Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Sihnu Ram & Ors on 21 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO(MVA) No.474 of 2010 Reserved on:13.7.2016 Date of decision: 21 .7.2016.
Oriental Insurance Company Ltd ...Appellant.
of
Versus
Sihnu Ram & ors ...Respondents
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Appellant: Mr.Ashwani K. Sharma, Senior Advocate with Mr. Nishant Sharma, Advocate.
For the Respondents: Mr. Varun Rana, Advocate for respondent No.1 and 2.
Mr.S.D.Sharma, Advocate for respondents No.3 and 5.
Tarlok Singh Chauhan J:
This appeal by the Insurance Company is directed against the award passed by learned Motor Accident Claims Tribunal-cum Presiding Officer, Fast Track Court, Mandi, District Mandi, whereby in a petition under Section 163-A, it awarded a sum of `4,82,000/- (Rs. Four lacs Eighty two thousand only) with interest at the rate of 9% p.a. from the date of filing of the petition till the deposit of the same in favour of petitioners (hereinafter referred to as 'respondents).
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 2
2. The claim petition was initially filed under .
Section 166 of the Motor Vehicles Act ( for short the 'Act'), but thereafter an application under order 23 Rule 1 CPC was filed before the learned Tribunal below and the claimants vide order dated 5.10.2007 were permitted to of abandon the claim by restricting it to `40,000/- per annum. rt
3. Two important issues arise for consideration;
(i) whether the claim petition under Section 163-A of the Motor Vehicle Act ( for short the 'Act') was maintainable since according the claimants themselves, income of the deceased was `6,000/-
per month, i.e. `72,000/-per annum which is in excess of the upper limit of income i.e. `40,000/- provided under second schedule of the Act and
(ii) whether the claimants, after pleading an income more than what is prescribed in the second schedule, can abandon a part of their claim and restrict the same to `40,000/-per annum or less so as to bring it inconformity with the schedule.
4. Having gone through the various judgments of this court, there appears to be conflict and diversion of ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 3 opinion on both the issues. However, both the issues are .
being dealt with separately:
ISSUE NO.1
5. A learned Single Judge of this court in New of India Assurance Company Ltd Vs. Chanchal Devi & ors, Latest HLJ 2014 (HP) 250, while dealing with the rt objection regarding claim under Section 163-A of the Act being not maintainable on the ground that the claimants had given the income of their bread earner driver (deceased) as `6000/- per month and thus not falling in the income group of `40000/- per annum as per second schedule, held that technicalities could not come in the way of the Tribunal to grant compensation to the victims and they cannot be left high and dry. It is apt to re-produce the following observations as contained in paras 8 to 12, which read thus:
"8.The learned Counsel for the appellant argued that the claim petition under Section 163-A of the Motor Vehicles Act, 1988, in short "the Act" was not maintainable on the grounds that the claimants have given the income of their bread earner-driver (deceased) as `6,000/- per month, thus is not falling in the group of `14,000/-, as per the second Schedule attached to the Act. He also argued that the amount awarded is at higher side and the appellant is fully justified to question the same for the reason that he, before the Tribunal, had obtained permission/leave in terms of Section 170 of the Act. Both ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 4 the arguments are not tenable for the reasons, which I will .
discuss herein.
9. Appellant-insurer has not questioned the impugned award on the other grounds. It is beaten law of the land that hyper-technicalities, mystic maybes, niceties of law and other technical grounds cannot come in the way of of the claimants to seek compensation and cannot be an impediment to the Tribunals or Courts to grant compensation to the victims, who are virtually left on rt streets high and dry.
10. It is the duty of the Tribunals and other institutions to keep in mind what is the object, aim and scope of granting compensation in terms of the provisions of the Act and what is the aim of legislation. It should not be forgotten that it is a social legislation.
11. The Apex Court in a recent judgment in the case titled as Puttamma and others versus K.L. Narayana Reddy and another, reported in 2014 ACJ 526, held that the second Schedule contained in the Act has become redundant, unworkable and irrational by efflux of time and has recommended, rather, directed legislators for its amendment. It is apt to reproduce paras 53 and 56 of the judgment here in below:
"53. In view of finding recorded above, we hold that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.
54. ..........................
55. ..........................
56. The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163-A (3), but ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 5 failed to do so for 19 years in spite of .
repeated observations of this court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper of amendments to the Second Schedule Table keeping in view the present cost of rt living, subject to amendment of Second Schedule as proposed or may be made by Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub section (3) of section 163-A of the Act, 1988 or amendment is made by Parliament, we hold and direct that the children up to the age of 5 years shall be entitled for fixed compensation of Rs.
1,00,000 (rupees one lakh) and persons more than 5 years of age shall be entitled for a fixed compensation of Rs. 1,50,000 (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher.
Such amount is to be paid if any application is filed under Section 163-A of the Act, 1988."
Thus, in view of the Apex Court judgment, the learned Counsel for the appellant fails.
12. Even otherwise, the arguments of the learned Counsel of the appellant are misconceived for the reason that the deceased-driver, Nirmaljeet Singh, was driving the offending vehicle-truck, met with an accident and lost his life and thereby, the claimants have ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 6 become hapless and helpless. The accident was an .
outcome of the use of motor vehicle and during the course of employment. Thus, the petition was maintainable."
6. The view expressed in Chancal Devi's case (supra) appears to be in conflict with the consistent view of of this court on the subject. Reference in this regard can conveniently be made to the judgment of the learned rt Single Judges of this court in Sudhir Mahajan Vs. United India Insurance Company Ltd & anr, 2007 (2) Shim.LC 305; Shanti Devi & anr Vs. National Insurance Company & ors, 2008 (2) Shim.LC 125; Satya Devi Vs. Bakshi Ram & ors, 2009 (2) Shim.LC 381 and New India Assurance Company Vs. Smt. Veena Devi & ors, Latest HLJ 2009 (HP) 770.
7. In addition to aforesaid, the ratio of the judgment is otherwise in direct conflict with the judgment rendered by a learned Division of this Court in Sukhwant Kaur & ors Vs. Sher Singh & anr, 2008(3) Shim. LC 93, where the ratio of three Judges bench decision of the Hon'ble Supreme Court in Deepal Girishbhai Soni Vs.United India Insurance Co. Ltd., 2004 ACJ, 934 was relied upon to conclude as under:
"3.In our considered view Section 163-A of the Act is not at all applicable to the facts of this case. In fact the petition under Section 163-A of the Act was not ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 7 maintainable in view of the fact that the income of the .
deceased was stated to be more than Rs. 40,000/- per annum. The Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd., Baroda, (2004) 5, SCC 385 has clearly laid down that where the income of the deceased-victim is more than Rs. 40,000/- per annum, the claimants are not of entitled to file a petition under Section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:-
rt "51. The scheme envisaged under Section 163-
A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section
140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs.40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society.
52-66. x x x x x x x x x x x x x x x x x
67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/-
::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 8can take the benefit thereof. All other claims are .
required to be determined in terms of Chapter XII of the Act."
ISSUE NO.2
8. A learned Single Judge of this Court in FAO of No.394 of 2007, titled as Oriental Insurance Company Ltd Vs. Meena & ors, decided on 11.7.2014, while dealing rt with the claim petition, filed under Section 166 of the Act, where the impugned was passed under Section 163 of the Act, held the aim and object of the provisions of the Motor Vehicles Act was to provide compensation to the claimants of vehicular accidents as early as possible so that they do not suffer unnecessarily and become prey to social evils.
The relevant observations read thus:
"5. While going through the averments made in the Claim Petition, it is clear that it was a case under Section 166 of the Motor Vehicles Act and I deem it proper to treat the Claim Petition under Section 166 of the Act.
6. At this stage, the learned counsel for the insurer has submitted that the Tribunal had no power to adjudicate the petition under Section 163-A of the Act and also to convert the same to Section 166 of the Act. This argument of the learned counsel is baseless for the reason that the Motor Vehicles Act has gone a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added, which are reproduced below:::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 9
"158(6) As soon as any information regarding .
any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a High Court of H.P. copy of the same within thirty days from the date of recording of of information or, as the case may be, on completion of such report to the Claims Tribunal rt having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer."
"166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub- section (6) of Section 158 as an application for compensation under this Act."
7. Thus, from a bare reading of the above provisions of law, it is clear that a Claims Tribunal can treat any report of accident forwarded to it under Section 158 (6) of the Act as an application for compensation. Therefore, it does not lie in the mouth of the insurer to plead that the impugned award is bad in the eyes of law for the reason that initially, the Claim Petition was filed under Section 166 of the Act and subsequently, the impugned award was passed under Section 163-A of the Act. The aim and object of the provisions enumerated above is to provide compensation to the claimants of vehicular accidents as early as possible so that they do not suffer unnecessarily and become prey to social evils. It is also well settled law that the claim petitions, arising out of vehicular accidents, should not be thrown out and the poor claimants should not be shown the door on hyper-technicalities and a duty has been cast ourt of H.P upon the Tribunals/Courts to see ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 10 that justice is done. Similar view has been expressed .
by the Apex Court in its various pronouncements. Thus, the argument canvassed by the learned counsel for the insurer is devoid of any merit. Having said so, the order passed by the Tribunal, for treating the Claim Petition under Section 163-A of the Act, was unknown to law."
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9. Earlier to this judgment, a learned Single Judge of this Court in New India Assurance Company Vs. Smt rt Veena Devi & ors, Latest HLJ 2009(HP) 770, held that the maximum income for maintainability of the petition under Section 163- A is `40,000/- per annum and the same cannot be restricted or given up. It is apt to reproduce the relevant observations, which read thus:
"6. I have heard Mr. B.M.Chauhan, Advocate, learned counsel for the appellant and Mr. Jagdish Thakur, Advocate, on behalf of respondents No.1 to 4 and have also gone through the record. It has been submitted on behalf of the appellant that the petition under Section 163- A of the Act filed by respondents No. 1 to 4 was not maintainable inasmuch as, in the petition itself, the respondents No.1 to 4 have pleaded that deceased Ashok Kumar was drawing Rs.5945/- salary per month. In other words, the annual income of deceased from salary was Rs.71,340/-.The second schedule of the Act provides maximum income of Rs.40,000/- per annum for laying claim under Section 163-A of the Act and, therefore, petition filed by respondents No. 1 to 4 under Section 163- A was not maintainable. The learned counsel for the respondents No. 1 to 4 has submitted that no doubt to begin with income of deceased was shown Rs.5945/- per month on account of salary but at the time of hearing of the petition the respondents No.1 to 4 restricted their claim on the basis of income of deceased Ashok Kumar at ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 11 Rs.40,000/- per annum. He has submitted that the learned .
Tribunal has rightly considered the petition under Section 163-A in view of restricted claim put forth by the respondents No.1 to 4 and no fault can be found with the ultimate award passed by the learned Tribunal.
7. The Apex Court in Deepal Girishbhai Soni Vs.United of India Insurance Co. Ltd., 2004 ACJ, 934, has held as follows:-
rt "We, therefore, are of the opinion that Kodala's case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of section 163-A, the annual income of Rs.40,000/- shall be treated as a cap.
In our opinion, the proceeding under section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/- can take the benefit thereof. All the other claims are required to be determined in terms of Chapter XII of the Act."
8. In United India Insurance Co. Ltd. Vs.Kavita Chhabra and others, 2006 ACJ 1484, it has been held that application under Section 163-A in respect of a person whose annual income is more than Rs.40,000/- is not maintainable. In Sukhwant Kaur and others Vs. Sher Singh and another, Latest HLJ, 2008 (HP) 850, a claim petition was filed under Sections 140, 163-A and 166 of the Act. The claim petition was in fact treated to be a petition under Sections 140 and 166 and not under Section 163-A of the Act. The Division Bench in para 4 of the report has observed that petition under Section 163-A of the Act was not maintainable. In Oriental Insurance Co. Ltd. Vs.Bimla Devi, 2008 ACJ 1181, again it has been held that claim application claiming compensation for death of the deceased whose annual income was more than Rs.40,000/- is not maintainable under Section 163-A. In ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 12 Bangalore Metro Transport Corporation Vs. .
Lakshmamma and others, 2008 ACJ 1532, the gross salary of the deceased was found Rs.4179/-, it was held that Tribunal has no power to restrict the income of the claimant or deceased as the case may be to Rs.40,000/- to bring the claim within the purview of section 163-A of the Motor Vehicles Act.
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9. The learned counsel appearing on behalf of the respondents No. 1 to 4 has relied GuruannaVadi and rt another Vs.General Manager, Karnataka State Road Transport Corporation and another, 2001 ACJ 1528, in support of his contention that a claimant during the pendency of the proceedings at the original or appellate stage can amend his claim petition under Section 166 to a petition under Section 163-A of the Act provided he satisfies other conditions such as the income factor etc. In Brijnandan Sharan Bansal and others Vs. Pepsu Road Transport Corporation and another, 2007 ACJ 692, the income of the deceased was proved Rs. 78,000/- but in view of the second schedule of the Act, the maximum limit of Rs.40,000/- of income was fixed and compensation was calculated by taking the income of the deceased at Rs.40,000/- per annum. The learned counsel for the respondents No. 1 to 4 has also cited Oriental Insurance Co. Ltd. Vs. Saroj and Others, 2008 ACJ, 594, wherein a claim of Rs.20,00,000/- was laid before the learned Tribunal under Section 163-A of the Act, but the learned Tribunal awarded Rs.2,66,000/- after assessing the income of the deceased at Rs.24,000/- per annum. In appeal, the High Court rejected the contention of the insurer that the petition was not maintainable under Section 163-A.
10. In Deepal Girishbhai Soni(supra), the Supreme Court has clearly laid down the law that the proceeding under Section 163-A , being a social security provision, provides a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. The decision in ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 13 Kodala case was not accepted which provides that if a .
person invokes provisions of Section 163-A, the annual income of Rs.40,000/- shall be treated as a cap. In 2007 ACJ 692, Deepal Girishbhai Soni's case was not noticed. In 2008 ACJ, 594, on facts it was found that deceased was earning Rs. 24,000/- per annum, therefore, both these judgments are not of any help to respondents of No. 1 to 4. In 2001 ACJ 1528, it was held that by way of amendment a claim petition under Section 166 can be converted into a petition under Section 163-A provided rt other conditions such as income factor etc. are satisfied.
11. In the present case, even if for limited purpose, it is assumed that the petition filed by respondents No. 1 to4 was under Section 166 of the Act and such petition could be converted into petition under Section 163-A after satisfying the requirements of Section 163-A, but no amendment application for converting the petition as per requirement of Section 163-A was filed. There is no statement on record of learned counsel for the respondents in the Tribunal below restricting the claim of respondents No. 1 to 4 on the basis of income of deceased Ashok Kumar at Rs.40,000/- per annum.
12. Ex.P-2 is the salary certificate of deceased Ashok Kumar showing that he was drawing Rs.5945/- salary per month. In affidavit Ex.PW-1/A, Veena Devi has stated that her husband was drawing monthly salary Rs. 5945/-. In claim petition, the salary of deceased Ashok Kumar has been shown at Rs.5945/- per month. Thus, salary of deceased Ashok Kumar was proved to be Rs.5945/-per month or Rs. 71,340/- per annum. Therefore, in view of law laid down by the Supreme Court in Deepal Girishbhai Soni(supra), that under Section 163-A, only those whose annual income is Rs.40,000/- per annum can take the benefit thereof, the petition filed by the respondents No. 1 to 4 under Section 163-A of the Act was not maintainable. The learned Tribunal has erred in allowing the claim of ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP 14 respondents No. 1 to 4 by taking the annual income of .
deceased Rs. 40,000/- when it is proved that income of deceased was Rs.5945/- per month or Rs.71,340/- per annum, therefore, impugned award is not sustainable."
10. From the aforesaid discussion, it is evident that of the view of this court on both these issues is not consistent.
That apart, conflicting judgments have even been rendered rt by various Hon'ble Courts on these issues.
11. The issues raised are of considerable public importance and are likely to come up repeatedly before this court as also before the Tribunals and, therefore, require an authoritative pronouncement by a Larger bench of this Court.
12. In this view of the matter, Registry is directed to place the matter before Hon'ble the Chief Justice for constituting a Larger Bench for considering both the issues, as referred to above.
(Tarlok Singh Chauhan), Judge.
July 21, 2016 (sl) ::: Downloaded on - 15/04/2017 20:51:32 :::HCHP