortunately, after recording evidence, the Tribunal has come to the conclusion that claimants are not entitled to final award under Section 166 of the MV Act though award of compensation in their favour under Section 163A was below an application at Exh.5 for interim compensation and that too without recording evidence by the either side. Therefore, there is substance in the petition so as to allow it as prayed for.
26. Reference to the decision in the case of Heirs of deceased Devrajbhai Nathabhai Bhuva & Ors. Vs. Aumprakash Ramsurat Chauhan & Ors. reported in 2016(2) GLR 1643 is also relevant, wherein, this court has after discussing as many as 10 judgments and after relying upon the decision in the case of Jai Prakash Vs. National Insurance Co. Ltd., reported in (2010)2 SCC 607 observed and held as under:-
Page 30 of 39 C/SCA/3313/2016 CAV JUDGMENT
"Referring to provisions of Secs. 163A, 166 and 165 of Motor Vehicles Act, 1988 the Court observed that;
The bare perusal of both these Sections makes it clear that Section 163A provides for special provisions as to payment of compensation on structured formula basis confirming that the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arisen out of use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim."
Referring to provisions of under Sec. 140 of M.V. Act, 1988 the Court observed as under :
This proviso makes it quite clear and obvious that there may be an award of additional compensation in addition to the compensation paid either under Section 140 or under Section 163A with only restriction that in such situation, amount already awarded under either of such Sections, is to be reduced from the total amount to be awarded under any other provision. Therefore, provision of Section 163A is not alternative or equal to Section 166 but it is alternative or equal to the provisions of Section 140.
Initially, instead of claiming Rs.50,000/- under Section 140, Claimant can certainly claim suitable compensation under Page 31 of 39 C/SCA/3313/2016 CAV JUDGMENT Section 163A on structured formula and continue his claim petition under Section 166 to prove his income and negligence of other side to get full amount of compensation to be awarded under Sec.166.
Reducing the income would not change the nature of incident. Even if there is a request to consider the application under Section 163A, it would not change the nature of petition It is suffice to say that practically Claimants does not have to disclose that either they are claiming under Section 166 or under Section 163A. They cannot claim compensation both, under Sec.140 and under Sec. 163A, but they can certainly claim compensation under Section 163A irrespective of disclosure of Section 166 in the claim petition so also even if the total yearly income of the victim is Rs.80,000/-. Referring to provisions of under Secs. 166(4) and 158(6) of M.V. Act, 1988 the Court observed that;
If such report is to be treated as an application for compensation even without a formal application filed or preferred by the persons listed in sub section (1) of Section 166, then, it is quite clear and obvious that there is no reason or limitation that whether such application is filed under Page 32 of 39 C/SCA/3313/2016 CAV JUDGMENT Secs. 140, 163A or 166 of M.V. Act."
27. It cannot be ignored that provision of Section 163A is added in Chapter XI regarding insurance of motor vehicles against third party risk and not under Chapter XII regarding constitution and powers of Claims Tribunal so also right of claimants to claim compensation under General Law. It is also clear and certain that under the old Act of the year 1939, though there was no such provision like Section 163A of the present Act of 1988, Sections 92(A) to (E) were added by adding a new chapter as VIII(A) regarding liability without fault in certain cases and such provision was considered and treated as a right to receive compensation without proving fault of the other side with clarity in Section 92(E) of the Act of 1938, which is pari materia equal to Section 144 of the Act of 1988 that provision of Chapter shall have effect notwithstanding anything contained in any other provisions of this Act or any other law for time being in force. Whereas, provision of Section 163A and 163B is added as late as in 1994 in the Act of 1988 and by Section 163B, option to file claim is given between Sections 140 and 163A and not between Sections 163A and 166 of the MV Act. The only option in lieu of application under Section 166 is provided under Section 167 so as to select to claim compensation under either statute i.e. MV Act or WC Act. Therefore, in any case, it cannot be said that provision of Section 163A is optional to provisions of Section 166 and therefore, the Page 33 of 39 C/SCA/3313/2016 CAV JUDGMENT Claims Tribunal has failed to appreciate such proposition of law and therefore, there is substance in the Special Civil Application so as to quash and set-aside the impugned order dated 19.11.2005 in M.A.C.P. No.821 of 1998 by M.A.C.T. (Aux.) of Surendranagar, whereby without calculating just and reasonable compensation that may be payable to the claimant under Sec. 166 of the Act, that too after allowing the petitioner to adduce evidence and thereby, to hold that whatever is awarded under Section 163A is to be treated as final award, is nothing, but a material irregularity and illegality, which resulted into injustice to the petitioners and therefore, the impugned award needs to be quashed and set-aside by appropriate directions.
28. Since this is not the First Appeal, but a petition under Articles 226 and/or 227 of the Constitution of India, I am of the opinion that when evidence is already available on record to determine just and reasonable compensation that may be awarded to the claimants, instead of remanding the matter back to the Tribunal for deciding the quantum of compensation, it would be appropriate to determine that what would be just and reasonable compensation that can be awarded to the petitioners - claimants so as to put an end to such litigation, wherein the date of accident is 111.8.1998 i.e. before two decades. Therefore, when R&P with all the evidence is available at the disposal of this court, it would be appropriate to verify that whether amount of compensation Page 34 of 39 C/SCA/3313/2016 CAV JUDGMENT awarded as per the order below Exh.5 on 15.4.2000 is just and reasonable or not.
29. If we verify the order of interim compensation, it becomes clear that, practically, the Tribunal has not awarded just and reasonable compensate on different conventional heads under General Law, but awarded only scheduled amount on all such conventional heads when only Rs.2,000/- is awarded towards funeral expenses and Rs.5,000/- towards loss of consortium, Rs.2,500/- towards loss of estate. Now, it is undisputed proposition of law that though on all such conventional heads, for decades together, the courts were awarding good amount of compensation upto Rs.3.5 Lacs, after the decision in the case of National Insurance Company Limited v Pranay Sethi reported in JT 2017 (10) SC 450 by full Bench of Hon'ble Supreme Court of India, the claimants are certainly entitled to atleast Rs.70,000/- on such conventional heads though at the relevant time, courts were awarding more than Rs.70,000/- in aggregate for all such different conventional heads. Therefore, in any case, claimants are entitled to almost Rs.70,000/- as additional compensation.
30. So far as compensation under the head of loss of dependency is concerned, unfortunately, Tribunal has though recorded the evidence, failed to appreciate the same so as to determine that what could be the just and reasonable compensation on such head. Page 35 of 39 C/SCA/3313/2016 CAV JUDGMENT However, it is undisputed fact that for awarding interim compensation as per order below Exh.5, the Tribunal has already considered Rs.3,560/- as monthly income of the deceased and thereby, Rs.42,720/- as yearly income and applied 8 as suitable multiplier, since deceased was aged between 55 to 60 years and deducted 1/3rd amount towards his personal expenses. Thereby, Tribunal has failed to consider that the income of the deceased is exceeding Rs.40,000/- p.a. and therefore, as discussed in some of the decisions of different courts, claimants, who are claiming the yearly income of the victim below Rs.40,000/- only, are entitled to interim compensation, claimants are entitled to compensation as if yearly income of the victim was Rs.40,000/- only. There is some error in order dated 15.4.2000. However, such award is already confirmed by this court in First Appeal No.3214 of 2000 and therefore, there should not be any comment on such award, but the fact remains that now, when it is held that claimants are entitled to just and reasonable compensation on different heads under General Law and thereby, if we peruse the deposition of the petitioner - widow Exh.42, it is categorically stated on oath by her that monthly income of the deceased was Rs.4,500/-, we can certainly take Rs.4,000/- as reasonable earning capacity of the victim. Tribunal has failed to consider the prospective income of the deceased, considering the age of the deceased, even if 25% is taken as prospective income, earning capacity of the deceased would be Rs.5,000/-. Thereby, claimants are entitled to Rs.3,20,000/- as Page 36 of 39 C/SCA/3313/2016 CAV JUDGMENT compensation under the head of loss of dependency applying 8 as suitable multiplier and deducting 1/3rd towards personal expenses. Therefore, claimants are entitled to total amount of Rs.3,90,000/- as just and reasonable compensation out of which Tribunal has awarded Rs.2,37,352/-. Thereby, claimants are entitled to difference of such amount being Rs.1,52,648/- with 9% interest from the date of application.
31. Reference of following judgments is also relevant; (1) Reliance General Insurance Co. Ltd. vs. Shashi Sharma & Ors. reported in 2016 (9) SCC 627 (2) Oriental Insurance Company Ltd. vs. Chintharbhai Sibabhai reported in 2004 (3) GLR 2018 (3) National Insurance Company Ltd. vs. S. L. Sharma & Ors.
reported in 2009 (1) ACC 282 (4) Narsiji Nagaji Majirana vs. Manilal Amturam Bishnoi rported in 2004 (1) FLR 875 31.1 Wherein different Courts have held that order under Section 163A is practically awrding interim amount of compensation and that in fact there are two options open to the claimants under the act i.e. (I) under Section 166 and (ii) under Section 14 or under Section 163A of the Act. Thereby claimant can file appropriate application under Section 166 for full compensation which can be awarded based upon the evidence Page 37 of 39 C/SCA/3313/2016 CAV JUDGMENT adduced before the tribunal as well as either under Section 140 or under Section 166 of the Act, wherein the tribunal can award interim amount of compensation either as a fix amount of Rs.50,000/- or based upon the structural formula as per second schedule of the Act, even without recording evidence. Such position is required because for the victims whose income is fixed as salaried person but whose yearly income is less then Rs.40,000/- and thereby their families certainly in need of compensation, at the earliest, tribunal can award compensation under structural formula without waiting for evidence to be recorded, more particularly when prima facie evidence regarding age and income is possible for some of the victims when they are salaried and having specific evidence regarding their age and income.
31.2 The reference of full bench judgment in case of Reliance General Insurance Co. Ltd. vs. Shashi Sharma & Ors. reported in 2016 (9) SCC 627 is material, wherein the Honourable Apex Court has held that benefit received under any other statute or rules cannot be excluded while awarding compensation under Section 166 of the Act.
32. Therefore, the petition is allowed, whereby impugned order dated 19.11.2015 is modified so as to confirm that claimants are entitled to in all Rs.3,90,000/- as compensation with 9% interest from the date of application till its realisation. However, so far as Page 38 of 39 C/SCA/3313/2016 CAV JUDGMENT interest accrued at the rate of 12% as awarded by order dated 15.4.2000 below Exh.5 is not disturbed in any manner. Thereby, if opponents have already paid such interim compensation with 12% interest, then, now, they are liable to pay the difference of compensation being Rs.1,52,648/- with 9% interest from the date of application. The award is to be modified accordingly. The petition is allowed to the aforesaid extent. Record and Proceedings be sent back to the concerned tribunal forthwith. Direct service is permitted.
(S.G. SHAH, J) DRASHTI K. SHUKLA Page 39 of 39