*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +M.A.C.M.A. No.760 of 2005 and Cross Objections % 18/04/2011 M.A.C.M.A. No.760 of 2005: # United India Insurance Company Limited, Khairatabad, Hyderabad ..... APPELLANT Vs. $ Smt. Bhanu Bee and others .....RESPONDENTS ! COUNSEL FOR THE APPELLANT: Sri R. Briz Mohan Singh ^ COUNSEL FOR THE RESPONDENTS: Sri T. Vishwarupa Chary Cross Objections: # Smt. Bhanu Bee and others ..... CROSS OBJECTORS Vs. $ United India Insurance Company Limited, Khairatabad, Hyderabad .....RESPONDENT ! COUNSEL FOR THE CROSS OBJCTORS: Sri T. Vishwarupa Chary ^ COUNSEL FOR THE RESPONDENT: Sri R. Briz Mohan Singh < Gist : Ø Head Note: ? CITATIONS: 1. 1977 AIR (SC) 1248 2. 2009 ACJ 1298 3. 2005 ACJ 543 4. 2005(2) ALD (NOC 118) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.760 of 2005 and Cross Objections M.A.C.M.A. No.760 of 2005: Between: United India Insurance Company Limited, Khairatabad, Hyderabad .. Appellant AND Smt. Bhanu Bee and others .. Respondents Cross Objections: Between: Smt. Bhanu Bee and another .. Cross Objectors AND United India Insurance Company Limited, Khairatabad, Hyderabad and another .. Respondents COMMON JUDGMENT: The civil miscellaneous appeal is directed against the award and decree in O.P. No.748 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-XIII Additional Chief Judge, Fast Tract Court, City Civil Court, Hyderabad, dated 17-12-2004. Both the respondents to the appeal are the parents of Ahmed Khan @ Rahamath Khan, aged 22 years, then working as a driver for a monthly salary of Rs.4,000/-. On 16-10-2002 Ahmed Khan was coming on a Hero Honda No.AP 13F 1990 and at about 8.30 P.M. near NTR cross roads in the outskirts of Yenkepalli, the vehicle turned turtle and Ahmed Khan receiving grievous injuries on the head and the vital parts of the body, died on the spot. Vikarabad police registered crime No.325 of 2002 and the dead body was subjected to post-mortem. The deceased was contributing his entire income for the maintenance of the family and the claimants lost their only son and source of livelihood in their old age. Hence, the claim under Section 163-A of the Motor Vehicles Act, including the claim under Section 140 of the Motor Vehicles Act, for a compensation of Rs.3,00,000/- including damage to clothing, funeral and obsequies expenses, loss of life and future earning power. The owner of the vehicle remained exparte, while the insurer contested the claim contending that the deceased died due to his own negligence and the insurance policy does not cover own negligence. The claimants are put to strict proof of all their allegations and the insurer denied the deceased having any driving licence or the vehicle being roadworthy. Hence, the insurer desired the claim to be negatived. The Tribunal framed issues about the death of the deceased in the accident and the entitlement of the claimants to compensation. During the enquiry, P.W.1 was examined and Exs.A.1, A.2 and B.1 were marked. The Tribunal rendered the impugned award firstly concluding that Ex.A.1 first information report and Ex.A.2 inquest report showed that Ahmed Khan died, as his motor cycle turned turtle. The Tribunal took the age of the deceased as 23 years from Ex.A.2 inquest report and in the absence of any material to prove the income of the deceased as Rs.4,000/- per month as driver, the Tribunal fixed the income at Rs.1,500/- per month. The age of the mother was not accepted to be 40 years, as there was no corroborating evidence for the claims of P.W.1 and from the photographs, the Tribunal took her age as 51 years. The Tribunal deducted one-third of the income towards the personal expenses of the deceased, applied a multiplier of 11 and granted Rs.1,32,000/- towards loss of dependency, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. The Tribunal awarded the compensation jointly and severally against both the respondents with future interest at 6 per cent per annum from the date of the petition till the date of realization and proportionate costs. The Tribunal gave directions about the disbursement of the compensation. The insurer challenged the award contending that the first information report clearly shows that the deceased caused the accident due to his own negligence and as the owner of the vehicle did not incur any liability for the death or bodily injury to any person, the insurer cannot be liable as held in Minu B. Mehta v. Balkrishna Ramachandra Nayan[1]. Section 147 does not make the insurer liable, as it uses the word ‘any person’ and not a third party. A third party does not include a driver and even if the driver is an employee, the claim can be only before the Workmen’s Compensation Commissioner. Section 163-A of the Motor Vehicles Act does not create any additional liability or no fault liability on the owner and the accident speaks for itself. Section 163-A did not introduce any additional no fault liability than one under Section 140 and it will be for the insurer to establish that the accident occurred due to some other cause than the own negligence or vicarious negligence and Section 163-A makes no change and it applies only to innocent pedestrians or third parties but not to the negligent driver himself. Hence, the insurer desired the award to be reversed. The claimants filed cross-objections contending that the Court should have taken the age of the mother only as 40 years and not as 51 years by relying on the photographs. A wrong multiplier was, hence, applied and there was no rebuttal evidence to the claims of P.W.1 about the monthly income of the deceased. Very meagre amounts were awarded towards funeral expenses and loss of estate and even the interest granted is low. Hence, the claimants desired the balance compensation claimed by them also to be awarded. Heard Sri R. Briz Mohan Singh, learned counsel for the appellant and Sri T. Vishwarupa Chary, learned counsel for the cross-objectors. The liability of the owner and insurer to compensate and the just and adequate quantum thereof are the questions in issue herein. The earliest version in the first information report was by a person who witnessed the deceased Ahmed Khan and his Hero Honda lying by the side of the road and Ahmed Khan, thus, being found dead is no indication of the manner in which he would have died. Ex.A.2 inquest report contained the opinion of the independent mediators that from the scene of offence it appeared that the vehicle was driven negligently in a drunken state resulting in fatal injuries to the deceased. Ex.A.1 describes Ahmed Khan aged 26 years to be a driver by profession. The ages of the parents were stated in Ex.A.2 inquest report to be 60 years and 55 years respectively, which must have been noted on the information given by them at the time of the inquest. The deceased was described to be aged 26 years and to be a driver by profession in the inquest report also. While there was no eye witness to the accident, it was only a matter of presumption that the deceased might have driven the vehicle negligently in a drunken state. The inquest report also referred to the suspicion about the deceased being murdered. Exs.A.1 and A.2 could not have been suspected in any manner having arisen from independent sources and the mother as P.W.1 was unaware of any driving licence for the deceased or who was the owner of the motor cycle. P.W.1 also admitted that they did not file any document showing the age and earnings of the deceased. The deceased being a driver by profession being alleged in Exs.A.1 and A.2 and not contradicted by any other material and his age being 26 years as stated in Exs.A.1 and A.2, can be accepted and even if the minimum wages payable to a driver at about the relevant time under the Minimum Wages Act were to be taken into account, the same would have been not as low as Rs.1,500/- per month. The able bodied and healthy deceased must be striving to earn a decent income to maintain himself and his parents and the Second Schedule to the Motor Vehicles Act, 1988 applicable to cases arising under Section 163-A as herein itself presumes even a non-earning person to be earning Rs.15,000/- per annum. If the deceased was a driver by profession and must have been earning a monthly salary and daily batta, his monthly income can be presumed to be about Rs.2,500/- per month at about the relevant time and a xerox copy of the duplicate driving licence in his name has also been placed before the Court in the appeal. While an element of guess and estimate are inevitable in this regard in the absence of any definite evidence, the assessed annual income of Rs.30,000/- has to be the basis for assessment for the loss of contribution to the family. Half of such income towards the personal and living expenses of the deceased has to be deducted as per Sarla Verma and others v. Delhi Transport Corporation and another[2] in view of the deceased being a bachelor leaving the parents alone as the dependents. If so, the annual loss of contribution comes to about Rs.15,000/-. The age of the mother mentioned as 55 years in Ex.A.2 inquest report and taken as 51 years by the Tribunal cannot be disturbed, more so, when she could not have been aged 40 years had the son been 26 years by the time of the accident in the ordinary and natural course of human events. The appropriate multiplier applicable to a person aged between 51 and 55 years has to be, therefore, taken as the basis and the multiplier is 11 as per Sarla Verma and others v. Delhi Transport Corporation and another (2 supra). In addition, the claimants will also be entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of love and affection on the principle laid down by the same decision. If the claimants are otherwise entitled to compensation, they should, therefore, get a sum of Rs.1,85,000/- towards the same from the owner and insurer of the motor cycle. The ownership of the motor cycle with the 1st respondent to the claim and its subsisting insurance with the 2nd respondent to the claim are not in dispute. If Section 163-A of the Motor Vehicles Act, 1988 applies to the facts of the case, the liability of the owner and insurer probably cannot be disputed. A Division Bench of this Court in Kore Laxmi and others v. United India Insurance Co. Ltd. and others[3] was dealing with the claim of the dependents of a deceased lorry driver whose negligence was found to have caused the accident. The Division Bench with reference to Section 163-A of the Motor Vehicles Act, 1988 held that the burden of proving that the accident took place due to rash and negligent driving of the vehicle by the driver of the vehicle is no longer prerequisite for claiming compensation and also it would be suffice to claim compensation to prove that the vehicle was involved in the accident. The Division Bench observed that in fact, sub-section (2) of Section 163-A makes it clear that the claimant is not required to plead or establish the death or permanent disablement in respect of which the claim has been made due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. The Division Bench noted that the insurer resisted the claim on the ground that the accident took place due to the negligence of the driver himself who can only approach the Commissioner for Workmen’s Compensation but not the Motor Accidents Claims Tribunal. Setting aside the contrary order of the learned Single Judge, the Division Bench held that it is suffice to state that the general rule of proving rash and negligent driving to claim compensation under Motor Vehicles Act was diluted by introduction of Section 163-A and this being a welfare legislation is intended to provide financial assistance to the dependents of the person involved in a road accident and incurred inability or suffered death. They have no hesitation to hold that the dependents of the deceased person are having option either to approach the Commissioner under Workmen’s Compensation Act since the person died during the course of his employment or under Section 163-A of the Motor Vehicles Act. The decision squarely applies to the facts of the present case and is binding on this Court. Similarly National Insurance Company Ltd. v. G. Mohammed Rafiq and others[4] was a case where the deceased driver was not the owner of the motor cycle and it was concluded that he is a third party, the risk of whom was covered by the insurance policy. It was held by a learned Single Judge that even when the accident took place due to the negligence of third party driver of the motor cycle resulting in injuries or death to him, the insurer is bound to pay the compensation payable therefor because it agreed to cover the risk. Therefore, in view of the two binding precedents squarely applicable to the facts of the present case, any analogy attempted to be drawn by the appellant from the precedents not directly on the aspect or on a strained interpretation of Section 163-A and other relevant provisions cannot be accepted and the liability of both the respondents to the claim cannot be diluted. In Minu B. Mehta v. Balkrishna Ramachandra Nayan (1 supra), the Apex Court held that in the case of motor accident, the owner is only liable for negligence and on proof of vicarious liability, for the acts of his servant and proof of negligence is necessary, before the owner or insurance company could be held to be liable for the payment of compensation in a motor accident claim case. The Apex Court, however, observed that unless ideas are accepted by the Legislature and embodied in appropriate enactments, the Courts are bound to administer and give effect to the law as it exists today. It was subsequently that Section 163-A was inserted in Motor Vehicles Act, 1988 by Section 51 of the Amending Act No.54 of 1994 with effect from 14-11-1994. The provision was interpreted as an addition to the right to get compensation based on fault liability and Section 140 providing for no fault liability compensation earlier was also appropriately amended by the same amending Act by including sub-section (5) and the proviso thereto and the proviso makes it clear that the amount of compensation to be given under any other law shall be reduced from the amount of compensation payable under Section 140 or under Section 163-A. The proviso, thus, makes it clear that Section 140 and Section 163-A are independent of each other and the mere fact that Section 140 is part of Chapter X about the liability without fault in certain cases, while Section 163-A is part of Chapter XI about insurance of motor vehicles against third party risks, is no pointer to any liability under Section 163-A being again based on fault liability. That the claim under fault liability under Section 166 of the Motor Vehicles Act, 1988 is provided for in Chapter XII/Claims Tribunals itself may show that a claim under Section 163-A should be something different than claiming compensation under fault liability. Section 163-B further indicates that a person has the option to claim compensation either under Section 140 or under Section 163-A but not under both. That the claims for compensation under both the provisions are similar in nature, is, thus, indicated by Section 163-B. In fact, Section 141 of the Act is also amended by the same amending Act to clarify that the right to claim compensation under Section 140 or under Section 163-A shall be in addition to the right on the principle of fault. The distinction still maintained is about the fixed compensation under Section 140 and the expeditious determination of the same under Section 141 in contrast with the schematic compensation under Section 163-A and while the remedies under Section 140 and Section 166 can coexist with the liability to reduce the compensation under Section 140 from the compensation under Section 166, the remedies under Section 163-A and Section 166 cannot so coexist. Decisional law has made it clear that a claimant cannot pursue his remedies simultaneously under Section 163-A and Section 166 and has to choose and pursue either. Consequently, the liability of the respondents to jointly and severally compensate the claimants cannot be in doubt. In view of the distance of time for which the interest has to be paid by the respondents on the compensation awarded, the rate of interest granted at 6 per cent per annum by the Tribunal need not be disturbed. Proportionate costs on the compensation awarded, of course, shall follow suit. In the result, the appeal is dismissed without costs and the cross objections are allowed in part without costs and the award dated 17-12-2004 in O.P. No.748 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-XIII Additional Chief Judge, Fast Track Court, City Civil Court, Hyderabad is modified by awarding a compensation of Rs.1,85,000/- (Rupees one lakh and eighty five thousand only) with interest at 6 per cent per annum from the date of the petition till the date of realization and proportionate costs. The compensation shall be shared equally by both the claimants and no further directions need be given at this distance of time regarding disbursement of the compensation. _____________________ G. BHAVANI PRASAD, J Date: 18-04-2011 Note: L.R. copies to be marked. (Bo) Svv [1] 1977 AIR (SC) 1248 [2] 2009 ACJ 1298 [3] 2005 ACJ 543 [4] 2005(2) ALD (NOC 118)