IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. S.B. Civil Misc. Appeal No.1378/1999 {Smt. Pushpa Sharma Versus Brij Mohan Sharma & Others} 2. S.B. Civil Misc. Appeal No. 1474/1999 {Brij Mohan Sharma Versus Vinod Kumar sharma & Another} 3. S.B. Civil Misc. Appeal No. 1706/1999 {The Oriental Insurance Company Ltd. Versus Smt. Pushpa Sharma & Others} Date of Judgment: 8th October , 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Mathur counsel for the claimant Mr. Virendra Agarwal counsel for the Oriental Insurance Company Limited BY THE COURT: Since all the aforesaid three appeals arise out of and pertain to one judgment and award dated 18th June, 1999 rendered by the Motor Accident Claims Tribunal, Jaipur City, Jaipur, they are being disposed of by one common judgment. In appeal No. 1378/1999, the appellant Smt. Pushpa Sharma has prayed for enhancement of the amount of compensation raising it from Rs. 1,52,000/- under the award to Rs. 15,40,000/- as claimed in the claim petition. In appeal No. 1474/1999, the appellant Brij Mohan Sharma has impugned the award dated 18th June, 1999 whereby his claim against Vinod Kumar Sharma and the Oriental Insurance Company Limited has been dismissed. In appeal no. 1706/1999, the appellant - Oriental Insurance Company Limited has prayed that the impugned award dated 18th June, 1999, being based on conjectures and surmises, be quashed and set-aside. Background facts of the instant appeals are thus: That on 29th May, 1998, the appellant Smt. Pushpa Sharma along-with her husband Brij Mohan Sharma was going by Maruti Car No. RJ–23 C–1555 to visit Vaishno Devi temple. At about 5.30 AM, when they reached at GT road, Ambala Cantt, suddenly a cow emerged before the car. The driver of the car suddenly applied the brakes and with a view to avoid cow, it collided with a taxi HR O10-1749. During this accident, another taxi coming from behind also collided with the car, as a result of which the appellant Smt. Pushpa Sharma and her husband Brij Mohan who was driving Maruti Car sustained grievous injuries. The record of the lower court reveals that the appellant-claimant Smt. Pushpa Sharma filed the claim petition before the Motor Accident Claims Tribunal under Section 166 of the Motor Vehicles Act (for short 'Act'), whereas the appellant Brij Mohan Sharma filed the claim petition under Section 163A of the Act. Heard the arguments advanced by learned counsel for the appellants Smt. Pushpa Sharma and Brij Mohan Sharma as also the counsel appearing for the appellant – The Oriental Insurance Company Limited and perused the relevant material on record. The learned counsel for the appellant Brij Mohan Sharma has canvassed that his claim petition was dismissed on the ground that the accident had occurred owing to his own rash and negligent driving and thus, the claim petition was not maintainable. Learned counsel has further submitted that a bare perusal of Section 163 A of the Act reveals that nothing in this Section barred a claim petition filed by the driver of the motor vehicle, which was involved in the accident. He also argued that the question of wrongful act or negligent act never arises in a claim petition filed under Section 163 A of the Act. Hence, the claim petition was perfectly maintainable and the impugned award in respect of the claimant appellant Brij Mohan Sharma deserves to be set-aside. Learned counsel for the respondent no.2 – Oriental Insurance Company Limited (appellant in appeal no. 1706/1999), in contra, vehemently opposed the argument advanced by the learned counsel for the appellant – Brij Mohan Sharma, took me through the document Ex. 1, which is a copy of Rojnamcha of police station, Ambala Cantt District Ambala and contended that it is categorically stated in the Rojnamcha report that the accident was a vis major and none of the driver in this accident was at fault. As per the argument of learned counsel, this fact was admitted by the appellant - Brij Mohan before the police officer of Police Station Ambala Cantt, who recorded his statements on 29th May, 1998 at 10.15 AM when he was admitted in City Hospital, Ambala Cantt for his treatment. He has further submitted that there is no valid reason to disbelieve the copy of Rojnamcha report. Since negligence of the driver is not proved, the appellant Smt. Pushpa Sharma is not entitled to get any claim nor the appeal of Brij Mohan Sharma deserves to be allowed. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the copy of Rojnamcha report lodged at Police Station, Ambala Cantt, it is noticed that the appellant Brij Mohan Sharma himself admitted before the police officer that he was driving his car at a fast speed. Suddenly a cow emerged before the car and in the process of avoiding cow, his car collided with a taxi. It is clear from his statement that it was the fast speed, which became a cause of collision. Had the car been in full control of driver Brij Mohan Sharma, the car would not have collided with the taxi. Albeit, he succeeded in avoiding the cow, but could not escape from the collision with taxi. This shows that the driver was driving the car negligently. It can be said in these terms also that the driving of the driver was faulty or defective. The learned Tribunal has discussed this evidence at length and arrived at a conclusion that maruti car no.RJ-23-C-1555 collided with the taxi because of the negligent driving of Brij Mohan Sharma only. The finding with regard to holding Brij Mohan Sharma negligent in his driving does not suffer from any infirmity. This finding is just and proper and I am in full agreement with it. In view of above finding, the most crucial question springing for consideration is that as to whether the claim petition filed by the appellant Brij Mohan Sharma under Section 163 A of the Motor Vehicles Act was maintainable? Section 163-A of the Motor Vehicles Act envisages thus: “[163 – A. Special provisions as to payment of compensation on structured formuala 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. 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.]” A harmonious construction of sub- clause (1) and sub-clause (2) of Section 163 A of the act envisages two prerequisite conditions: firstly, the claimant shall not be required to plead or establish that the death or permanent disability 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 of any other person. Secondly, the income of the deceased should not exceed Rs. 40,000/- per annum. It has been held by Hon'ble Apex Court in umpteen cases that the claim petition under Section 163 A of Act is tenable only where the income of the victim is / was less than Rs. 40,000/- per annum. It is pertinent to make it clear that Section 163A was never enacted to provide relief to those who suffered in road accident not because of the negligence of another person making it use of a motor vehicle, but only on account of their own rash, negligent or impudent act resulting in death or personal injury to them. The recommendations of the Law Commission were concerned more with the victims of hit and run accident cases, where the particulars of offenders could not be ascertained. In the instant case, the appellant Brij Mohan Sharma in his claim petition had shown his income to be Rs. 13,000/- per month. It is proved from the evidence available on record that the accident in question occurred because of negligent driving of the appellant Brij Mohan Sharma himself. Albeit, the learned counsel for the appellant has shown many judgments and endeavoured to convince the court that the claim petition of Brij Mohan Sharma was maintainable under section 163 A of the Act inspite of their being Rs. 13,000/- per month income of the appellant, but the settled legal position is that in case the annual income of the victim is more than Rs. 40,000/- per annum and the accident takes place because of negligence of the driver himself, any claim petition under Section 163 A of the Act is barred. The learned Tribunal rightly held that the claim petition of the claimant appellant Brij Mohan Sharma was not maintainable and, thus, it has been rightly dismissed. I am in consonance with the finding arrived at by the learned Tribunal. Now adverting to the appeal of Smt. Pushpa Sharma, it is noticed that the learned Tribunal has awarded a total amount of Rs. 1,52,000/- as compensation to her. Learned counsel for the appellant has canvassed that Smt. Pushpa Sharma sustained the grievous injuries all over her body, especially there were fractures on her right femur bone and right leg bone. She remained admitted in hospital for quite a long time. She also got a long and continued treatment, in which about Rs. 3,00,000/- were spent. All these aspects have been proved by the statement of AW-1 Smt. Pushpa and documentary evidence viz. X-ray report (Ex.4), discharge ticket (Ex.5), injury report (Ex.6), X-ray report (Ex.7), discharge ticket of Jaipur Hospital (Ex.8) and disability certificate (Ex.137). He has further canvassed that keeping in view the nature of injuries, long treatment, money spent on long treatment, which comprises of operations of legs, disablement to the extent of 23.75%, mental agony and physical trauma, lumpsum amount of Rs. 1,52,000/- under the award seems to be on lower side and under the existing circumstances it needs to be enhanced. Though the learned counsel for the respondent – Insurance Company has opposed the enhancement of quantum of compensation, but the arguments advanced by him in this regard are not found to be tenable nor appealing. It emerges from the record that the appellant Smt. Pushpa Sharma underwent a very long and continued treatment in many hospitals. The way in which she got the treatment, it goes without saying, that a good amount of money must have been spent thereon. The mental agony and physical trauma, she suffered during the period cannot be calculated in terms of money. There is no denial to the fact that she suffered 23.73% permanent disability, which shall continue till she survives. This accident will keep on reminding her the accident forever. Hence, keeping in view all the circumstances existing on record, I deem it just and proper to enhance the amount of compensation from Rs. 1,52,000/- to Rs. 2,00,000/- and the appeal of appellant Smt. Pushpa Sharma deserves to be allowed to this extent. The main thrust of argument advanced by the learned counsel for the respondent – Oriental Insurance Company is that as per copy of Rojnamcha report of police station, Ambala Cantt, none was negligent in the driving, when the car of the appellant Brij Mohan Sharma collided with a taxi resulting into grievous and simple injuries to both Smt. Pushpa Sharma and her husband Brij Mohan Sharma, who was driving the car, then in that case neither the claim of Brij Mohan Sharma was maintainable nor Smt. Pushpa Sharma was entitled to get Rs. 1,52,000/- as compensation. He has further canvassed that the claimants have given contradictory statements and changed their stand time and again. Even the quantum of compensation as awarded by the learned tribunal is on higher side keeping in view the nature of injuries and the factual matrix of the accident. Though the arguments of learned counsel for the appellant – Insurance Company have been dealt with in earlier paras, yet at the cost of repetition, I feel inclined to hold that the grounds taken in appeal do not contain any pith and substance. The learned counsel has failed to prove as to how the amount of Rs. 1,52,000/- under award is excessive or on higher side. Thus, with regard to Smt. Pushpa Sharma, the appeal deserves to be dismissed. In view of the reasons stated above, the appeal no. 1474/1999 filed by the appellant Brij Mohan Sharma and appeal no. 1706/1999 filed by the appellant Oriental Insurance Company being bereft of merits stand dismissed. The appeal no. 1378/1999 filed by appellant Smt. Pushpa Sharma is partly allowed. The amount of Rs. 1,52,000/- as compensation under award passed in favour of the appellant Smt. Pushpa Sharma and against respondent no.2 Vinod Kumar Sharma and respondent no.3 Oriental Insurance Company Limited is enhanced to the amount of Rs. 2,00,000/- as compensation and thus, the award is modified to this extent. The rest of the terms of the impugned award dated 18th June, 1999 shall remain unchanged. No order as to costs. (MAHESH BHAGWATI), J. DK IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. S.B. Civil Misc. Appeal No.1378/1999 {Smt. Pushpa Sharma Versus Brij Mohan Sharma & Others} 2. S.B. Civil Misc. Appeal No. 1474/1999 {Brij Mohan Sharma Versus Vinod Kumar sharma & Another} 3. S.B. Civil Misc. Appeal No. 1706/1999 {The Oriental Insurance Company Ltd. Versus Smt. Pushpa Sharma & Others} Date of Order :: 8th October , 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Mathur counsel for the claimant Mr. Virendra Agarwal counsel for the Oriental Insurance Company Limited BY THE COURT: For these reasons, the appeal No. 1378/1999 filed by appellant Smt. Pushpa Sharma is partly allowed and the appeal no. 1474/1999 filed by the appellant Brij Mohan Sharma and appeal no. 1706/1999 filed by the appellant Oriental Insurance Company being bereft of merits stand dismissed. (MAHESH BHAGWATI), J. DK