IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 154 of 2006 Judgment reserved on: 7.12.2007 Date of Decision: January 11, 2008. ________________________________________________________________ Smt. Kamla Devi … Petitioner Versus Ram Kishan & ors. … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner : Mr.R.K.Bawa, Sr. Advocate with Mr.Daljit Singh, Advocate. For the Respondent(s) : Mr. B.M. Chauhan, Advocate, for Respondents 3 & 4. ________________________________________________________________ Deepak Gupta, J The following short but interesting legal question arises in this case:- Whether a party who has filed a claim petition under Section 166 of the Motor Vehicles Act and has also filed a petition under Section 140 of the Motor Vehicles Act and an award has been passed in its favour under Section 140 can be permitted to convert the original petition filed under Section 166 to a petition under Section 163-A of the Motor Vehicles Act? - 2 - Factual Matrix. Petitioner Smt. Kamla Devi filed a petition under Section 166 of the Motor Vehicles Act ( hereinafter referred to as the Act) claiming compensation on account of the death of her son Sanjesh Kumar on 3.12.1996 in a motor vehicle accident which took place on 28.11.1996. In the petition, it was alleged that on 28.11.1996 the vehicle bearing registration No.HR-30- 3355 was being driven by the deceased Sanjesh Kumar. This truck was hit by truck No.DIG-1133 which was being driven in a rash and negligent manner. As a result of the accident, the deceased suffered injuries and died in the accident. One Shri Ram Krishan respondent No.1 was alleged to be the driver of vehicle No.DIG-1133. It was further prayed that the name of the owner be disclosed by the respondents. The New India Assurance Company was also made party- respondent in this case. During the course of the petition, the name of the owner was first disclosed to be M/s Bansal Roadways Private Limited, a proprietorship concern owned by Shri Sanjay Bansal. The owner of the vehicle was duly impleaded as party respondent No.2. Reply on behalf of the owner was filed, in which it was stated that Bansal Roadways was in fact the owner of truck No.HR-30-3355 driven - 3 - by the deceased. The Insurance Company took up the plea that the truck No. DIG-1133 was not insured with it. The New India Assurance Company filed an application under Order 11 rule 12 read with Section 151 CPC for a direction to respondent No.2 to supply the insurance particulars. Despite best efforts, the particulars of the insurance of the vehicle No.DIG-1133 could not be ascertained. In the meantime, the court passed an order on the petition under Section 140 of the Act on 2.6.1999 and awarded a sum of Rs. 50,000/- in favour of the petitioner- claimant Smt. Kamla Devi. The awarded amount was deposited by the insurance company. The petitioner thereafter filed an application for deleting the name of the driver which application was allowed. The petitioner then filed another application that in fact vehicle No.DIG-1133 was owned by Shri Krishan Lal son of Chaman Lal. This application was also allowed and the said Krishan Lal was ordered to be impleaded as a party. It appears that Krishan Lal who had been impleaded as owner could not be served and thereafter the petitioner filed an application under Order 6 rule 17 read with Section 151 CPC praying that she may be permitted to amend the petition and convert the same from one under Section 166 to one under Section 163-A of the - 4 - Act. This petition has been rejected and hence the present petition under Article 227 of the Constitution of India. Legal Provisions To appreciate the legal aspect, it would be pertinent to refer to Sections 140, 163-A, 163-B and 166 of the Motor Vehicles Act:- “140. Liability to pay compensation in certain cases on the principle of no fault – (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2). The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [fifty thousand rupees] and the amount of compensation payable under that sub section in respect of the permanent disablement of any person shall be a fixed sum of [twenty-five thousand rupees]. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. - 5 - [(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force. Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163-A]. 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 purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 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.] 163-B. Option to file claim in certain cases. – Where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both. 166. Application for compensation – (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or - 6 - (c ) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed; Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] 2[ ****] [(4). The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.” The whole dispute revolves around the interpretation of Section 163-B which provides that where a person is entitled to claim compensation both under Sections 140 and 163-A of the Act, he shall file the petition under either of the said sections and not under both. - 7 - I have heard Shri R.K.Bawa, learned senior counsel for the petitioner who has strenuously contended that the Motor Vehicles Act being a beneficial piece of legislation should be interpreted in such a manner so as to give benefit to the claimant. He has relied upon certain judgments of the Apex Court. On the other hand, Shri B.M. Chauhan, learned counsel for the New India Assurance Company contends that Section 163-B is absolutely clear and once the option to file claim is exercised and claim under Section 140 is filed and an award is passed, the petitioner cannot be permitted to convert the petition to one under Section 163-A of the Act. Case Law. The apex Court in Kaushnuma Begam (Smt) and others v. New India Assurance Company & others, (2001) 2 SCC 9, held as follows:- “20. “No fault liability” envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MVA Act permit that compensation - 8 - paid under “no fault liability” can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of he exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.” On the basis of the above observations, Shri R.K.Bawa contends that the petitioner is entitled to convert his petition. This judgment does not at all deal with the question whether a claim filed under Section 166 can be converted to one under Section 163-A after award under Section 140 has been passed. In my considered opinion, this decision has no applicability to the present case. The apex Court in Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd. Baroda, 2004 (5) SCC 385 was dealing with the provisions of Section 140, 163-A, 163-B and 166 of the Act. In para 38, the apex Court held as follows:- “38. It is true that in terms of Section 163-B of the Act an option had been provided for so as to enable a person to lay a claim for compensation either under Section 140 or Section 163-A and not under both but having regard to the scheme of the Act, the same was not necessary.” - 9 - It is urged by Shri Bawa that since the Apex Court held that Section 163-B was not necessary, therefore, it should not debar him from converting his petition into one under Section 163-A of the Act. This argument, however, does not take into consideration the subsequent observations of the apex Court in paras 41, 42, 43, 52 and 53 of the judgment wherein the apex Court held as follows:- “41. Section 140 of the Act dealt with interim compensation but by inserting Section 163-A, Parliament intended to provide for the making of an award consisting of a predetermined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. The amendment was, thus, a deviation from the common law liability under the law of torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victim in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under Section 166 of the Act. 42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs.40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his - 10 - income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1, which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle. 43. The submission of learned counsel appearing on behalf of the appellants to the effect that Sections 140 and 163-A provide for similar scheme cannot be accepted for more than one reason. Payment of the amount in terms of Section 140 of the Act is ad hoc in nature. A claim made thereunder, as has been noticed hereinbefore, 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. xxx xxx xxx xxx xxx xxxx 52. It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti - 11 - cautela so as to remove any misconception in the minds of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims both under Section 163- A and Section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity. 53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby. (See: Regional Director, ESI Corpn. V. Ramanuja Match Industries.).” Though the Apex Court dealt with the provisons of Sections 140, 163-A, 163-B and 166 in great detail and explained the provisions and the raison d’etre behind them, the question of conversion was not strictly dealt with by the apex Court in the aforesaid case. Reference may now be made to certain decisions of the various High Courts in this regard. The High Court of Bombay in United India Insurance Co. Ltd. v. Janabai and others, 2003 ACJ 350, held as follows :- - 12 - “The wording of section 163-B is very clear. A person cannot claim compensation under Sections 140 and 163-A of the Motor Vehicles Act, 1988. The choice is given to the person to claim compensation under either of sections and not both. In the case in hand, the learned Tribunal has awarded compensation under section 140 as well as Section 163-A of the Motor Vehicles Act, 1988. The award passed by the Tribunal under Section 163-A of the Act is, therefore, contrary to the statutory provisions. Under the circumstances, the award cannot be sustained in law. The award passed by the Tribunal suffers from illegality and, therefore, the award passed by the Tribunal is liable to be quashed and set aside.” The High Court of Karnataka in Jayanthi S.Shetty v. P. Shivaji Shetty and another, 2003 ACJ 809, held that once an award under Section 140 has been passed and claimant has got compensation, the claimant has no right to convert the original petition to one under Section 163-A. The Court held as follows:- “18. Unfortunately, in the instant case, the claimant having opted to receive compensation under Section 140 of the Act, the possibility of claiming compensation under Section 163-A of the Act was foreclosed because of provisions of section 163-B. The resultant position is that in the present appeal arising out of a claim application filed under Section 166 of the Act, the claimant-appellant is not in a position to substantiate or justify the quantum of compensation based on any material on record. Enhancement of compensation could be allowed only based on material on record, particularly in an appeal. The incongruous situation is that if the application - 13 - under section140 of the Act has to be ignored and the original claim is to be treated as one under Section 163-A of the Act, the appellant may lose even the compensation of Rs. 50,000/- that has been awarded by the Tribunal. In that event, the appellant becomes entitled for any compensation only if the award passed by the Tribunal is set aside in this appeal and the matter remanded to the Tribunal for letting in of the evidence on behalf of the claimant. 19. We have given our anxious consideration to these aspects of the matter. In so far as the provisions of sections 163-A and 163-B of the Act are concerned though these provisions were introduced by way of section 51 of Amendment Act 54 of 1994 with effect from 14.11.1994 and the said Amending Act came to be repealed, subsequently the amending provisions have been incorporated in the main Act by the very repealed Act and the repealing Act also states that all actions that had been taken earlier as per the amended provisions are saved. Therefore, repeal of section 163-A with effect from 3.9.2001 is of no consequence inasmuch as these provisions find a place in the main Act itself and continues to remain on the statute book. At the same time the provisions of section 163-B also continue to operate and the embargo placed by section 163-B also continues to apply in determining a claim application under the Act. But as noticed earlier, when the statute itself places an embargo in respect of a claim which is justified under Section 140 of the Act that no claim can be entertained under the provisions of section 163-A, the only option to the claimants is to proceed under either of the two provisions and not one after another or simultaneously under both provisions. The compensation payable under section 140 of the Act having been paid to the claimants and that option having been exhausted, the respondent No.2, insurance company is justified in opposing the application for amendment to permit the appellant to convert the original claim petition to be as one under Section 163-A instead of - 14 - section 166 as had been filed and praying for rejection of the application.” The High Court of Gujarat in Narshiji Nagaji Majirana v. Mangilal Amturam Bishnoi and others, 2005 ACJ 19, held as follows:- “ x x x x x x x x x x x. Hence, in absence of any period of limitation, there could be no objection to the claimant making an application under section 163-A of the Act even after making an application under Section 140 of the Act, if the accident took place on or after 14.11.1994. The structured formula compensation is claimed on the basis of income of the injured/deceased up to Rs. 40,000/- per annum and so long as no order is passed on an application under Section 140 of the Act.” (Emphasis supplied) The Gujarat High Court held that there is no bar to conversion of a petition filed under Section 166 to a petition under Section 163-A but the same cannot be permitted after an order has been passed on the application under Section 140 of the Act. The Madhya Pradesh High Court in Guddibai and others v. Mishrilal Ahirwar and another 2005 ACJ 253 held that the claimants who had applied for and obtained benefit under Section 140 could not convert the petition under Section 166 of the Act to one under Section 163-A of the Act. - 15 - The Kerala High Court in Sherifa Beevi v. Komu, 2007 ACJ 1185 was dealing with a converse situation and allowed the petition under Section 163-A to be converted to one under Sections 166 and 140 of the Act. No order under Section 163-A had been passed and it was in these circumstances that the Court held that the petition could be converted. The Motor Vehicles Act, 1939 was enacted to replace the Fatal Accidents Act. It provided a quicker remedy to victims of accident and their next of kin to claim compensation. There was no provision under the Act for grant of compensation when the tortfeasor was not at fault. The observations of the Apex Court in para 52 of Deepal Girishbhai Soni’s case supra make it abundantly clear that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability. Section 163-A which was brought in by amendment in the Motor Vehicles Act, 1988 provides for compensation on no fault liability. The legislature in its wisdom also enacted Section 140 which also provides for grant of compensation without pleading or proving negligence. The difference between 140 and 163-A is that Section