Jammu & Kashmir High Court
Oriental Insurance Co. Ltd. vs Ghulam Mohd. on 26 July, 2002
Equivalent citations: 2004ACJ1811
JUDGMENT S.K. Gupta, J.
1. We have heard Mr. Baldev Singh, Advocate for the appellant as well as Mr. P.N. Raina, Advocate with Ms. Anshuya Sharma, Advocate for the respondents at length. These appeals by Letters Patent have been preferred by the insurance company against common judgment and order propounded by the learned single Judge in C.I.M.A. Nos. 66, 125 of 2001 and 106-A of 2002. By the aforesaid judgment the learned single Judge had dismissed appeals against a common award passed by the Presiding Officer, Motor Accidents Claims Tribunal, Ramban dated 29.9.1998.
2. The sole controversy raised before the learned single Judge was as to whether court can grant additional compensation to the victims in terms of Section 163A of Motor Vehicles Act (hereinafter referred to as 'the Act') when compensation in terms of Section 140 of the Act has already been granted. After going through the relevant provisions touching the matter in controversy and placing reliance on the judgment of the Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 ACJ 428 (SC), returned a finding which became the subject matter of challenge before us in these L.P.As., and is reproduced as under;
"Therefore, I find that the court is within its powers to grant a relief under Section 163A, in addition to what it can grant under Section 140 unless the case is covered by one of the exceptions. That being the answer to the question, I dismiss the appeals."
The facts of the case shorn of details may be noticed. An accident involving death of three persons on the spot and severe injuries to one had occurred due to rash and negligent driving of truck bearing registration No. HR 29-D 2077 carrying karyana goods on way to Srinagar as a result of which the vehicle had fallen into river Chenab. Claim petition came to be filed by the LRs. of the deceased claiming compensation under Sections 166 and 140 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Ramban. After framing of issues on the pleadings of the parties, evidence was adduced in support and rebuttal of respective contentions by the parties. It was during the course of the arguments, learned counsel appearing for the claimants pleaded before the Presiding Officer of the Tribunal that under Section 165 of the Act, the Tribunal has the power to adjudicate upon the claim for compensation in respect of death or bodily injury to persons arising out of the use of motor vehicles under Sections 140 and 163A. It was further contended that Section 163A being the special provision as to the payment of compensation on the structured formula basis, compensation has to be paid to the LRs. of the deceased notwithstanding anything contained in Motor Vehicles Act or any other law for the time being in force. The Tribunal acceded to the submission made by the claimants, determined the compensation on structured formula basis under Section 163A of the Act and awarded compensation in holding that the fixed amount of interim compensation granted under Section 140 of the Act and received by the petitioners shall be reduced from the amount of compensation payable under Section 163A of the Act.
3. Mr. Baldev Singh, learned advocate appearing for the appellant vehemently urged that the Tribunal ought to have been granted relief under Section 140 of the Act for no fault liability and has no power to proceed under Section 163A of the Act and allow further compensation on structured formula basis as per Second Schedule attached to the said provision. His further contention is that provision of Sections 140 and 163A of Motor Vehicles Act deal with one and the same liability on no fault basis and because of the specific bar created by Section 163B, it is legally inconceivable that the Tribunal can grant relief under both the provisions.
4. For appreciating the rival contentions, it would be necessary to look into the relevant provisions of Sections 140, 141 and 163A of Motor Vehicles Act and the language used in the provisions so as to understand its true import for determining the question involved and the scheme for payment of compensation under the Act. Sections 140 to 143 provide for liability of the owner of the vehicle in the case of death or permanent disablement of any person resulting from accident arising out of the use of motor vehicle or motor vehicles to pay compensation without any pleading or establishing that the death or the permanent disablement was due to any wrongful act, neglect or default of the owner of the vehicle. By way of earliest relief, victim is entitled to get fixed amount of compensation of Rs. 50,000 in case of death and Rs. 25,000 in case of permanent disablement. It is further provided that the claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. Sub-section (5) of Section 140 upon which much emphasis has been laid by learned advocate appearing for appellant insurance company, requires consideration which, inter alia, provides that the owner of the vehicle is also liable to pay compensation under any other law for the time being in force. The word 'also' indicates that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. Proviso to Sub-section (5) further clarifies that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of compensation payable under Sub-section (2) or under Section 163A. This is further crystallised in Section 141, which provides that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of fault liability. Further Section 141(1) also makes it abundantly clear that right to claim compensation under Section 140 is in addition to the right to claim compensation in respect thereof under any other provision of the Act or under any other law for the time being in force. From the provision of the aforesaid sections, one aspect is abundantly clear that right to claim compensation on the basis of no fault liability under Section 140 is in addition to the right to claim compensation on the principle of fault liability or right to claim compensation under any other law.
5. With a view to provide earliest relief to the victims of motor vehicles accident, the legislature has formulated a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational by inserting Section 163A in the Motor Vehicles Act, which Section provides adequate compensation to the victims of the road accident without going into long-drawn procedure. The Section begins with a non obstante clause thereby meaning that it will have full operation or that the provision embraced in the non obstante clause will not be an impediment for the operation of the enactment. Considering the purpose and the policy underlying the language used by the legislature in Section 163A, it is crystallised that compensation payable under the Section is limited to the compensation as indicated in the Second Schedule. The conferment of the right to receive compensation prescribed in the Second Schedule is notwithstanding anything contained elsewhere in the Act and is, therefore, absolute and final. Absence of any other provision relating to any other right to claim compensation after receiving compensation under Section 163A, serves as a distinction between Section 163A and Section 140 and helps to answer the question whether the compensation awarded under Section 163A is final or interim. Had it been the intention of the legislature to award the compensation under Section 163A as an interim measure, the legislature in its wisdom would have provided a bar, a Section which is akin to and in pan materia with Section 141 to govern the case in which the compensation under Section 163A has been received. The fact that the legislature has not provided for such a provision in the case of Section 163A manifestly shows that the intention of the legislature was to provide compensation in the Second Schedule as the final compensation and not as an interim compensation. A fortiori a claimant after receiving compensation under Section 163A cannot make a claim under Section 166 of the Act, a view taken by the Supreme Court in Hansrajbhai V. Kodala, 2001 ACJ 827 (SC).
6. Section 163A is a beneficial legislation and provides for payment of compensation based on structured formula without requiring pleading or establishing that the death or permanent disability in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or any other person. Such a beneficial legislation has given a liberal interpretation. Therefore, a claimant can move the court and make prayer at any stage of the proceedings to consider his claim petition for compensation under Section 163A though initially filed under Section 166 of the Motor Vehicles Act, and it would be for the concerned court to pass an order in accordance with law.
7. Compensation under Section 140 of the Act is in the nature of no fault liability and its grant under Section 163A on the basis of structured formula is final and not an interim compensation, is the view expressed by a Full Bench of Karnataka High Court in case titled Guruanna Vadi v. General Manager, Karnataka State Road Trans. Corporation, 2001 ACJ 1528 (Karnataka). This distinction has been cleared by their Lordships of the Supreme Court in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, 2001 ACJ 827 (SC), in the following words:
"In view of the non obstante clause notwithstanding anything contained in this Act the provisions of Section 163A would exclude the determination of compensation on the principle of fault liability.
Award of compensation under Section 163A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under Section 168. The object was to avoid delay in determination of compensation."
It is clearly deducible from the ratio of the aforesaid judgment of the Apex Court that any law which pertains to and determines the measure of damages to be awarded is a substantive law. It is more so when the compensation so determined by the provision is to the exclusion of all other provisions contained in the Act. Therefore, this Section determines the right of the parties finally. The only power provided for exercising an option in the matter for which claim petition for compensation is to be found in Section 163B which states, that a person is entitled to claim compensation under Sections 140 and 163A, he shall file the claim under either of the said Sections and not under both. There is, however, no prohibition in any of the provision of the Act from switching over the claim made under Sections 166 to 163A provided the accident had taken place on 14.11.1994 or thereafter because Section 163A came on the statute book only with effect from 14.11.1994, subject of course to claimants satisfying other requirements indicated in the Second Schedule. Explanation appended to Section 165 states that, for removal of doubts, the claim for compensation includes the claim under Section 140 as well as under Section 163A. Section 163A was introduced as a new provision. While Section 140 deals with the liability to pay compensation in certain cases on the principle of no fault. Further, under Section 140(5), the owner is made liable to pay compensation under Section 140 in addition to compensation he may be made liable to pay under any other law.
8. In this backdrop, the view expressed by the learned single Judge that the concept of no fault liability enshrined under Section 140 of the Act is distinguishable from the liability which can be fixed in terms of Section 163A, based on pre-structured formula, is a view to which no exception can be taken.
9. We are clearly of the opinion that the view expressed by the learned single Judge does not suffer from any infirmity inviting interference in these appeals.
10. For what is said and discussed above, inevitable conclusion reached is that these appeals do not possess any merit and are accordingly dismissed.
11. No order as to costs.