Punjab-Haryana High Court
Balbir Singh And Another vs Krishan Lal And Another on 18 February, 2014
Author: Anita Chaudhry
Bench: Anita Chaudhry
FAO No.5564 of 2009 (O&M) with -1-
FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.5564 of 2009 (O&M)
Date of Decision: February 18, 2014.
Balbir Singh and another ..Appellant(s)
Versus
Krishan Lal and another ...Respondent(s)
FAO No.5565 of 2009 and
Cross Objection No.43-CII of 2010 (O&M)
Date of Decision: February 18, 2014.
Rekha and others ...Appellant(s)
Versus
Krishan Lal and others ...Respondents/Cross Objectors
CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? No
Present: Mr. Parminder Singh, Advocate
for the appellant(s).
Mr. R.N. Singhal, Advocate
for respondent No.2/cross objector.
*****
ANITA CHAUDHRY, J.
1. These are two appeals preferred by the claimants seeking enhancement of compensation against the award dated 07.04.2009 passed by the Motor Accident Claims Tribunal, Karnal, relating to an accident which occurred on 04.09.2004 leading to the death of both the motor cycle riders.
Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -2-FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M)
2. Cross objections has also been filed by the respondent No.2 Insurance Company in FAO No.5565 of 2009.
3. A brief reference to the crucial facts would be apposite. Two claim petitions were filed under Section 163-A of the Motor Vehicle Act. There was an accident which involved the collision of a truck bearing registration No.HRD-
4615 and a motorcycle bearing registration No.HR-05M-9610.
On 04.09.2004 at about 8:00 A.M., Harpal Singh @ Pali along with his brother Sube Singh were proceeding on a motorcycle and had reached near the Government College, Karnal, when the truck came from the behind and caused the accident and fled from the spot. The claimants specifically pleaded that the accident took place on account of negligence of the truck driver and regarding it a FIR case bearing No.310 dated 04.09.2004 under Sections 279/304-A IPC in Police Station Civil Lines Karnal had been lodged on the same day.
It would be pertinent to mention here itself that the claimants had also impleaded the owner and driver of the truck who controverted the allegations.
4. The Motor Accident Claims Tribunal framed issue No.1 as under:-
"Whether the accident took place due to rash and negligent driving of truck No.HRD-4615 by respondent no.3?OPP"
5. Both the sides led evidence and at the stage of hearing arguments, it came to the notice of the Tribunal that Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -3- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) the petition had been filed under Section 163-A and not under Section 166/140 of the Motor Vehicles Act and the issue had inadvertently been framed and it should have been framed in accordance with Section 163-A of the Motor Vehicles Act. The counsel who was representing respondent nos.1 & 2 made a statement raising no objection to the re-casting of the issue.
The issue was re-cast. No further evidence was led and on the statements made by the counsel for the parties, names of respondent nos.3 to 5 were deleted from the array of parties.
Both the claims were allowed.
6. Two appeals were preferred by the claimants seeking enhancement. Cross objection had been filed by the respondent no.2-insurance company in FAO No.5565 of 2009 on the plea that initially the driver and owner of the truck were arrayed as parties but subsequently their names were deleted at the behest of the claimants and the deceased Sube Singh was not a third party qua the insurance company of the motorcycle in view of the decision rendered by Hon'ble Apex Court in Ningamma Vs. United India Insurance Company, 2009 ACJ 2020 and no liability could be cast upon them.
7. I have heard the submissions made on behalf of both the sides and have considered the record.
8. It was contended on behalf of the appellants that there was a comprehensive insurance and claim could be lodged and both the claimants were entitled to the Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -4- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) compensation. It was urged that they were not challenging the income part but the Tribunal had not properly assessed the compensation and it had failed to award appropriate compensation for funeral expenses and transportation. It was urged that in the case of Sube Singh, 1/3rd deduction had been made whereas in view of the number of family members, the deduction should have been 1/4th and they were entitled to enhanced amount towards loss of estate, consortium and funeral expenses. It was further contended that in the case of comprehensive insurance, the claim can be lodged against one or both the owners and the option should be protected and where there is comprehensive insurance and it would cover the risk even of a pillion rider and the cross-
objection should be dismissed. Reliance was placed upon United India Insurance Co. Ltd. Vs. Ratheesh 2012(2) AICJ 368, Sombathina Ramu Vs. T. Srinivasulu and another 2009(3) AICJ 531, Munshi Ram Vs. United India Insurance Company Ltd. and another 2012(1) PLR 189 and Kamala Mangalal Vayani and others Vs. M/s United India Insurance Co. Ltd. and others 2011 ACC 340.
9. Per contra, the submission made on behalf of the insurance company/cross objector was that as per the plea raised by both the claimants, the accident had occurred on account of fault of the truck driver and he alone was to pay the compensation, if it was to be paid but in terms of Ningamma's case (supra), the insurance company would not Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -5- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) be liable. It was urged that the pleadings itself are sufficient and the witnesses have spoken about the negligence of the truck driver who was later on given up and in view of the decision of Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Sinitha and others (2012)2 SCC 356, both the claim should fail and the award passed by the Tribunal should be set aside.
10. A perusal of the claim petition shows that the accident has been described in para No.24 of the claim petition as under:-
"That on 04.09.2004 at about 8:00 A.M., deceased Harpal Singh @ Pali alongwith his brother Sube Singh started their journey from Model Town Karnal, on motorcycle bearing registration No.HR-05M-9610, which was being driven by Sube Singh on its due left side that too after observing the traffic rules, they were to reach at Karan Cable situated in Sector 6, Urban Estate Karnal. When they reached near Govt. College Karnal, a truck bearing registration No.HRD- 4615 came from behind and after causing the accident run over the Harpal Singh @ Pali and his brother Sube Singh. Truck was being driven by its driver without observing the traffic rules and in a rash and negligent manner. Due to the impact Harpal @ Pali fell down on the road and suffered head injury and succumbed to his injuries at the spot. Accident took place due to rash and negligent driving of the driver of the truck bearing registration no.HRD-4615 and he was the only author of this accident. However, the death of the Harpal Singh is caused due to the use of the motorcycle bearing registration no.HR-05M-9610."Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -6-
FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M)
11. In both the claim petitions, similar plea has been taken. The claimants had impleaded the driver and owner of the truck bearing registration no.HRD-4615 who had appeared and had filed their written statement denying the accident.
12. The Tribunal had framed an issue relating to negligence and the fact escaped its notice that claim had been filed under Section 163-A of the Motor Vehicles Act. Though, later on the issue was amended. Balbir Singh and Rekha had tendered their affidavits and both of them had specifically stated that the accident had occurred on account of negligence and rash driving of the truck driver. The claimants had also summoned the Ahlmad to prove that the truck driver was facing trial. Rajiv PW-4 had lodged the FIR and he had also spoken about the manner of the accident. In view of these pleadings and the evidence which had been led by the claimants, the question that would arise is whether the insurance company of the motorcycle would be liable to pay any compensation when plurality of vehicles are involved in the accident and whether the claimants could choose to make one insurance company liable for payment of compensation.
The appellants had relied upon a Division Bench judgment rendered by the Kerala High Court in Ratheesh's case (supra) and which had drawn a distinction between Section 140 and Section 163-A of the Motor Vehicles Act.
Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -7-FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) The distinction between Section 140 and Section 163-A of the Motor Vehicles Act had been dealt with in Ratheesh's case (supra) and it read as follows:-
"Provisions of Section 140 of the Motor Vehicles Act make it clear that payment under Section 140 is only Ad hoc and interim. The claimants are entitled, even after claiming the amount under Section 140 of the Motor Vehicles Act, to claim the entire amount of compensation which would otherwise be payable by resort to Section 166 of the M.V. Act. The only stipulation is that the amount paid under Section 140 must be adjusted towards the amount that would be payable under Section 166 of the Motor Vehicles Act."
13. The Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Sinitha and others (2012)2 SCC 356 had drawn a distinction between the award of compensation on the basis of a liability without fault as under Section 140 of the Act and payment of compensation under Section 163 of the Act. Para Nos.13 to 16 of the judgment are dealt with the comparison and that are read as under:-
13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163A of the Act. For this, Section 163A of the Act is being extracted hereunder:
"Section 163A. Special provisions as to payment of compensation on structured formula basis -
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -8- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) 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 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. A perusal of Section 163(A) reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in 27 Section 140 of the Act, so also under Section 163A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of sub-section (4) of Section 140 in Section 163A of the Act. Whereas, under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or insurance company) is precluded from defeating a claim raised under Section 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the interpretation of Section 163A of Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -9- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) the Act. In our considered view the legislature designedly included the negative clause through sub- section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163A of the Act. The legislature must have refrained from providing such a negative clause in Section 163A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140, and the absence of a similar provision in Section 163A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163A of the Act. The object for incorporating sub-section (2) in Section 163A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-section (4) of Section 140 of the Act from Section 163A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163A of the Act is founded on the "fault" liability principle (Emphasis is mine).
Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -10-FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M)
14. There is also another reason, which supports the aforesaid conclusion. Section 140 of the Act falls in Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 is titled as "Liability Without Fault in Certain Cases". The title of the chapter in which Section 140 falls, leaves no room for any doubt, that the provisions under the chapter have a reference to liability "... without fault ...", i.e., are founded under the "no-fault" liability principle. It would, however, be pertinent to mention, that Section 163A of the Act, does not find place in Chapter X of the Act. Section 163A falls in Chapter XI which has the title "Insurance of Motor Vehicles Against Third Party Risks". The Motor Vehicles Act, 1988 came into force with effect from 1.7.1989 (i.e., the date on which it was published in the Gazette of India Extraordinary Part II). Section 140 of the Act was included in the original enactment under chapter X. As against the aforesaid, Section 163A of the Act was inserted therein with effect from 14.11.1994 by way of an amendment. Had it been the intention of the legislature to provide for another provision (besides Section 140 of the Act), under the "no-fault" liability principle, it would have rationally added the same under Chapter X of the Act. Only because it was not meant to fall within the ambit of the title of Chapter X of the Act "Liability Without Fault in Certain Cases", it was purposefully and designedly not included thereunder.
15. The heading of Section 163A also needs a special mention. It reads, "Special Provisions as to Payment of Compensation on Structured Formula Basis". It is abundantly clear that Section 163A, introduced a different scheme for expeditious determination of accident claims. Expeditious determination would have reference to a provision wherein litigation was hitherto before (before the insertion of Section 163A of the Act) being long drawn. The only such situation (before the insertion of Section 163A of the Act) wherein the litigation was long drawn was under
Chapter XII of the Act. Since the provisions under Chapter XII are structured under the "fault" liability principle, its Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -11- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) alternative would also inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre-structured formula to evaluate compensation. It provided for some short-cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. All in all, one cannot lose sight of the fact, that claims made under Section 163A can result in substantial compensation. When taken together the liability may be huge. It is difficult to accept, that the legislature would fasten such a prodigious liability under the "no-fault"
liability principle, without reference to the "fault" grounds. When compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a "fault" ("wrongful act", "neglect", or "defect") under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A of the Act is founded under the "fault"
liability principle.
16. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -12- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect" or "default". From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner (Emphasis is mine). "
14. In the above judgment, the Hon'ble Apex Court had drawn a distinction and had held that a claim under Section 163-A did not fall within the ambit of the title of chapter X of the Motor Vehicles Act and it was purposefully and designedly not included there under and Section 163-A of the Act introduces different scheme and it catered to shortening the length of litigation, by introducing a scheme regulated by pre-structure formula to evaluate compensation.
It laid emphasis on the fact that the legislature would not Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -13- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) fasten such a prodigious liability under the "no fault" liability principle without reference to the "fault" grounds. It was observed that when the compensation is high it is legitimate that the insurance company is not fastened with the liability when the offending vehicle is at fault.
15. In Sinitha's case (supra) it was observed that the claimants have neither to plead nor lead evidence to establish negligence and the wrongful act and default can be established by the owner or the insurance company to defeat a claim under Section 163-A of the Act.
16. In the background of the law laid down by the Apex Court in Sinitha's case (supra) when the facts of the present case are examined, it is noticed that the claimants themselves had led their evidence and had introduced the copy of FIR as well as copy of the challan to establish the accident. They cannot be heard to contend only that part of the document which supports them, should be considered while the remaining should be ignored. The documents have to be read as a whole. Keeping this principle in mind, considering the pleadings, the statement made by the eyewitnesses, it is clearly proved that the accident in question was on account of wrongful act of the truck driver. The claimants themselves have established the negligence of the driver who was given up at the end of the proceedings. The question now arises whether the claim petition could have Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document FAO No.5564 of 2009 (O&M) with -14- FAO No.5565 of 2009 and XOBJC-43-CII of 2010 (O&M) been filed against the owner of the motorcycle. In my view, the claim against the owner and insurer of the motorcycle would not lie. Both the claim petitions were not maintainable against the owner and insurer of the motorcycle. There is clear evidence that the accident was based on 'fault' grounds that is negligence and fault of a party. It is held that both the claim petitions were not maintainable.
17. In view of the above, both the appeals are dismissed and the award dated 07.04.2009 passed by the Tribunal is set aside. The cross-objection filed by the respondent-insurance company is accepted. Lower court record be sent back.
(ANITA CHAUDHRY) JUDGE February 18, 2014 sunil Sunil 2014.02.24 11:18 I attest to the accuracy and integrity of this document