*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +M.A.C.M.A.No.643 of 2008 % 06-07-2010 #The United India Insurance Company Limited ….Appellant/Respondent No.2 Vs. $ Gousiya Begum and others. …. Respondents !Counsel for the Appellant: Sri A.Rama Krishna Reddy Counsel for the Respondents: Pingali Lakshmi <Gist : >Head Note: ? Cases referred: 1. 2004(5) ALT 11 (SC) 2. 2002(6) ALD 137 (DB) 3. CDJ 2008 SC 990 4. (2004)3 Supreme Court Cases 297 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A. No.643 of 2008 DATE:06.07.2010 Between: The United India Insurance Company Limited, …… Appellant/Respondent No.2 And: Gousiya Begum and others. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A. No.643 of 2008 ORDER: The insurance company is the appellant. The respondents 1 to 9/claimants are dependants on the deceased Ibrahim who was cleaner in lorry bearing No.GJ-1-T-4424. The 10th respondent is owner of lorry bearing No.ADD 5511 and is also the insured under Ex.B-2 insurance policy issued by the appellant. On 18.05.1996 the accident took place at Kesavapuram village outskirts when driver of lorry bearing No. GJ-1-T-4424 hit another stationed lorry bearing No.ADD 5511. On Ex.A-2 report, the Kusumanchi Police registered case in Crime No.95/1996 and issued Ex.A-1 F.I.R against P.W-2. P.W-2 is driver of lorry bearing No. GJ-1-T-4424 in which the deceased was travelling at the time of accident. P.W-2 admits in cross-examination that police filed charge sheet against him for this accident and that in that criminal case he was sentenced to pay fine. The claimants/R-1 to R-9 filed O.P. No.166 of 2003 in the lower Tribunal i.e., Motor Accidents Claims Tribunal- cum-I Additional District Judge, Nalgonda under Section 163-A of the Motor Vehicles Act (in short, the Act) claiming compensation of Rs.2,00,000/- for death of Md.Ibrahim against owner and insurer of lorry bearing No.ADD 5511. The lower Tribunal awarded compensation of Rs.1,17,500/- after enquiry. 2) It is contended by the appellant’s counsel that the insured lorry was stationed on left side of the road and that lorry in which the deceased was travelling came rashly and negligently and hit the stationed insured lorry from behind and that therefore, the lower Tribunal should not have granted compensation under Section 163-A of the Act against owner and insurer of the stationed lorry. Alternatively, it is further contended by the appellant’s counsel that in case the Tribunal came to the conclusion that there was involvement of two lorries in this accident, then the lower Tribunal should have granted compensation against owners and insurers of both the lorries involved in this accident. On the other hand, it is contended by the counsel for the respondents 1 to 9/claimants that in case of claim under Section 163-A of the Act, there is no need to go into and decide driver of which lorry was at fault or negligent and it is sufficient if the lorry against whom compensation was claimed was involved in the accident. 3) Sub-sections (1) and (2) of Section 163-A of the Act read as follows: “(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 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. (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”. As per Sub-section (1) it is sufficient in a claim petition to prove death due to accident arising out of “the use of motor vehicle”. As per Sub-section (2) the claimant is not required to plead or establish that the death in respect of which the claim was made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person. Thus, in a claim petition fined under Section 163-A of the Act, the claimants need not plead nor prove rash and negligent driving of the vehicle; and irrespective of rash or negligent driving, main criterion necessary for a claim thereunder is that the accident arose out of use of motor vehicle. 3) In Deepal Girishbhai Soni V. United India Insurance Co. Ltd.,[1] the Supreme Court observed that “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”. Therefore, in a claim under Section 163-A of the Act, the Tribunal has to see whether the accident arose out of use of a motor vehicle, what was age of the deceased and his income and also “other factors relevant therefor”. It was further observed in Deepak Girishbhai Soni (1 supra): “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 the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of”. Therefore, it is immaterial in a claim under Section 163-A of the Act whether the victim was at fault or whether driver of lorry in which the deceased was travelling as cleaner was at fault. 4) Since this is not an appeal arising out of a claim under Sections 166 and 140 of the Act, division bench decision of this High Court in New India Assurance Company Limited V. B.Malla Reddy[2] has no relevance herein. 5) On the other hand, the counsel for the respondents 1 to 9 placed reliance on Rajesh Kumar @ Raju V. Yudhvir Singh[3], wherein it was observed by the Supreme Court that under Section 163-A of the Act, the question of liability and extent of proof thereof are not justiciable. 6) It is further contended by the respondents’ counsel that the appellant/insurer cannot raise any defences or contentions other than those specified in Section 149(2) of the Act, unless the insurer obtained permission of the Tribunal under Section 170 of the Act. With regard to the defences available for an insurer in a claim petition, the respondents’ counsel also placed reliance on National Insurance Co. Ltd. V. Swaran Singh[4] of the Supreme Court. 7) In this appeal, contention of the appellant is mainly that when two vehicles are involved in this accident, the claimants cannot claim entire compensation against persons relating to one of the two vehicles involved in this accident. The appellant/insurer is not trying to avoid liability on any of the defences available under Section 149(2) of the Act or breach of any express conditions contained in Ex.B-2/Ex.A-4 insurance policy. Question raised in this appeal is about maintainability of a claim under Section 163-A of the Act against persons relating to one motor vehicle only, when the accident occurred due to collision of two motor vehicles. Since the appellant is not questioning quantum of compensation decided by the lower Tribunal and since the question relating to rash or negligent driving is alien to a case under Section 163-A of the Act, Section 170 of the Act does not stand in the way of the appellant in this appeal. 8) No doubt, the claimants did not implead owner and insurer of lorry bearing No.GJ-1-T-4424 in which the deceased was travelling and driver of which vehicle was found to be at fault and caused this accident. Since this is a claim under Section 163-A of the Act, it is immaterial as to who was at fault. In case it is an accident involving only one vehicle, then it would be immaterial whether there was negligence or rashness in driving that vehicle resulting in the accident. As pointed out in Deepal Girishbhai Soni (1 supra), even if the victim was at fault and driver of the motor vehicle was not at fault, claim for compensation is maintainable under Section 163-A of the Act as against owner and insurer of the lorry which was involved in that accident. In the same decision, the Supreme Court categorically held that apart from age and income of the victim, “other relevant factors” also can be taken into consideration while determining compensation under Section 163-A of the Act by way of structured formula applying second schedule appended to the Act. This Court is of the opinion that those other relevant factors include taking into consideration of number of vehicles involved in the accident resulting in death of the deceased. It is not open to the claimants to pick and choose one of the two or more vehicles involved in the accident and to claim entire compensation from owner and insurer of that chosen vehicle under Section 163-A of the Act. If such choice of picking owner and insurer of one vehicle out of two or several vehicles involved in that particular accident resulting in death of the deceased, is permitted, then it would lead to arbitrariness of the claimants resulting in hardship and prejudice to the chosen owner and insurer of the motor vehicle. This Court is of the opinion that such arbitrary choice is not available to the claimants; and the claimants are expected to implead owners and insurers of all the vehicles involved in that particular accident resulting in death of the deceased. In case the claimants did not choose to implead owners and insurers of other vehicles involved in the accident, then it is not open to the claimants to mulct entire financial liability of paying compensation on owner and insurer of the chosen vehicle. No doubt, non-impleading of owners and insurers of all vehicles involved in the accident, may not lead to total denial of the compensation to the claimants. Liability to pay compensation under Section 163-A of the Act is on owners and insurers of all the vehicles involved in a particular accident resulting in death of the deceased. The words “the vehicle or vehicles” occurring in Sub-Section(2) of Section 163-A of the Act indicate that a claim petition under Section 163-A of the Act has to be laid against owner and insurer of one vehicle, in case the accident occasioned out of use of one motor vehicle and that claim thereunder has to be made against owners and insurers of all the vehicles in case the accident was occasioned due to involvement of and use of more than one motor vehicle. By applying the said formula, liability to pay compensation in the case on hand is not only on the 10th respondent and the appellant who are owner and insurer of stationed lorry bearing No. ADD 5511 but also on owner and insurer (if any) of running lorry bearing No.GJ-1-T-4424 in which the deceased was travelling as cleaner thereof. When liability under Section 163-A of the Act to pay compensation on the basis of structured formula is on two sets of persons relating to two vehicles, then owner and insurer of each vehicle has to bear the same in the proportion of 50% each. In that view of the matter, liability of the 10th respondent and the appellant put together is 50% of compensation payable under Section 163-A of the Act, which comes to Rs.58,750/-. Therefore, for all the above reasons, this Court finds that liability of the appellant/insurer is only to indemnify the insured/10th respondent to the extent of Rs.58,750/-. 9) In the result, the appeal is partly allowed modifying compensation amount payable to the respondents 1 to 9/claimants from Rs.1,17,500/- to Rs.58,750/-. No costs. _______________________________ SAMUDRALA GOVINDARAJULU, J July 6, 2010 NOTE: L.R.Copy to be marked (b/o)KSH [1] 2004(5) ALT 11 (SC) [2] 2002(6) ALD 137 (DB) [3] CDJ 2008 SC 990 [4] (2004)3 Supreme Court Cases 297