Case: New India Assurance Company Limited Vs. Rukhminibai W/O Ashok Gore & Others

ORAL JUDGMENTDabholkar, J.The insurance company, with which the only vehicle involved in the accident was insured (M-80 No.MH 22-C-6563), challenges the judgment and award dated 26.4.2004 delivered by Principal Judge, Motor Accident Claims Tribunal (For short "Tribunal"), Parbhani, in Motor Accident Claims Petition No.457 of 2000.2. We have benefit of referring to original record and proceedings of the Tribunal, which is made available for ready reference and it must be said that, it was a claim for compensation towards death of Ashok Baliram Gore-husband of petitioner No.1 and father of Petitioner Nos.2 to 4. (Original Respondent No.3 is mother-in-law of original petitioner No.1 and thus, in fact, a claimant), under Section 163-A of the Motor Vehicles Act, 1988 ("M.V. Act" for short), as amended by Act 54 of 1994 with effect from 14.11.1994.Date of accident is 3.3.2000. The deceased was driving M-80 two wheeler and the vehicle is owned by Respondent No.2 and admittedly insured with appellant-company. One Balaji Kale was riding on pillion seat. They were travelling from Aundha to Nageshwadi. The vehicle dashed against a bridge near village Wagarwadi on Aundha-Jaula Bajar road. As a result of this accident, deceased suffered serious injuries and died on the spot. The incident was reported to police, by pillion rider Balaji Kale.3. As can be seen from the impugned judgment, learned Member of the Tribunal rejected contention of the insurance company that the deceased was not covered by the terms and conditions of the policy and, therefore, insurance company is not liable to indemnify the owner. This, learned Judge, did by relying upon policy, which is available at Exhibit 27. The contention is also rejected for want of proof that the vehicle was given by the owner to the deceased on hire charges. Averment of the insurance company that the deceased was not having driving licence and was not authorized to ride vehicle M-80 was rejected, because original driving licence of the deceased was placed on record at Exhibit 20.4. Heard respective counsel. While considering appeal, we are, in fact, not concerned with any of the findings of fact, recorded by learned Member of the Tribunal. Advocate Shri S.L. Kulkarni has pointed out that after discussion, learned Member of the Tribunal arrived at a conclusion that the deceased was having annual income of Rs.84,000/= per annum. Advocate Shri Kulkarni, therefore, submitted that the petition under Section 163-A of the M.V.Act is not a remedy available to legal heirs of the deceased Ashok Gore. Section 163-A and decision of the Honble Supreme Court in the matter of Deepal Girishbhai Soni v. United Insurance Co. Ltd. Baroda, AIR 2004 S.C. 2107, are relied upon for the purpose of supporting the proposition. Relevant portion of section 163-A may usefully be reproduced hereinbelow."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 of 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:-xxxx(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). xxxx"5. It is evident from the portion underlined above for the purpose of emphasis that the provision is given overriding effect over and above provisions contained elsewhere in this Act, or any other law for the time being in force. Terminal part of sub-section (1) indicates that compensation is payable as per Second Schedule. Second Schedule classifies the victims in accordance with age group, as well as income group simultaneously. According to age, first class is of the victims upto age 15 years and the last category is of the victims aged above 65 years. In between, there are ten groups of five years span, each. Horizontally, the victims are categorized into 13 income groups, lowest being of Rs.3000/= per annum and highest being of income of Rs.40,000/=. The tabularized details thus provide how much compensation should be paid to a victim, by arriving at a figure from both the columns i.e. age group and income group. It is pertinent to note that, income group above Rs.40,000/= does not find place in the table.6. In the matter of Deepal Soni (supra), the Honourable Supreme Court observed thus:"Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Govt. from time to time. S. 140 of the Act dealt with interim compensation but by inserting S.163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long drawn trial or without proof of negligence in causing the accident."While distinguishing Sections 140 and 163-A of the Act, it is observed;"Payment of the amount in terms of S.140 of the Act is ad hoc in nature. A claim made thereunder, is in addition to any other claim which may be made under any other law for the time being in force. Section 163-A of the Act does not contain any such provision. S.163-A does not contain any provision identical to sub-sec. (5) of S. 140 which is also indicative of the fact that whereas in terms of the latter, the liability of the owner of the vehicle to give compensation or relief under any other law for the time being in force continues subject of course to the effect that the amount paid thereunder shall be reduced from the amount of compensation payable under the said Section or Section 163-A. By reason of the S.163-A, the compensation is required to be determined on the basis of a structured formula whereas in terms of S.140 only a fixed amount is to be given."It must be taken into consideration that, by virtue of text of sub-section (2), remedy under Section 163-A appears to be similar like one under Section 140. This is because, even in an application under Section 163-A, the claimant is not obliged to establish that the death or permanent disablement was due to any wrongful act or negligence, or default of the owner of vehicle/s, or of any other person. However, the Petitioners under Section 163-A cannot have liberty to claim compensation at their sweet will, but they will be entitled to compensation as per tabularized structured formula in the Second Schedule to the M.V.Act.In the reported matter, para 67, the Honble Apex Court observed thus:"In our opinion, the proceeding under Section 163-A, being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/= can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act."In the reported matter, there were applications under Section 163-A, as well as 166 and, therefore, the Supreme Court directed to proceed with petition filed under Section 166. Adjustment of the amounts awarded under Section 163-A was done, by allowing the claimants to retain the amount as permissible under Section 140. However, Honble Apex Court, concluded paragraph 71, by observing, "this order shall not be treated as a precedent."7. Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Section 163-A is available, only when the income of the deceased/ victim - in case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Section 163-A, without petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to be dismissed.. We have given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate of 7-1/2%, computing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Section 163-A, thereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Section 163-A was filed. In fact, the reasons to prefer petition under Section 163-A are obvious. The deceased himself was the driver of the small two-wheeler and accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in the fact-situation of the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of the M.V.Act.In the judgment of the Tribunal, a specific issue is framed at serial No.3 as follows:"Whether, petitioners are entitled claim compensation u/s 163-A of M.V. Act",And although the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Section 163-A of the M.V. Act.

Decision:
1[ds]5. It is evident from the portion underlined above for the purpose of emphasis that the provision is given overriding effect over and above provisions contained elsewhere in this Act, or any other law for the time being in force. Terminal part of(1) indicates that compensation is payable as per Second Schedule. Second Schedule classifies the victims in accordance with age group, as well as income group simultaneously. According to age, first class is of the victims upto age 15 years and the last category is of the victims aged above 65 years. In between, there are ten groups of five years span, each. Horizontally, the victims are categorized into 13 income groups, lowest being of Rs.3000/= per annum and highest being of income of Rs.40,000/=. The tabularized details thus provide how much compensation should be paid to a victim, by arriving at a figure from both the columns i.e. age group and income group. It is pertinent to note that, income group above Rs.40,000/= does not find place in the table.Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Sectionis available, only when the income of the deceased/ victimin case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Sectionwithout petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to behave given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate ofcomputing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Sectionthereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Sectionwas filed. In fact, the reasons to prefer petition under Sectionare obvious. The deceased himself was the driver of the smalland accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in theof the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of thealthough the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Sectionof the M.V. Act.