Madhya Pradesh High Court
Jagdish Singh Tomar vs Vijay Singh Tomar on 31 January, 2019
1
HIGH COURT OF MADHYA PRADESH
MA No.662/2006
(Jagdish Singh Tomar v. Vijay Singh Tomar & Another)
Gwalior, Dated : 31.01.2019
Shri Arun Sharma, learned counsel for the appellant.
Shri Shriniwas Gajendragadkar, learned counsel for
respondent no. 2-Insurance Company.
This miscellaneous appeal has been filed by the claimant under Section 173 of the Motor Vehicles Act, 1988 being aggrieved by award dated 22.02.2006 passed by the motor Accident Claims Tribunal, Gwalior in Claim Case No.40/2005, whereby the Tribunal has rejected the claim on account of the fact that appellant Jagdish Singh Tomar has filed a claim under Section 163A of the Motor Vehicles Act (hereinafter for short referred to as "Act") and since no permanent disability has occurred in the body of claimant Jagdish Singh Tomar, therefore, he is not entitled to any compensation under Section 163A of the Act.
Learned counsel for the appellant submits that the Second Schedule appended to the Motor Vehicles Act under Section 163A provides for a Schedule for compensation for third party fatal accidents/injury cases claims on structured formula basis and has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni & Others v. United India Insurance Co. Ltd. As reported in 2004 ACJ 934, wherein it has been held that the award under Section 163A of the Act is not interim and the claimants are not entitled to pursue their claim under Section 166 of the Act and it is also held that the adequate compensation under structured formula has to be paid.
On the other hand, the learned counsel for the Insurance Company has placed reliance on the judgment of 2 HIGH COURT OF MADHYA PRADESH MA No.662/2006 (Jagdish Singh Tomar v. Vijay Singh Tomar & Another) Gwalior, Dated : 31.01.2019 the Kerala High in the case of National Insurance Company Ltd. v. Jabbar & another as reported in 2007 ACJ 1371, wherein it has been held that when there is neither certificate by a competent authority as to the permanent disablement nor a finding of the Tribunal that the claimant suffered from any permanent disablement, the Tribunal was not justified in awarding the compensation.
Similarly, reliance has been placed on the judgment of the Madhya Pradesh High Court at Indore Bench in the case of Prabhu Lal v. Babulal & another as reported in 2007 ACJ 2748, wherein again it has been held that when there is evidence that the driver suffered any injury resulting in permanent disablement, then the driver is not entitled to claim compensation under Section 163A of the Act. It will be profitable to extract paragraph 6 of the said judgment, which is as under :-
"6. Section 163A was inserted in the Act w.e.f. 14-11-1994. It provides special provisions for compensation on structured formula basis. A conjoint reading of provision of the Section 163A with other sections of Act reveals that it is open for a victim or legal representatives of a victim of an accident arising out of the use of motor vehicle to proceed for compensation based upon the principle of no fault liability. In other words, Section 163A provides for payment of compensation on structured formula in an accident resulting into death of permanent disablement without the proof of negligence. Section 163A of the Act starts with the language that gives an overriding effect to it over any other law for the time being in force. Moment a claimant comes forward with 3 HIGH COURT OF MADHYA PRADESH MA No.662/2006 (Jagdish Singh Tomar v. Vijay Singh Tomar & Another) Gwalior, Dated : 31.01.2019 a prayer under Section 163A then he can succeed if it could be shown that prima facie death or permanent disability complained of was the result of the accident arising out use of a motor vehicle. This is ratio of the decision of the Supreme Court in Rita Devi's case (supra). In that case an autorickshaw was hired by passengers for use as a public carrier and later on slain body of autorickshaw driver was discovered. Considering the viability of claim petition under Section 163A of the Act in the proximity of cause of such murder. Their Lordships after considering various authorities, held that a death (murder) of an autorickshaw driver during the course of employment was an accident and covered by the Section 163A of the Act for payment of compensation without proof of negligence on the part of deceased driver. There is no argument with the proposition of law laid down by Their Lordships in the aforesaid decision, however, with due respect, said proposition in the opinion of this Court, is inapplicable to the facts of the appeal in hand. Appellant chose Section 163A to claim compensation. There is not a shred of evidence that appellant suffered any injury resulting in permanent disablement or physical impairment. It is clear that appellant/claimant could not prove that he sustained any permanent disability on account of the alleged incident which took place on 30-
9-2003. Section 163A provides for compensation on no fault liability for death or permanent disability. In absence of the proof that appellant sustained any permanent disability in the alleged accident, appellant is not entitled to claim compensation. In view of the above discussion, I find no merit in this appeal so as to warrant interference with the impugned award. Consequently appeal being devoid of substance is hereby dismissed 4 HIGH COURT OF MADHYA PRADESH MA No.662/2006 (Jagdish Singh Tomar v. Vijay Singh Tomar & Another) Gwalior, Dated : 31.01.2019 summarily."
Thus, it is apparent from a plain reading of Section 163A (1) of the Act that it provides that it is a special provision as to payment of compensation on structured formula basis holding the owner of the motor vehicle or the authorized insurer liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor cycle. Thus, the pre-condition for awarding compensation as per the structured formula is subject to fulfillment of either of two conditions, i.e., death or permanent disablement due to accident. Since the Tribunal has recorded a finding that there is no permanent disablement and that finding is supported by the evidence of AW4 Dr. S.N. Tripathi, Medical Officer, Civil Hospital, Gwalior, who has admitted that 20% disability shown in Ex.P/52 is not permanent and is curable, in view of such facts, the award passed by the Claims Tribunal rejecting the claim petition under Section 163-A of Motor Vehicle Act, 1988 for want of death or permanent disability cannot be faulted with. In this regard, the judgment of the Bench of this Court in the case of Smt. Bharti Tripathi Vs. Smt. Munni Devi and another decided in M.A No. 1223/2005 on 25.01.2018 is also relevant.
Accordingly, the appeal fails and is hereby dismissed.
(Vivek Agarwal)
meh/ Judge
MEHFOOZ
AHMED
2019.02.02
10:57:20 +05'30'