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This would clearly indicate that the Scheme is in alternative to the determination of compensation on fault basis under the Act. The object underlining the said amendment is to pay compensation without there being any long drawn litigation on a predetermined formula, which is known as structured-formula basis which itself is based on relevant criteria for determining compensation and the procedure of paying compensation after determining the fault is done away. Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in a fast moving society. Further, the law before insertion of Section 163 A was giving limited benefit to the extent provided under Section 140 for no fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles.

10. Counsel appearing for the appellants have raised a contention, that since there is no similar provision such as Sub-clause (4) of Section 140 in Section 163A, it would be open to the Insurance Company to contend that the death or permanent disablement occurred due to the wrongful act, neglect or default of the deceased or disabled person or has contributed by the deceased or permanent disabled man. I am of the view that if such a contention is allowed to be urged the very purpose and object of Section 163A would be defeated and render the provision otiose and a claimant would prefer to make a claim under Section 140 rather than under Section 163A by exercising option under Section 163B. Further if a claim under Section 140 is raised because of Section 140(4) such a claim would not be defeated by the owner of the vehicle or Insurance Company, as the case may be, and the claimant would get a fixed sum prescribed under Section 140(2). Sub-section (4) of Section 140 has been introduced by the Legislature since claim under Section 140 would be followed by Section 166. So far as Section 140 is concerned it is well settled that the Insurance Company or the owner, as the case may be, is bound to honour and pay the compensation under Section 140(2) Rs. 50,000/- in the case of death and Rs. 25,000/- in the case of permanent disablement. Claim for any further amount could be defeated by the Insurance Company or the owner or owners of the vehicle, as the case may be, if they could establish that the death or disablement occurred due to wrongful act, neglect or default of the deceased or disabled person. So far as claim under Section 163A is concerned, claim is restricted on the basis of pre-determination formula unlike in the case of application under Section 166. Sections 140, 161 and 163A have all got a purpose to achieve. Section 161 was introduced formulating a scheme to pay compensation in respect of death of any person resulting in hit and run motor vehicle accident and fixed sum of Rs. 25,000/- is for death and a sum of Rs. 12,500/- for permanent disablement. Sections 140, 163A and 161 are all benevolent provisions intended to mitigate the sufferings of the legal heirs of the deceased as well as disabled persons themselves. In my view, claim made under Sections 140, 161, 166 and 163A cannot be defeated by the Insurance Company or the owner, as the case may be, on the plea that death or disablement occurred due to the wrongful act, neglect or default of the deceased or the disabled person though claim under Section 161 is subject to Sections 162 and 163 of the Act. They all fall under the realm of substantive law creating new rights and liabilities and governed by the principle of no fault liability. The expanding role of social security and social justice envisaged that the liability to pay compensation must be on no fault, liability.

The court however upheld the plea of the claimant that a claim under Section 163A would be in addition to the claim under Section 166. Judgment of the Gujarat High Court was taken up in appeal before the Apex Court in Oriental Insurance Company v. Hansrajbhai (2001 (2) KLT 235 (SC) = 2001 (5) SCC 175). The court held that the claimant who opts for accepting the lump-sum compensation based on structured formula would get the relief at the earliest. The court also referred to the decision in Gujarat S.R.T.C. v. Ramanbhai Prabatbhai (1987 (3) SCC 234) and pointed out that it also gives vital advantage of not pleading or establishing any wrongful act or neglect or default of the owner of the offending vehicle or vehicles. The Apex Court noted that the no fault liability appears to have been introduced on the basis of the suggestion of the Law Commission to the effect that the expanding notions of social security and social justice envisage that liability to pay compensation must be "no fault liability" in order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents. We may in this connection point out that the question whether compensation claimed under Section 163A is in addition to the compensation claimed under Section 166 however stands referred to a Larger Bench in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2002 ACJ 1158).

12. In this connection, we may also refer to the decision of the Bombay High Court in Latabai Bhagwan Kakade v. Mohammed Ismail Mohammed Sab Bagwan (2002 ACJ 407). Contention was raised that the concept of liability under Section 163A cannot be equated with no fault liability. Contention was also raised that if the Insurance Company is not permitted to take such a defence the same would be illegal and violative of Article 14 of the Constitution of India. Division Bench of the Bombay High Court repelled the contention and held Section 163A is not violative of Article 14 of the Constitution of India. Contention was also raised that in the absence of clause similar to Sub-section (4) of Section 140 in Section 163A such a defence could be raised by the Insurance Company. Rejecting the contention the court held that if it is established by the claimants that the death or permanent disablement was caused due to accident arising out of the use of the motor vehicle then they will be entitled to payment of compensation in accordance with the structured formula in the Second Schedule. The court further held as follows: