W TIffi^WmT F fflGH COTTRT OF JTTDTCATURE AT BILASPUR M.A.No.l!.!.?. OF 2009 (APPEALVATJTRDATRsjMOOQB IPPEAL UNDER_SECTTON 1S73 OF THE MOTQR VEfflCLES ACT, 1988. s> APPELANT (NON- APPLICANT N0.2) c .......^^^ ^;':.'.'..%^ / RRSPONDENTS <APPLICANT) (NON-APPLICANT N0.1) ; SR. Divisional Manager^ The New India Assurance Company Limited, Divisional-Office, Transport Nagar, Korba, Tah. & Distt-Korba(CG) VERSUS :l./Kaljeet Singh, S/0- Succha Singh, aged -30 years, R/0-Power House Road Korba, Tah. & Distt. Korba (CG) •^. Mahendra Kumar Nathani, / S/o-Shri Sheetal Das / Nathani, R/0 - M.V. Market, Bilaspur, Tah. 8& Distt.- Bilaspur(C^<^9 ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (QNo. 1115/2009 APPBLLANT I^SPONDmiTS Sr. Divisiohal Manager, the New India Assurance Company Limited Versus Kaljeet Singh and another SB: Hon. Shri N.K. Agarwal, J r PRESENT:- Shri Dashrath Gupta, Advocate, for appellant. ORAL ORDER (3-3-2011) 1. Heard on admission. 2. The instant appeal has been directed by the appellant/Insurance Company against the award dated 25-2-2009 passed by the IInd Additional Motor Accident Claims Tribunal, Korba in Claim Case No. 75/2006 whereby and whereunder an amount of Rs. l,90,p00./- has been awarded in favour of the clairaant holding the appellant/Insurance Company liable for its payment. 3. Brief facts of the case are that as per claimant, claimant Kaljeet Singh was driver of the bus bearing registration No. CG 10 ZA 0235. On 9-7-2002, the claimant was driving the bus in normal speed and was going from Bilaspur to Korba but due to failure of break, it dashed a tree. In the accident, driver of the bus Kaljeet Singh received injuries. He filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (briefly 'the Act') claiming Rs. 11,90,000/- as compensation for the injuries sustained in the accident. * 4. Learned Tribunal on a close scrutiny of the evidence led, the material placed and the submissions made by the parties awarded Rs. 1,90,000/- in favour of the /f\ .,^'TJF^ j |^|pa|ls/ 6. 7. claimant and as against the respondent/Insurance Company and ownerjointly and severally. Shri Dashrath Gupta, learned counsel for the appellant would submit, since the driver himself was negligent, therefore, petition under Section 163- A of the Act is not maintainable. He would further submit, although the income ofthe claimant assessed by the Tribunal is less than Rs. 40,000/- but the income pleaded by the claimant was more than Rs. 40,000/- per year and, therefore, even on this count, as the petition under Section 163-A of the Act is not maintainable, the award passed by learned Tribunal deserves to be set aside. We have heard learned counsel for the appellant. In order to appreciate the first contention regarding maintainability of the claim petition under Section 163-A of the Act by a person who himself was negligent, it would be appropriate to reproduce Section 163-A of the Act which reads thus: f€<<163A. Special provisions as to payment of covnpensation on structured formula basis. 1[163A. Special prouisions as to payment of compensation on structured formula foaszs. (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 Uable to pay in the case ofdeath or permanent disablement due to accident arising out ofthe use ofmotor 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 disabilitylf 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 "^iyy'^ ,1 ^^^;" ^ J i~. "^,.r/./ ^f^ 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." 8. Section 163-A of the Act was brought into the Motor Vehicles Act, 1988 by Act No. 54/1994 by way of a social security scheme to provide for a new predetermined structured formula for payment of compensation to the road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in the said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terins whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. The above provision has been analysed in case of Deepal Girishbhai Soni -v- United India Insurance Co. Ltd. reported in 2004(5) SCC 385, in which Hon'ble Supreme Court has held in para 42 and 66 as under :- "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 income but also the other factors relevant therefor. 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 yf^\ Jfe^l ^SVWlSiSW^ 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 column Nos. 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a coinprehensive 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. 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 the 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 ,i;>:<i¥^s;fe,..te^ ^'^^ . "^. i-kgy* l l~!s,,^ir -^^^'r •' the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of.9? 9. In view of the law laid down by the Hon'ble Apex Court in the above referred case, it would be crystal clear that Section 163-A of the Act covers the cases where even negligence is on the part of the victim or the claimant. It is by way of an exception to Section 166 of the Act and the concept of social justice has been duly taken care of. 10. Therefore, the claim petition under Section 163-A of the Act is maintainable even in case where the negligence is on the part ofthe claimant. 11. The second contention raised by Shri Gupta, learned counsel for the Insurance Company that the income assessed by learned Tribunal is more that Rs. 40,000/- per annum and, therefore the claim under Section 163-A of the Act is not maintainable is also sans substance. The income assessed by the Tribunal is Rs. 36,984/- per annum which is well within the limits of Rs. 40,000/- per annum. 12. In view of the above, I do not find any substance in the instant appeal. The same deserves to be and is hereby dismissed at admission stage. 13. No order as to costs. Sd/- N.K. Agrawal Judge