Himachal Pradesh High Court
Oriental Insurance Co. Ltd. vs Narvada And Ors. on 18 May, 2005
Equivalent citations: IV(2005)ACC158, 2007ACJ202
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This judgment shall dispose of 4 appeals being F.A.O. (MVA) Nos. 301, 306 of 1997, 339 and 345 of 2000 as they arise out of the same accident and out of two similar awards dated 27.6.1997 passed by learned Motor Accidents Claims Tribunal (II), Mandi under Section 163-A of the Motor Vehicles Act, 1988 (hereafter referred to as 'the Act').
2. The facts necessary for disposal of the case are that the deceased Meenakshi Devi and her cousin Varinder Thakur were travelling on scooter No. HP 31-0799 which was hit by bus No. HP 31-3637. In this accident Meenakshi Devi died and Varinder Thakur suffered injuries. The bus was owned by respondent Nos. 2 and 4 and driven by respondent No. 3 and the conductor therein was respondent No. 5. The bus was insured with the appellant insurance company.
3. The parents of Meenakshi Devi filed a claim petition purporting to be under Section 163-A read with Section 166 of the Motor Vehicles Act for grant of compensation. It is quite obvious that this petition was filed under the impression that the claimants are entitled to compensation both under Section 163-A as no fault liability and under Section 166 on the basis of fault. The petition was numbered as Claim Petition No. 76 of 1996.
4. Varinder Thakur being injured also filed a petition. His claim was also both under Section 163-A and Section 166 of the Motor Vehicles Act. The petition was numbered as Claim Petition No. 77 of 1996.
5. The respondents filed similar replies in both cases. The respondent No. 1 owner of the bus filed a reply wherein the accident was admitted but the other averments were denied especially with regard to the expenses on treatment, etc. It was denied that petitioners were dependent upon the deceased. It was specifically pleaded that the amount of compensation claimed was highly excessive. It was further alleged that the accident had occurred solely due to rash and negligent driving of the scooter and that driver of the bus had not in any manner contributed to the accident. The driver filed a separate reply admitting the accident but stated that the accident had not occurred due to his rash and negligent driving. The insurance company filed a reply stating that the driving licences of both the bus driver and scooter driver were not made available to it and the same may be made available to it. It was alleged that the driver of the bus did not have a valid driving licence and as such the insurance company was not responsible. The other allegations were also denied and a plea was raised that compensation both under Section 163-A and Section 166 could not be claimed.
6. In the petition relating to the death of Meenakshi it was mentioned that the deceased was aged 18 years and she was a student. Since she was not earning her income be taken as Rs. 15,000 per annum as per Second Schedule of the Act. It was mentioned that in her case the compensation payable under Section 163-A as per Second Schedule to Motor Vehicles Act, 1988 was Rs. 2,85,000. After deducting V3rd, i.e., Rs. 95,000 the amount payable was Rs. 1,90,000. In addition thereto a claim was made for Rs. 2,000 on account of funeral expenses, Rs. 2,500 for loss to estate and Rs. 2,000 for medical expenses. Under Section 166 of the Act claim for Rs. 18,02,000 was made. Along with the petition photocopies of F.I.R., matriculation certificate, medico-legal certificate and post-mortem report were filed.
7. On 28.2.1997 counsel for petitioners made a statement that compensation be awarded under Section 163-A read with Second Schedule to Motor Vehicles Act, 1988. The matter was argued on 13.6.1997 and without framing any issues or recording any evidence the award was announced and the compensation of Rs. 1,96,500 as claimed by the petitioners was awarded to them.
8. In the case of Varinder Thakur under Section 163-A claimants claimed Rs. 5,000 for grievous injury of leg, Rs. 5,000 for grievous injuries of jaws, Rs. 1,000 for non-grievous injury of skull, Rs. 1,000 for non-grievous injury of hand, Rs. 10,000 for medical expenses, Rs. 25,000 as loss of income for one academic year, Rs. 24,000 for permanent partial disablement for the grievous injury of leg and Rs. 24,000 for the grievous injuries of jaws. Thus, a total amount of Rs. 85,000 (Sic.) was claimed. In fact if the amount is totalled it comes to Rs. 95,000. While under Section 166, Rs. 14,05,000 was claimed. In this case along with the claim petition photocopies of F.I.R., X-ray form, the original medico-legal certificate and some original bills/ vouchers of medicines were filed. In this case also learned Counsel for the petitioners stated that compensation be awarded under Section 163-A of the Motor Vehicles Act read with Second Schedule to the Act. Again without recording any evidence the Tribunal has passed the order granting compensation of Rs. 85,000 in favour of the claimants.
9. Section 163-A of the Motor Vehicles Act reads as follows:
163-A. 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 authorised insurer shall be liable to pay in the case of death 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.
(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.
10. The Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934 (SC), has held that a person is not entitled for compensation both under Section 163-A as well as under Section 166 of the Motor Vehicles Act. He can only claim compensation under one of the sections. The Supreme Court held as follows:
(57) We, therefore, are of the opinion that remedy for payment of compensation both under sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt or elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both.
Therefore, only one of the claims could have been pursued and not both.
11. Payment of no fault liability under Section 163-A has to be made as per the Second Schedule to Motor Vehicles Act. The Apex Court in U.P. State Road Trans. Corpn. v. Trilok Chandra , has held that the Second Schedule abounds with mistakes and this Schedule should not be followed blindly. It should be used only as a guide. In case of fatal accidents and injuries the amount has to be calculated by taking the income and multiplying it by the multiplier keeping in view age of the victim. One-third of the amount so reached has to be deducted towards the personal expenses and maintenance of the victim. The balance amount has to be paid along with funeral expenses of Rs. 2,000 and loss to the estate of Rs. 2,500 in all cases. In case where one of the beneficiaries is a spouse then Rs. 5,000 for loss of consortium is payable. The Schedule also provides that the medical expenses up to a maximum of Rs. 15,000 can be paid. However, these must be supported by vouchers/ bills.
12. In cases of injuries and disabilities the amount payable for pain and suffering in case of grievous injuries is Rs. 5,000 and in the case of non-grievous injuries Rs. 1,000. Medical expenses should be as per the actual expenses incurred supported by bills/vouchers but not exceeding one time payment of Rs. 15,000. In cases of injuries leading to disabilities, loss of actual income for the period of disablement not exceeding 52 weeks can be paid. In addition to this in case of permanent or total disablement the amount payable has to be calculated as per the Table by multiplying the annual loss of dependency with the multiplier applicable to the age of the injured on the date of accident. In case of permanent partial disablement it has been laid down that the amount payable will be such percentage of total amount payable in case of total disablement. Keeping in view the above law and facts the cases are now being dealt with separately.
F.A.O. Nos. 301 of 1997 and 345 of 2000:
13. These two appeals one by insurance company and one by the claimants arise out of the claim petition relating to the death of Meenakshi. Admittedly, Meenakshi was aged about 18 years. She was not earning. Therefore, her deemed income has to be taken at the rate of Rs. 15,000 per annum under Second Schedule of the Act. The multiplier applicable in such a case is 16 and the total compensation comes to Rs. 2,40,000. In the claim petition it was mentioned that under Section 163-A the amount payable is Rs. 2,85,000. It appears that the Tribunal below has not even cared to see the provisions of the Schedule and has blindly accepted the calculations made in the claim petition without verifying the same from the Schedule. The award is absolutely silent in this regard and there is only one line in the award which deals with the aspect. It reads as follows:
As per Section 163-A of the Motor Vehicles Act, in such cases, petitioners are entitled to compensation as indicated in Second Schedule and as per Second Schedule, the compensation in respect of third party fatal accident in this case works out to Rs. 1,96,500....
14. This shows total non-application of mind on behalf of Claims Tribunal. The Tribunal has not even cared to read the Act and the Schedule. In case the Schedule has been read it would have been clear that even if income of the deceased is taken at Rs. 15,000 per annum and multiplier of 16 is used the total compensation payable comes to Rs. 2,40,000. Deducting 1/3rd or Rs. 80,000 for the personal expenses as per the note below the Schedule the amount payable would be Rs. 1,60,000. To this can be added Rs. 2,000 for funeral expenses and Rs. 2,500 for loss to estate. Therefore, amount payable could only be Rs. 1,64,500 under Section 163-A of the Act. How the Tribunal awarded Rs. 1,96,500 cannot be gleaned from the award.
F.A.O. Nos. 306 of 1997 and 339 of 2000:
15. These two F.A.Os. one by the insurance company and one by the claimant are against the award arising out of Claim Petition No. 77 of 1996 filed by Varinder Thakur. This is a case of injuries. Again the Tribunal while passing the award has not given any reasoning for the same and the only relevant line in the award reads as follows:
As per Section 163-A of the Motor Vehicles Act, in such cases, petitioners are entitled to compensation as indicated in Second Schedule and as per Second Schedule, the compensation in respect of third party injuries works out to Rs. 85,000....
16. This shows an even more callous attitude on the part of the Tribunal. The claim petition insofar as it relates to Section 163-A reads as follows:
21 (a) Compensation under Section 163-A (The Second Schedule) General Damages (4) (i) Pain and suffering:
(a) Grievous injury of leg Rs. 5,000
Grievous injuries of jaw Rs. 5,000
(b) Non-grievous injury of skull Rs. 1,000
Non-grievous injury of hand Rs. 1,000
(ii) Medical expenses Rs. 10,000
(5) (a) Loss of income (one academic year) (1995-96) Rs. 25,000
(b) For permanent partial disablement for grievous
injury of leg Rs. 24,000
For grievous injuries of jaw Rs. 24,000
Total claim under Section 163-A Rs. 85,000
(The Second Schedule) (rupees eighty-five thousand only).
17. The Tribunal has not even cared to see what are the averments made in the claim petition and whether these amounts could have been awarded under Section 163-A and the Second Schedule to the Act. In case of injuries and disability the amount of pain and suffering can only be awarded once. Rs. 5,000 can be awarded if the injuries are grievous and Rs. 1,000 in case of non-grievous injuries. In the claim petition the claimant claimed Rs. 5,000 for grievous injury of leg, Rs. 5,000 for non-grievous injuries of jaw, Rs. 1,000 for grievous injury of skull and Rs. 1,000 for non-grievous injury of the head. Rs. 12,000 could not have been granted for pain and suffering. For calculating the pain and suffering each injury cannot be taken up separately. The maximum amount which can be granted under this head is Rs. 5,000. The claimant had claimed Rs. 10,000 for medical expenses. As discussed above the Schedule permits grant of such expenses subject to production of vouchers. In this case the vouchers are for Rs. 2,941.70. Therefore, no amount beyond this could have been awarded.
18. Claimant also claimed Rs. 25,000 for loss of income for one academic year. This could not have been granted since it is neither countenanced under the Schedule nor there was any proof of loss of one academic year. A sum of Rs. 24,000 for permanent partial disablement of grievous injury of leg and a sum of Rs. 24,000 for permanent partial disability of jaws was claimed and granted without any reasoning. There is no certificate on record to show that claimant had suffered permanent partial disablement. How this amount has been awarded is not decipherable from the award. The only documents filed with the claim petition are the photocopies of the F.I.R., X-ray form and medico-legal certificate. Photocopies cannot be read in evidence. The Tribunal has not even cared to see the original documents. The award of the Tribunal being without any reasoning and without any basis is, therefore, liable to be set aside.
19. The approach of Tribunal in both the cases above shows that Tribunal has blindly accepted the averments made in the claim petitions under Section 163-A. The Tribunal has not cared to see whether the claim was justified or payable under the provisions of Section 163-A.
20. It is no doubt true that the provisions of Section 163-A are meant to give quick succour to claimants. However, the basic requirements will have to be met. In cases of death there must be some proof of the age and income of the victim. If there is some dispute with regard to income, then evidence with regard to the same will have to be led. Purpose of Section 163-A is to award compensation without having to prove negligence of the driver of the vehicle. However, the accident has to be proved. The ownership and insurance of the vehicle has to be proved. The age and income of the deceased has to be proved and it is only thereafter that award can be announced. It also must be proved that the claimants are the legal representatives of the deceased. In the cases of injuries the disability must also be proved. It is only thereafter that the court can make the calculations. The Tribunal cannot rely upon photocopies of documents while making an award under Section 163-A of the Act.
21. In a petition under Section 163-A the Tribunal unless the averments made in the claim petition are admitted is bound to frame issues and give an opportunity to the parties to prove their case. The Tribunal may, if it so desires, direct that the parties may lead evidence by way of affidavits. The documents have to be proved in accordance with law. The photocopies of the documents cannot be accepted at their face value. The medical expenses must also be proved by production of original bills and vouchers. Similarly disability certificate must be proved in accordance with law. It is only thereafter that the award can be made under Section 163-A.
22. Section 140 of the Motor Vehicles Act, 1988 provides for payment of interim compensation and not final compensation. A Division Bench of this court in Himachal Road Trans. Corporation v. Garji Devi , held that before making an award under Section 140 the Tribunal must on the basis of the material on record prima facie satisfy itself that:
(i) the accident has arisen out of use of a motor vehicle;
(ii) the said accident has resulted in permanent disablement of the person, who is making the claim or death of the person, whose legal representative(s) is making the claim;
(iii) the claim is made against the owner and the insurer of the motor vehicle involved in the accident;
(iv) the claim is made, in the case of the death of a person, by his legal representatives.
23. When this court had laid down the guidelines for making award under Section 140 of the Motor Vehicles Act which are interim in nature it is all the more necessary that in cases under Section 163-A of the Motor Vehicles Act the Tribunal should ensure that the award is made strictly in consonance with the Act and the Schedule. The award cannot be passed just as a matter of course. In the present case, the Tribunal has passed both the awards without application of mind and without complying with the mandate of Section 163-A and Second Schedule to the Motor Vehicles Act. It may also be pertinent to mention that the Tribunal did not deal with the question whether a composite application under Section 163-A and Section 166 was maintainable. The counsel for claimants in both cases has made a statement that award may be made under Section 163-A but there is no statement recorded that the counsel does not press the petition under Section 166.
24. The claimants have also filed two appeals. Originally the claimants had filed cross-objections but by order of the court dated 4.7.2000 these were ordered to be treated as separate appeals and the delay in filing the appeals were condoned. In these appeals it is alleged that the claimants had never given up their claim under Section 166 and they should have been awarded compensation both under Section 163-A and Section 166. In view of the decision of the Supreme Court in Deepal Girishbhai Soni's case, 2004 ACJ 934 (SC), these appeals cannot be accepted.
25. Mr. Rajesh Mandhotra, the learned Counsel for the claimants in all the appeals states that his clients were always under the impression that both the claims under Section 163-A and Section 166 were payable and, therefore, the claimants may be given an option to pursue the cases either under Section 163-A or Section 166. This prayer appears to be genuine. A perusal of the record shows that at no time claimants gave up their right to claim compensation under Section 166 of the Act. Therefore, it would be in the interest of justice to grant one opportunity to the claimants to exercise such option. Since the claimants are themselves responsible for creating this situation by filing composite applications the owner and insurance company cannot be made liable to pay interest for the period of 8 years the appeals remained pending. In case an award is passed in favour of the claimants they shall not be entitled for any interest for the period w.e.f. 27.6.1997 till today.
26. Before parting with the case, it is ordered that the amount of Rs. 50,000 released to the claimants in F.A.O. No. 301 of 1997 shall be treated to have been released to them under Section 140 of the Act and the balance amount along with up-to-date interest is ordered to be refunded to the insurance company. Similarly in F.A.O. No. 306 of 1997 the amount of Rs. 25,000 shall be deemed to have been paid to the claimants under Section 140 of the Motor Vehicles Act and the balance amount along with up-to-date interest shall be refunded to the insurance company.
27. In view of the above discussion, the awards in both the cases are not sustainable and are set aside and cases are remanded to the Tribunal to decide the same afresh.
28. Parties through their counsel are directed to appear before Tribunal below on 24.6.2005. The claimants shall clearly exercise their option on the said date and state whether they want to proceed under Section 163-A or under Section 166 of the Motor Vehicles Act. The Tribunal shall proceed accordingly.
29. All the appeals are disposed of accordingly with no order as to costs.