HONOURABLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.449 of 2009 JUDGMENT: This appeal is directed against the order dated 14-11-2008 in M.V.O.P.No.92 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Chittoor, whereunder the claim application filed by the respondents 1 and 2 herein was allowed in part awarding compensation of Rs.3,90,000/- with interest at 9% per annum from the date of filing of the petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The respondents 1 and 2 herein filed claim application seeking compensation of Rs.4.00 lakhs for the death of the deceased R.Mohan Reddy, who died in a motor vehicle accident occurred on 29- 03-2005. The first claimant is the wife and second claimant is the son of the deceased. According to them, on the day deceased was driving a tipper lorry bearing Regn. No.OR-04-C-5422 loaded with gravel and he lost control of the vehicle near a turning, as a result of which, the vehicle over turned and the deceased received multiple injuries and died on the spot. A case in Crime No.35 of 2005 was registered. According to the claimants, the deceased died during the course of employment as a driver to the said tipper. 4. The 3rd respondent herein is the owner of the vehicle who remained ex parte. 5. The appellant herein is the insurer of the vehicle, who filed counter and opposed the claim denying the liability to pay the compensation. 6. During the enquiry, the 1st claimant was examined as P.W.1 and Exs.A-1 to A-4 were marked on their behalf. No oral evidence was adduced by the respondents and Ex.B-1, copy of the policy, was marked. 7. On consideration of the evidence available on record, the Tribunal held that the death of the deceased was occurred due to the accident. The Tribunal further held that the claimants are entitled for total compensation of Rs.3.90 lakhs. Aggrieved by the same, the insurer filed the present appeal. 8. The main contention of the learned counsel for the appellant-insurer is that as the accident occurred due to the rash and negligent driving of the lorry by the deceased himself, the application is not maintainable under Section 163-A of the Motor Vehicles Act (for brevity ‘the Act’) and the appellant-insurer is not liable for payment of compensation. 9. On the other hand, it is the case of the claimants themselves that the deceased while driving lorry lost control over the vehicle, which was loaded with gravel, near the turning, and so, the vehicle over turned resulting in the death of the deceased. 10. It is not the case of the claimants that there was any other vehicle involved in the accident nor there was any other intervening factor that contributed to the occurrence. The accident therefore occurred on account of the rash and negligent driving of the vehicle on the part of the deceased himself as a result of which, he lost control over the vehicle and the vehicle over turned. 11. The question which then arises for consideration is whether under those circumstances, the appellant-insurer, who issued policy Ex.B-1 covering the risk of third party, can be fastened with any liability and whether the deceased cannot be considered to be a third party insofar as crime vehicle is concerned. 12. A perusal of the copy of the policy would go to show that it was issued covering the risk of third party. The claim application is filed under Section 163-A of the Act which states as follows: “Section 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 authorized 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 purpose of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 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 any other person.” A perusal of the above provision would show that notwithstanding anything contained in any other law, the owner of the vehicle or the authorized person 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. Sub Section (2) states that in such a claim, the claimant shall not be required to plead or establish that the death or permanent disablement was due to any wrongful act or negligent or default of owner of the vehicle or of any other person. 13. Section 163-A, therefore, enables the victims of an accident to claim compensation without the necessity of pleading or proving the negligence that resulted in the accident, of course they would be entitled for compensation as per the structured formula incorporated in the Second Schedule. The provisions under Section 163-A are obviously intended to achieve a quick remedy to the claimants without subjecting them to undergo a rigmarole of pleading and establishing negligence on the part of the driver or owner of the vehicle, especially, in those cases, where the annual income of the deceased or victim in the case of fatal accident does not exceed Rs.40,000/- per annum. 14. Simply because Section 163-A dispenses with the requirement of pleading or establishing the element of rashness or negligence on the part of the driver for claiming compensation in accordance with the Second Schedule of the Act, it cannot be inferred that the above provision enables claimant to claim compensation for an accident resulting from the negligence of the deceased or the injured himself. In other words, in the case of the own fault or negligence, the person concerned cannot base his claim by pleading that he is not liable to establish the rashness or negligence as he is claiming compensation under Section 163-A of the Act. 15. I n Minu B.Mehta and another Vs. Balkrishna Ramchandra Nayan and another[1], the Apex Court held as follows: “22. The liability of the owner of the cars to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent.” It was further held that proof of negligence is necessary before the Tribunal and the insurance company could be held to be liable for the payment of compensation in a motor accident claim case. 16. In Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala and others[2], on the scope of 163-A, the Apex Court held as follows: “In the result, the contention of the claimants that right to get compensation under Section 163-A is additional to claim compensation on no fault liability (sic. fault liability) is rejected for the following reasons: (1)……… (2)…….. (3)……… (4) In view of the non-obstante clause ‘notwithstanding anything contained in this Act’ the provisions of Section 163-A would exclude determination of compensation on the principle of fault liability. (5) The procedure of giving compensation under section 163-A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under section 163-A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. (6) Award of compensation under section 163-A 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.” 17. In United India Insurance Co. Ltd., Vs. Kore Laxmi and others[3], this Court, in similar circumstances, where a claim was made by the legal representatives of the driver of the lorry which met with an accident, on account of his own negligence, held that the petition for compensation under Section 110-A of the Act was misconceived and the claimants ought to have approached the Commissioner under the Workmen’s Compensation Act and gave liberty to the claimants therein to file application before the Commissioner for Workmen’s Compensation. 18. Of course, the application was filed in the above case under Section 110-A of the Act, whereas the present application is filed under Section 163-A of the Act. It does not however make any difference inasmuch as even in the case of claim filed under Section 163-A of the Act, the claimants are not entitled to claim compensation in the case of own default or negligence on the part of the deceased or the injured. 19. In the above case, reference was made to a decision in D.Jayamma Vs. S.Govindaswamy[4], wherein, a Division Bench of Karnataka High Court was dealing with a case similar to the present one and there also, the driver lost control over the lorry while negotiating a curve, resulting in the death of the driver. The High Court of Karnataka held that the legal representatives of the deceased were not entitled to claim compensation under the Act and the remedy lies under the provisions of the Workmen’s Compensation Act. 20. In Appaji (since deceased) and another Vs. M.Krishna and another[5], the Apex Court, dealt with a claim under Section 163- A of the Act that arose out of the rash and negligent driving of the scooter by the deceased himself. Basing reliance on the non-obstante clause appearing in Section 163-A of the Act, it was contended that the accident may have been caused by the rash and negligent act of the deceased, but the claimants, in law, would be entitled for payment of compensation on no fault basis and only question to be considered is whether the accident resulting in the death of the deceased has arisen out of use of the motor vehicle regardless whether the same was on account of rash and negligent act of the deceased himself or of some other person or agency. The Apex Court referred to the decision of Balkrishna Ramchandra Nayan’s case (1 supra) and observed that the legal position enunciated therein continued to hold good till the Motor Vehicles Act, 1939 was amended by the Act 47 of 1982 wherein, Section 92-A was incorporated. It was observed that Section 92-A made a clear departure from the common law principle that the claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of use of any such vehicle. 21. Section 92-A of the Act old co-relates to Section 140 of the Act, 1988. The legal position was thus settled that regardless whether the person, injured or killed in a road accident, was himself or some other person is wholly responsible for the accident, compensation under the said provision was payable to the victim or his legal heirs. In the present case, the claim is made under Section 163-A of the Act which was introduced by the Amendment Act 54 of 1994 with effect from 14-04-1994. After referring to the background, in which, Section 163-A was introduced by way of amendment and the objections and reasons for such an amendment and analyzing the scope of the said provisions, the Apex Court, in the above decision in M.Krishna’s case (5 supra), in paras 16 and 22, held as follows: “Section 163-A of Motor Vehicles Act was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The non obstante clause in section 163-A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under section 163-A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not, however, mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same.” In the above decision, High Court of Karnataka has categorically held that one who is the victim of his own actions of rash and negligent driving cannot invoke Section 163-A of the Act for making a claim and Parliament did not intend to provide for compensation to the person responsible for the accident and structured formula basis in such cases. It was further held that Section 163-A of the Act does not alter the legal position that in a case where no liability arises against the driver or owner of the vehicle on account of the accident, no such liability will arise even against the insurance company with whom the vehicle involved in the accident is insured. It was further held that Section 163-A of the Act does not alter the legal basis on which liability arises under Section 147 of the Act and in the case of accident, whether the person killed or injured is himself responsible for the accident, no liability would arise against the injured nor can any such liability be enforced under Section 163-A of the Act and for a liability under Section 163-A arose against the insurance company, it is essential that such a liability may first arise against the insured and the insurance company under Section 147 of the Act. 22. However, a Three Judge Bench of the Apex Court in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda[6], while dealing with scope of Section 163-A vis-à-vis sections 166 and 140 of the Act and answering the reference which arose pertaining to the correctness of the decision in Kodala’case[7] (2 supra), held as follows: “66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, “under the provision of the Act”, “provisions of this Act”, “under any other provisions of this Act” or “any other law or otherwise”. In Section 163-A, 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 wide nature which would mean that the provisions of Section 163- A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of.” While holding that Kodala’s case has correctly been decided, the Apex Court did not agree with the finding in Kodala’s case that if person negligent even under Section 163-A of the Act, the annual income of Rs.40,000/- per annum shall be treated as a cap and held that 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 of Section 163-A of the Act. 23. In the above decision, the Apex Court held that Section 163- A of the Act covers cases where even negligence is on the part of the victim. In view of the above decision of the Three Judge Bench of the Apex Court, the contention of the learned counsel for the appellant that the claimants are not entitled to seek remedy under the provisions of 163-A of the Act in view of the fact that the accident occurred due to the negligence of the deceased himself cannot be accepted. 24. The appellant has not seriously disputed the quantum of compensation awarded by the Tribunal. According to the claimants, the deceased was drawing Rs.5,000/- per month as salary and marked Ex.A-4, salary certificate. The Tribunal has rightly rejected Ex.A-4, as the contents thereof were not proved as the owner of the vehicle who is said to have been issued Ex.A-4, certificate, was not examined. The Tribunal, has therefore, taken the income of the deceased Rs.3,000/- which is reasonable. After deducting 1/3rd towards personal expenses, the Tribunal estimated the contribution of the deceased Rs.2,000/- per month i.e. Rs.24,000/- per annum and applying the multiplier ‘15’ which is appropriate to the age of the deceased, who was shown to be aged ’38’ by the date of death, arrived at the loss of dependency Rs.3,60,000/-. The claimants would be entitled for a sum of Rs.5,500/- towards loss of estate, and Rs.2,000/- towards funeral expenses and 1st claimant wife would be entitled for a sum of Rs.2,000/- towards loss of consortium and thus, the claimants would be entitled for a total compensation of Rs.3,69,500/-. The interest awarded by the Tribunal is on the higher side. As per the decision of the Apex Court in Sarala Vermaa Vs. Delhi Transport Corporation[8], the claimants should be entitled to the interest at 6% per annum on the aforesaid amount of Rs.3,69,500/- from the date of petition. The impugned order is modified accordingly. 25. In the result, the appeal is allowed in part to the extent stated above. No costs. ________________ 15-09-2011 KVR [1] 1977 A.C.J. 118 [2] 2001 A.C.J. 827 [3] 2003 A.C.J. 203 [4] 1982 A.C.J. 467 (Karnataka) [5] 2004 A.C.J. 1289 [6] (2004) 5 S.C.C. 385 [7] (2001) 5 S.C.C. 175 = 2001 A.C.J. 827 [8] 2009 (6) S.C.C. 121