Sikkim High Court
National Insurance Company Limited vs Thinlay Chewang Lachenpa And Others on 21 April, 2015
Author: Sunil Kumar Sinha
Bench: Chief Justice
1
MAC APP No. 19/2014
HIGH COURT OF SIKKIM, GANGTOK
( Civil Appellate Jurisdiction )
S.B. : HON'BLE SHRI SUNIL KUMAR SINHA, C.J.
MAC APP.NO. 19/2014
The Branch Manager,
National Insurance Company Ltd.,
Gangtok Branch,
East Sikkim-737101.
... Appellant/Insurer
Versus
1. Shri Thinlay Chewang Lachenpa,
Aged about 43 years,
S/o T. Bhutia.
2. Shri Galay Lachenpa @ Gele Namgyal Bhutia,
Aged about 26 years,
S/o T. Bhutia.
Permanent residents of:
Lachen,
P.O & P.S. Lachen,
North Sikkim.
...Respondents/Claimants
3. Shri Sonam Topgyal Bhutia,
Son of Shri Tsangyal Lachenpa,
C/o Shri Nedup Lachenpa,
Presently residing at,
Swastik, Near GREF Gate,
P.O. Raj Bhawan & P.S. Gangtok,
East Sikkim.
(Owner of Bolero bearing Registration No.SK-01-J-
1568)
... Respondent/Owner
2
MAC APP No. 19/2014
APPEAL UNDER SECTIOIN 173 OF THE MOTOR VEHICLES ACT, 1988.
Appearance
Mr. Thupden G. Bhutia, Advocate for the Appellant.
Mr. Ajay Rathi, Advocate for Respondents 1 and 2.
Mr. Ashok Pradhan, Advocate for Respondent No.3.
JUDGMENT
(21.04.2015) Following Judgment of the Court was dictated on Board by SUNIL KUMAR SINHA, CJ.
1. The insurer is aggrieved with the award dated 30.11.2013 passed in MACT Case No. 11/2012 by the Motor Accident Claims Tribunal, East and North Sikkim at Gangtok. By the impugned award, a sum of Rs. 4,19,650/- has been awarded as compensation to Respondents 1 and 2 by the Tribunal with interest @ 10 % per annum from the date of filing of claim petition, i.e. 01.06.2013, till realization.
2. Respondents 1 and 2/ claimants are brothers of deceased Kalsang Namgyal Bhutia, who died in the motor accident on 14.04.2013. The deceased was unmarried. He was aged about 31 years. He himself was driving the vehicle at the time of the accident. He was earning Rs.3,325/- per month. On his death, Respondents 1 and 2 filed claim petition under Section 163 A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). The Tribunal held that the liability to pay compensation was that of Insurance Company ('Appellant' herein). The Tribunal, holding the income of the 3 MAC APP No. 19/2014 deceased as Rs.3,325/- per month, applied multiplier of 17 and after deducting 50%, awarded Rs.3,39,150/- towards loss of earning. The Tribunal further awarded Rs.25,000/- as funeral expenses; Rs.2500/- as loss of estate; Rs.50,000/- on account of future prospects and other pecuniary damages and Rs.3000/- towards transportation to the hospital. The Tribunal, thus, awarded a total sum of Rs.4,19,650/- as compensation to Respondents 1 and 2/ claimants on account of death of deceased Kalsang Namgyal Bhutia in the said accident. The Tribunal also awarded interest @ 10% per annum from the date of filing the claim petition, i.e. 01.06.2013, till realization.
3. Mr. Thupden G. Bhutia, learned counsel appearing on behalf of the Appellant, has not disputed the liability of the Appellant to pay compensation. He has also not disputed the amount towards loss of earning, i.e. Rs.3,39,150/-. He has argued that as the claim petition was filed under Section 163A of the Act, the amount towards funeral expenses should have been Rs.2,000/- and no amount should have been awarded towards future prospects and transportation. He relied on the decisions of National Insurance Company Ltd. vs. Gurumallamma & Anr. : 2012 (9) SCALE 764, National Insurance Company Ltd. Vs. Chacko : 2015 (1) TAC 464 (Kerala) and two earlier decisions of this Court in MAC Appeal No.21/2014 dated 07.04.2015 and MAC App. No. 16/2014 dated 16.04.2015.
4. On the other hand, Mr. Ajay Rathi, learned counsel appearing on behalf of the claimants, has opposed these arguments 4 MAC APP No. 19/2014 and supported the award passed by the Claims Tribunal. Mr. Ashok Pradhan, learned counsel appearing on behalf of Respondent No. 3, has also opposed the above arguments.
5. I have heard counsel for the parties.
6. In Deepal Girishbhai Soni vs. United India Insurance Co. Ltd. : (2004) 5 SCC 385, it was held that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both. Section 163A, which has an overriding effect, provides for special provisions as to payment of compensation on structured formula basis. In Section 163A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of a wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force.
7. This Court, relying on the decisions of Deepal Girishbhai Soni, Gurumallamma and Chacko (supra) held in MAC Appeal No. No.21/2014 that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other, as provided by the Act, a claimant must opt/elect to avail his 5 MAC APP No. 19/2014 remedy either under Section 163A or under Section 166, but not under both. It is for the claimants to select as to which provision they would resort to. If they resort to the provisions of Section 163A, a fixed amount in accordance with the Second Schedule alone shall be ordered to be paid irrespective of the loss sustained by them. The amount of compensation ultimately determined under Section 163A would be in full and final settlement of the claim for compensation and any amount in deviation thereof would not be held to be correctly awarded to them. This Court also agreed with the judgment rendered by the Division Bench of the Kerala High Court that without the Second Schedule, Section 163A would remain unworkable and the quantum of compensation under Section 163A cannot be worked out without resorting to the Second Schedule.
8. It is on these broad principles, I shall now examine the compensation awarded to Respondents 1 and 2.
9. The Tribunal has awarded Rs.25,000/- towards funeral expenses, whereas, according to the Second Schedule, it will not go beyond Rs.2,000/-. The Tribunal has not assigned any reason for awarding the said amount under the aforesaid head.
10. The Tribunal has further awarded Rs.50,000/- towards future prospects and other non-pecuniary damages. It has also awarded Rs.3,000/- towards transportation to hospital. It appears that the compensation under these heads were awarded in terms of the Judgment of Rajesh and Others vs. Rajbir Singh and Others :
(2013) 9 SCC 54. We note from the record that here the claim 6 MAC APP No. 19/2014 petition was filed under Section 163A, therefore, the ratio laid down in Rajbir (supra) would not be applicable in this case. Sections 163A and 166 are the two independent provisions in the Motor Vehicles Act, 1988. When the claimants had chosen to file their proceedings under Section 163A, the Tribunal ought to have followed the provisions contained in the Second Schedule, as in such cases the ratio relating to claim petition filed under Section 166 would not apply. Thus, the amount(s) awarded under these heads were not correct. The heads like future prospects and transportation do not exist in the Second Schedule and if the provisions of the Second Schedule were to be strictly applied being a petition filed under Section 163A, the above amount(s) towards future prospects and transportation should not have been awarded by the Tribunal.
11. It appears that the Tribunal has awarded the above compensation without taking note of the fact that the instant claim petition was filed under Section 163A and not under Section 166 of the Motor Vehicles Act. I, therefore, re-compute the compensation as follows: -
(i) Loss of earning - Rs.3,39,150.00
(ii) Funeral Expenses - Rs. 2,000.00
(iii) Loss of Estate - Rs. 2,500.00
=================================
TOTAL - Rs.3,43,650.00
=================================
Respondents 1 and 2/claimants shall be entitled to receive a sum of Rs.3,43,650/- (Rupees three lakhs forty three thousand six hundred and fifty) only as compensation on account of death of deceased 7 MAC APP No. 19/2014 Kalsang Namgyal Bhutia, in the motor accident. They shall also be entitled to receive interest @ 10% per annum on the said amount of Rs.3,43,650/- from the date of filing of the claim petition, i.e. from 01.06.2013, till realization. Any amount paid/deposited earlier shall be adjusted in the aforesaid amount of compensation now awarded to Respondents 1 and 2/ claimants by this Court.
12. The Appeal is allowed to extent indicated above.
13. There shall be no order as to costs.
Sd/-
( Sunil Kumar Sinha )
Chief Justice
21.04.15
Approved for reporting : Yes/No.
Internet : Yes/No.
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