FA/3256/2008 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3256 of 2008 With CIVIL APPLICATION No. 8605 of 2008 In FIRST APPEAL No. 3256 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOd Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= NEW INDIA ASSURANCE CO LTD - Appellant(s) Versus DEVRAJ HARIBHAI GADHVI & 1 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 25/07/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Hasmukh Thakkar FA/3256/2008 2/25 JUDGMENT appearing on behalf of appellant – New India Assurance Company Limited. 2. The appellant has challenged the award passed by Motor Accident Claims Tribunal (Aux.I), Fast Track Court No.1, Kachchh at Bhuj in Motor Accident Claim Petition No.473 of 2004 dated 30th November 2007. The Claims Tribunal has awarded compensation of Rs.3,40,000/- in favour of claimants with 9% interest. The claimants have filed an application for compensation under the provisions of Section 163A of the Motor Vehicles Act claiming compensation of Rs.6,57,884/-. 3. Learned advocate Mr. Thakkar raised contention before this Court that admittedly monthly salary of respondent No.1 claimant was Rs.6,314/-, therefore, it comes to more than Rs.40,000/- per annum (Rs.75,768/-). Therefore, application made under Section 163A of the Motor Vehicles Act is not maintainable and Tribunal has no jurisdiction to decide it. He also submitted that injuries suffered by respondent No.1 claimant was not on account of any vehicular accident, but, it was an intentional act of driver of the vehicle which is reflected in the FIR which was filed under Section 302, 307, 332, 333 and 120-B of the Indian Penal Code before Bhachau Police Station and another FIR was filed under Section 307, 427 and 114 of the Indian Penal Code before Rahpar Police Station. Therefore, Claims before Tribunal is not maintainable. He further FA/3256/2008 3/25 JUDGMENT submitted that in complaint filed by Shri D.R. Agravat and his police party, name of claimant is not mentioned as to injuries received by him. Therefore, injuries received by respondent No.1 claimant is not on account of accident but a result of intentional act of driver of the vehicle. He also submitted that there is no loss of income as service of the respondent claimant was remained continue and multiplier should not have to give beyond five and there is no medical certificate produced by the claimant for permanent partial disablement determining 50% disability. The Tribunal has committed an error in awarding medical expenses in favour of claimant. He further submitted that permission under Section 170 of the Act has been granted by the Tribunal. Except that, no other contention was raised by learned advocate Mr. Thakkar in the present appeal before this Court. 4. I have considered the submissions made by learned advocate Mr. Thakkar. The claimant has filed an application under Section 163A of the M.V. Act to get the compensation of Rs.6,57,884/- inter alia contending that on 15th December 2003, he, along with the deceased Jaydevan Sagardan Gadhvi and others were on their duty at Bhachau Police Station. At about 23-45 at night, ASI of Bhachau Polist Station viz., Manjibhai Dhanjibhai Dabhi received message that Tata Sumo No.GJ-6-JJ-2189 and Mahindra Camper No.GJ-12-W- 4963 and Mahindra Pick-up coming with loaded English wine having likely to be proceeded towards Rahpar as FA/3256/2008 4/25 JUDGMENT to unload the English wine. Therefore, police party left for necessary action in 'D' Mobile and necessary search was carried out in thick bushes near Piludi Project situated to the est of Village Kunjisar, but, no one was found. Therefore, police party had come on the main road and reached on the spot little away from the village Kunjisar. At that time, Mahindra Camper vehicle had proceeded towards Bhachau in excessive speed. Therefore, the striking force police who were ahead of the police party were informed and little later, the police party was informed. The striking force had chased the Mahindra Camper as said Mahindra Camper had returned back and proceeded towards police party side. At that time, the respondent claimant and another police were near village Kunjisar and they have stopped the police vehicle and got down from the vehicle and were standing near the road to stop Mahindra Camper and to catch hold of the stock of English wine. At about 00-45 hours on 16th December 2003, the Mahindra Camper No.GJ-12-W-4963 had come towards police party side. At that occasion, the police party made attempt to stop the said vehicle, but, vehicle was not stopped and with a view to run away with the stock of costly English wine and to save the bootleggers from the clutches of law, the driver of Mahindra Camper drove the vehicle with great speed and in that process, it dashed and collied with the claimant and deceased police constable Jaydevbhai Sagardan Gadhvi and Prangar Shamgar due to that all of them fell down on the road and sustained serious injuries, due to FA/3256/2008 5/25 JUDGMENT which, Shri Jaydevan Sagardan and Shri Prangar Shamgar died and claimant got serious injuries, for which, he was shifted to Rajkot and left leg below knee was amputated and due to that he has become permanent partial disability as per Schedule I (Part II) of the Workmen's Compensation Act, 1923. There is 100% loss to him and to spent huge amount towards medical treatment as well as lost income during such treatment. He was serving as police personnel in Bhachau Police Station and was getting Rs.6,314/- permanent salary and claimant is aged about 38 years. Therefore, total compensation of Rs.6,57,884/- on different heads claimed by claimant. The insurance company has filed reply Exh.24 raised all the contentions which referred as above as a submission of learned advocate Mr. Thakkar. The issues were framed by Tribunal and Tribunal has considered the evidence on record. The Tribunal has considered the provisions of Section 163A of the Motor Vehicles Act and proviso from 163A is also considered by the Tribunal. The copy of RC Book of the vehicle Mahindra Camper No.GJ-12-W-4963, where, it was found that cover note at Mark 20 bears Engine Number and Chassis Number which are tallied with given numbers as given by RTO at Exh.44 and RC Book at Exh.45. No doubt, Number of vehicle is not mentioned in the cover note, but, considering the Exh.44 and Exh.45, coupled with the cover note at Mark 20/1, it was clearly found that the cover note pertains to vehicle No.GJ-12-W-4963 which has been said to be used for injury to the claimant. Therefore, Tribunal has come FA/3256/2008 6/25 JUDGMENT to conclusion that injuries is caused to the claimant by using the motor vehicle on public place. The Tribunal has discussed the contention raised by learned advocate Mr. Thakkar in its award. The Tribunal has considered for amputation of the left leg which is lost of 80% as per Schedule I (Part II) of the Workmen's Compensation Act. The relevant discussions are made in Para 11, 12, 13 and 14. Therefore, the same are quoted as under : “11. Against this Ld. advocate Mr. Buch has submitted in his written argument that in the present case there are tow FIR filed at Exh.26 and 31 which are filed in two separate police stations namely Bhachau and Rahpar for the offence punishable under Sec.302, 307, etc., and there is no FIR filed for the offence of accident provided under IPC. According to him, this is a case of murder or attempt to murder or a case following under the provisions of bodily injury to the present applicant with an intention and the word “accident” does not include the intention. According to him as the FIR has been lodged for murder or attempt to murder, it cannot be treated as an accident within the meaning of M.V. Act and therefore, there is no question of granting any compensation under the provisions of Sec.163A of the M.V. Act. He has also submitted that the applicant has admitted that incident is not of an accident and therefore also he cannot get any amount of compensation. According to him in FA/3256/2008 7/25 JUDGMENT affidavit at Exh.18, the applicant has clarified and pleaded more income than the one admissible under structured formula and during the course of arguments the applicant has passed a purshis for calculation of his income at Rs.40,000/- p.a. which cannot be permitted to be treated for awarding compensation under Sec.163A of the M.V. Act. He has also contended that interest cannot be awarded more than 6% p.a. He has also submitted that the applicant has failed to prove necessary ingredients of the provisions of Sec.163A of the M.V. Act and therefore, insurance company may be exonerated. He has alternatively submitted that if it is held that the insurance company is liable then necessary order may be passed to recover the said amount from owner of the vehicle. He has prayed to pass necessary order. 12. On perusal of the decision reported in 2007(1) GLH 171, (supra) it is found that in that case the applicant filed an application under Sec.163A of the M.V. Act for death of one pillion rider on account of her throat being cut out by kite thread while her father was driving tow wheeler. In that matter also the insurance company taken a plea that accident did not arise on account of use of motor vehicle. But, that contention of the insurance company has been rejected by the Hon'ble High Court on relying on the decision of the Hon'ble Supreme Court in the case of Rita Devi V/s. New India Assurance FA/3256/2008 8/25 JUDGMENT Co. Ltd., reported in 2000 (2) GLR 1729 (SC). It also appears from the said decision that in the case of Rita Devi V/s. New India Assurance Co. Ltd., (supra), an Auto Rickshaw driver was murdered by the passengers for stealing Auto Rickshaw. In that matter the Hon'ble Supreme Court has held that the act was done during the use of motor vehicle and therefore, the applicant was entitled to get compensation on that basis. The Hon'ble High Court has also upheld the decision of the Tribunal awarding compensation to the applicant namely R.S. Vora. 13. Now, on perusal of the evidence on records, it transpires that the applicant has categorically submitted the same facts in his affidavit at Exh.18, which are narrated in the claim petition and has stated that he has sustained serious injuries due to the negligent driving of the driver of the offending vehicle No.GJ-12-W-4963. He has also submitted that due to injury he has been given treatment at Bhachau and thereafter at Rajkot and his leg has been amputated. According to him at the time of accident his age was 38 years and he was serving in police department and was getting monthly salary of Rs.6,314/-. He has also stated that he has spent Rs.45,000/- for artificial limb. He has also stated that he is B.A. According to him, he might have passed departmental examination and could have get promotion, but due to the FA/3256/2008 9/25 JUDGMENT vehicular accident, he has lost all these opportunities. He has been throughly cross examined on behalf of the insurance company. Wherein, he has stated that at present he is serving in Mundra Police Station and his service is continuous one. He has stated that he is not in a position to say whether the vehicle No.GJ-12-W-4963 was drove on them with intention to kill or not. He has also stated that the FIR of incident was lodged by ASI Shri Manjibhai. He has admitted that complaint was not filed by Shri D.R. Agravat. He has shown his ignorance that tow FIR have been lodges in Bhachau and Rahpar Police Station regarding his injury. He has also sown his ignorance as to whether Charge-sheet for offence punishable under Sec.302 and 307 has been filed on the basis of the FIR of the said incident. He has stated that police has recorded his statement and he has been shown as witness in the Charge-sheet and he has read that statement. He has admitted that he has not narrated in that statement that there was vehicular accident, but he has stated that he has narrated that he has sustained injury due to the vehicle. He has admitted that the medical expenses has been borne by the Govt. for the alleged incident and he has received amount from the Govt. as per Govt. rules. He has denied the suggestion that the alleged accident was not of vehicular accident and yet he has filed false application for compensation and he is telling lie for getting huge amount of FA/3256/2008 10/25 JUDGMENT compensation. 14. Now, on perusal of the documentary evidence on records, it appears that FIR has been lodged at Bhachau Police Station for the offence punishable under Sec.302, 307, 332, 33 and 120B of IPC on 16.12.03 against the driver of Mahindra Camper and two other persons by ASI Manjibhai Dhanji Dabhi. Wherein, death of two persons and injury to the present applicant has been narrated. It also reveals from Exh.26 that the said offence has been registered as I-C.R. No.111/03. On perusal of Exh.31 which is a copy of FIR filed in Rahpar Police Station and which is registered as I-C.R. No.112/03 on 16.12.2003 at about 17:15 by one Mr. D.R. Agravat, PSI, LCB, Bhuj against several persons for the offence punishable under Sec.307, 427 and 114 of IPC. On perusal of the FIR it appears that there is reference of FIR of Bhachau Police Station of I-C.R. No.111/03. According to the second FIR, the complainant D.R. Agravat was in search of Mahindra Camper which was used as per the FIR lodged at Bhachau and during that such period the same vehicle has tried to commit the same offence against the complainant Shri D.R. Agravat and his police party. Of course, there is no mention of the name of the present applicant as to injury to him. But on reading both the FIR minutely, it is clearly found that in the second FIR which is filed by Shri D.R. Agravat, the mention of the FA/3256/2008 11/25 JUDGMENT present claimant is in respect of the First FIR filed in Bhachau Police Station. Therefore, there is nothing strange in both the FIR. It also reveals from the medical certificate produced in this matter at Exh.32, that the applicant has sustained serious injuries and he has been amputated and he is physically handicapped by left leg. It also reveals from Exh.33 that he has taken treatment for the injuries sustained by him due to the wrongful act of the driver of the Mahindra Camper. At this juncture, it is required to be observed that under Sec.163A of the M.V. Act the applicant is not required to prove any negligence on the part of the driver or owner of the vehicle. It is worthwhile to reproduce Sec.163A to appreciate this point. Sec.163A – 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. FA/3256/2008 12/25 JUDGMENT Explanation – For the purpose of this sub-section, “permanent disablement” 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 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.“ 5. In view of aforesaid discussion made by Tribunal, the contention raised by learned advocate Mr. Thakkar cannot be accepted, because, if the claimant is earning more than Rs.40,000/- in a year, then, he has right to reduce his income by filing purshis to convert the case from Section 166 to Section 163A as per view taken by Division Bench of this Court in case of Oriental Insurance Company Limited v. Chintharbhai Sibabhai and Another reported in 2004 (3) GJR 2018. The relevant discussion in Para FA/3256/2008 13/25 JUDGMENT 9 is quoted as under : “9. Learned Advocate Ms.Megha Jani has raised a contention that the Insurance Company is not given a reasonable opportunity to cross examine the claimants with regard to the income of the deceased and that the application under Section 163-A has been decided by way of interim compensation without there being any evidence of income of the deceased. The Insurance Company has raised certain contention before the Tribunal in the written statement at Exh.175. The Tribunal has examined this question as to whether the claimants can be prevented from filing application for interim compensation under Section 163-A of the Act or not, if they are entitled to, otherwise. In light of the facts, the Tribunal has considered the approach of the claim Tribunal in such matter which was required to be clarified. The Motor Vehicles Act, 1988 is a benevolent Legislation conferring powers on the Claims Tribunal to award "just" compensation when a motor accident takes place. Section 163- A was introduced in the Act by an amendment of 1994. If the said provision is seen in proper perspective, Section 163-A confers a right on accident victims to claim compensation as per the Second Schedule. According to the provisions made in the Act, Section 158(6) provides that in case FA/3256/2008 14/25 JUDGMENT of accident involving death or bodily injury to any person, the Officer in-charge of a Police Station shall forward a copy of any information regarding such an accident within 30 days from the date of recording of the information. Section 166(4) of the Act provides that the Claims Tribunal shall treat any report forwarded to it under Section 158(6) as an application for compensation under this Act. Therefore, even if the present application at Exh.172 was not filed by the claimants for compensation, the Tribunal was empowered to treat the report of the accident under Section 158(6) of the Act as an application for compensation and proceed suo motu to determine the amount of compensation payable to the victims. The Tribunal, in such a situation, award compensation under Section 163-A or under Section 166 of the Act. In such situation, the approach of the Tribunal has been examined by this Court and indicated in the judgment in the case of Ramdevsingh v. Hansrajbhai, reported in 1999 (1) GLR 631. In paragraph 45 of the said judgment, this Court has held that a Claims Tribunal can suo motu consider the matter for grant of interim compensation to the claimants under Section 163-A of the Act on receipt of report of Police under Section 158(6) of the Act. In respect to application for interim compensation under Section 140 of the Act, this Court has also considered the same FA/3256/2008 15/25 JUDGMENT aspect in the case of New India Assurance Co. v. Minor Sanjay Vajubhai, reported in 1999(1) GLR 403 wherein this Court has held that it is the legal obligation of the Tribunal to suo motu consider the matter for grant of interim compensation. This principle would apply with equal force to powers of the Tribunal to determine the compensation which the claimants are entitled to under Section 163-A of the Act. This being the legal position, the Tribunal is empowered to determine the compensation which the claimants are entitled to under Section 163-A of the Act at any stage of the proceedings and even without any application by the claimants. On the contrary, it was the duty of the Tribunal to proceed on its own to determine the interim compensation under Section 163-A when the said provision is found applicable.“ 6. Similar view has been taken by learned Single Judge in case of Narshiji Nagaji Majirana v. Mangilal Amturam Bishnoi and Others reported in 2004(1) GLR 875. The relevant Para 7, 8, 8/1 to 8/3 are quoted as under : “7. Coming to the first submission, it is true that the claimant cannot get compensation both under Section 166/168 of the Act and also under Section 163-A of the Act. FA/3256/2008 16/25 JUDGMENT Under Section 166/168 of the Act, the claimant is entitled to claim "just" compensation from the opponents on "fault liability" principle, that is, the claimant will have to prove negligence on the part of the driver of the offending vehicle and after doing so, the claimant will have to prove his income and loss of earning capacity in case of an injured claimant or loss of dependency benefit and loss to the estate in case the claimants are heirs of the deceased victim. Section 163-A, on the other hand, does away with the requirement of proving or even pleading negligence of the driver of the offending vehicle and as far as compensation is concerned, once the age and income of the deceased are shown, the Legislature has provided a structured formula for determination of compensation and no other evidence is required to be led and no arguments are required to be advanced about, additions to be made or the deductions to be made from the income or the multiplier to be adopted, as all the additions/deductions and multiplier to be applied are provided in the Schedule itself. The object with which Section 163-A has been inserted and the non-obstante clause with which sub-section (1) of Section 163-A commences clearly indicate FA/3256/2008 17/25 JUDGMENT that the Legislature did not intend to prevent the claimant from getting compensation as per the structured formula merely because in his original claim petition he had prayed for compensation on the basis of "fault liability" principle. There is no prohibition in any provision of the Motor Vehicles Act, 1988 against the claimant praying for compensation as per the structured formula after his having filed a claim petition under Section 166/168 of the Act. 8. The following decisions have already taken the above view and this Court would like to follow the same:- 8.1 In Oriental Insurance Co. Ltd. vs. Chintharbhai Sibabhai, 2003 (1) GLH 394, a Division Bench of this Court reviewed the statutory provisions and the case law on the subject and held that the Tribunal is empowered to determine the compensation which the claimants are entitled to under Section 163-A of the Act at any stage of the proceedings. However, in view of the Scheme of the Act as explained in the aforesaid decision of the Apex Court in Hansrajbhai's case (supra), the claimant has the option of invoking Section 163-A of the Act in alternative to determination of compensation under Section 168 of the Act. There is nothing in the provisions of the Act to prevent a claimant from invoking the FA/3256/2008 18/25 JUDGMENT provisions of Section 163-A of the Act after filing application for compensation under Section 166 read with Section 168 of the Act. 8.2 In Oriental Insurance Co. Ltd. vs. Vinodkumar Jaysukhbhai