IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.3377/2004 1.P.Radhakrishnan 2.Vijaya 3.R.Girija 4.Rita ..Appellants1 to 4/ Petitioners 1 to 4/Claimants 1 to 4 Vs 1.M.Murugesan 2.The New India Assurance Company Limited Dharmapuri 606701 ..Respondents 1&2/Respondents 1&2/ Owner, Insurance. Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 5.8.2004 made in MACTOP.No.424/2003 by the learned Additional Special Judge (MACT) Krishnagiri. For Appellant : Mr.P.Mani For Respondent : Mr.G.Udayashankar-R2 JUDGEMENT This is an appeal filed by the claimants under Section 173 of the Motor Vehicles Act, 1988 against the Judgement and award dated 5.8.2004 made in MACTOP.No.424/2003 by the learned Additional Special Judge (MACT) Krishnagiri, exonerating the Insurance Company from the liability to pay compensation and also against the quantum determined by the Tribunal. 2. By the impugned award, the Tribunal partly allowed the claim petition of the Appellants/claimants filed under the provisions of the Motor Vehicles Act claiming compensation for the death of one R.Parandaman and accordingly, awarded a sum of Rs.1,70,000/- as total compensation and fastened the liability on the owner/1st Respondent herein. It is against this award, the claimants, asking for enhancement in the compensation determined by the Tribunal and also exonerating the Insurance Company from the liability to pay compensation, have filed this appeal. https://hcservices.ecourts.gov.in/hcservices/ 3. The grievance of the Appellants herein is that when there is a valid Insurance Policy, the Insurance Company is also liable to pay compensation to the claimants and the Tribunal erred in exonerating the Insurance Company from its liability, merely because it is unable to give a finding as to who drove the vehicle at the time of the accident. It is contended by the Appellants that the driver of the vehicle, who was having a valid driving licence, was prosecuted and convicted by the criminal court in respect of the accident, as evidenced by Ex.A4 charge sheet and Ex.A5 order passed by the criminal court and that in the absence of any contra evidence led by the Insurance Company to disprove the said facts, the Tribunal ought to have directed the Insurance Company to pay the compensation to the claimants. 4. On the other hand, it is contended by the 2nd Respondent Insurance Company that the claimants having filed the claim petition under Section 163A of the Motor Vehicles Act, it is deemed that the negligence on the part of the deceased had been admitted and it is not permissible for the claimants to seek enhancement of the claim. It is contended that the 2nd Respondent Insurance Company having proved that the driver of the bus at the time of the accident was one Dhanasekaran, who did not have a valid and effective driving licence, by examining the Motor Vehicle Inspector who had opportunity to verify the documents at first hand, the Tribunal rightly exonerated the Insurance Company from its liability to pay compensation. It is also submitted that though the Tribunal went wrong in construing the case one under Section 166 of the Motor Vehicles Act instead of dealing it under Section 163 of the Motor Vehicles Act, but however, determined the compensation payable to the claimants considering the notional income of the deceased, as envisaged from the II Schedule of the Motor Vehicles Act 1988 and arrived at the just and reasonable compensation which warrants no interference by this court. 5. Mr.P.Udayashankar, the learned counsel for the 2nd Respondent Insurance Company, relying upon the decision of a three Judges Bench of the Honourable Supreme Court rendered in the case of Deepal girishbhai Soni and others Vs. United India Insurance Company Limited (2004-ACJ-934), contended that when the claimants have chosen to file the claim petition under Section 163A of the Motor Vehicles Act and are conscious of the fact that the deceased sustained injuries only on account of his negligence as he travelled as a footboard traveller, they cannot change over the provisions of law before this court in the appeal seeking enhancement of the award invoking Section 166 of the said Act 6. Per contra, Mr.P.Mani, the learned counsel for the Appellants submitted that the provisions of law have been wrongly quoted as Section 163A instead of 166 of the Motor Vehicles Act in the claim petition and the evidence led by the parties would clearly show that the claim was made only under Section 166 of the Act. He submitted that the negligence aspect was pleaded and proved by the claimants by adducing oral and documentary evidence and the Insurance Company contested the claim on the ground that https://hcservices.ecourts.gov.in/hcservices/ there was no negligence on the part of the driver of the vehicle. The learned counsel drew the attention of this court to the entire judgement of the Tribunal in support of his contention that the Tribunal appreciated the oral and documentary evidence adduced by the parties, considered the submissions and rendered a finding that the accident occurred due to the rash and negligence of the driver of the bus. 7. The learned counsel for the Appellants contended that actually the petition was intended to be filed under Section 166 of the Act, but by mistake either due to inadvertence or ignorance quoted the wrong provision of law viz. Section 163A instead of Section 166 of the Act. He would submit that merely quoting a wrong provision of law would not debar the claimants from seeking enhancement of the claim, more so, when the Tribunal had treated the claim petition under Section 166 of the Act and proceeded to deal with the claim as if one filed under Section 166 of the Motor Vehicles Act. In support of his contention, the learned counsel for the Appellants relied upon the decision of this court reported in 2010-2-TNMAC-287 (The Branch Manager, New India Assurance Company Limited, Perambalur Vs. Balagurumoorthy and another). He also relied on a decision of the Division Bench of the Calcutta High Court reported in 2010-2-TNMAC-561-DB-Cal (Bajaj Allianz General Insurance Company Limited Vs. Supriya Das and another) to support his contention that caption of application would not determine the real nature of claim and the substance of application is the decisive factor. The relevant portion in paragraph 6 of the said decision is extracted as hereunder:- "6. ..... Nevertheless, the law is now settled that mere caption of an application does not determine the real nature of the same and in order to consider whether an application is maintainable or not before a Court of law, the substance of the application is the decisive factor. In other words, even if a wrong Section of a statute is mentioned in the cause title of the application for that reason the court or Tribunal will not reject the same if it appears that such court or Tribunal is vested with the authority to entertain and decide the disputes involved therein...." 8. I have heard the submissions of the learned counsel on either side and also perused the materials placed on record. 9. The question that arose on appeal before the Honourable Supreme Court in Deepal Girishbhai Soni Vs. United India Insurance Company Limited (2004-5-SCC-385) was whether a proceeding under Section 163A of the Motor Vehicles Act, 1988 is a final proceedings by reason whereof, a claimant who has been granted compensation under Section 163A is debarred from proceeding with any other further claims on the basis of faulty liability in terms of Section 166. The Honourable Supreme Court held thus:- https://hcservices.ecourts.gov.in/hcservices/ "A provision of law providing for compensation is presumed to be final in nature unless a contra indicaiton therefor is found to be in the statute either expressly or by necessary implication. The scheme envisaged under Section 163A leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. Having regard to the fact that in terms of Section 163A 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 Act. The same is not interim in nature. Apart from the fact that compensation is to be paid by applying the multiplier method under the Second Schedule, other relevant factors, namely, reduction of one third in consideration of the expenses which the victim would have incurred towards maintaining himself, general damages in case of death as also in the case of injuries and disabilities as also disability in non fatal accidents, a notional income for compensation to those who had no income prior to the accident are provided for are required to be considered which is also a clear pointer to the fact that thereby Parliament intended to provide for a final amount of compensation and not an interim one. This together with the other heads of compensation as contained in columns 2 to 6 of the Second Schedule leave no manner of doubt that Parliament intended to lay down 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. The remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both." It was held by the Honourable Supreme Court that the remedy for payment of compensation both under Sections 163A and 166 are final and a claimant cannot pursue his remedy later under Section 166 of the Motor Vehicles Act, once his claim is determined under Section 163A of the Act. I am afraid that the said decision can be applied to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ 10. Section 163A of the Act provides for filing of a claim petition where an accident took place by reason of use of the motor vehicle. It is not necessary to prove any fault on the part of the driver of the vehicle. But, the Tribunal in a proceeding arising under Section 166 of the Act is required to hold a full-fledged trial. It is required to collect data on the basis whereof, the amount of compensation can be determined. 11. In my opinion, the very fact that the claim petition was decided on merits by the Tribunal, like a claim petition filed under Section 166 of the Act, is enough to reject the submission of the learned counsel for the 2nd Respondent Insurance Company. In other words, the Tribunal allowed the parties to prosecute the claim petition as if filed under Section 166 of the Act. Not only that, even Tribunal framed issues on all material pleadings applicable for deciding the claim petition under Section 166, such as issues relating to negligence and whether the claimants are entitled to get compensation from the Respondents and then the Tribunal had allowed the parties to adduce evidence on these issues and then answered them on merits in favour of the claimants. It was held that the deceased died due to the negligence of the driver of offending vehicle. 12. The Tribunal then examined the issue relating to the second issue and determined the compensation as Rs.1,70,000/- fixing the notional income of the deceased at Rs.1500/- applying the multiplier of 16 which also included conventional compensation payable under the Act. 13. In my opinion, therefore, mere mention of Section 163A ibid. in the claim petition by itself would not be a ground to reject the claim of the Appellants seeking enhancement of the award. When the entire trial of the claim petition was held treating the same to have been filed under Section 166 of the Act without there being any objection, then in that event, the Insurance Company cannot be allowed to raise such technical plea at the appellate stage. The award is passed under Section 166 of the Act as all the ingredients for deciding the claim petition under Section 166 of the Motor Vehicles Act had been satisfied. Therefore, I find no merit in the contention raised by the learned counsel for the Appellants. 14. Mr.P.Mani, the learned counsel for the Appellants assailed the findings of the Tribunal contending that the Tribunal has completely failed to take into consideration of the evidence of RW.2, the owner of the bus wherein he had stated that one Jayapaul drove the vehicle at the time of the accident and he had valid a driving licence. He would submit that no value could be attached to the testimony of RW.1 Motor Vehicle Inspector, as he had stated that based on the information furnished by the Police, he had recorded that one Danasekaran was the driver who drove the bus at the time of the accident. He would point out that after investigation, charge sheet was laid against one Jayapaul and he had been convicted on his admission of guilt. He would submit that https://hcservices.ecourts.gov.in/hcservices/ it is for the Insurance Company to prove that the driver who drove the vehicle had no valid and effective driving licence and in the absence of any such evidence, the Tribunal erred in holding that as there was no definite material to infer as to who was the driver at the time of the accident, the 2nd Respondent/ Insurance Company cannot be fastened with the liability. 15. There could be no doubt that in order to escape liability, not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the Insurance Company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely showing that there was some discrepancy in regard to the driver who drove the vehicle will not absolve the Insurance Company from its liability to pay compensation to the claimant. The onus of proving that the driver never had a licence is on the Insurance Company. 16. The Honourable Supreme Court in Narcinva V. Kamat Vs. Alfredo Antonio Doe Martins and others (1985-ACJ-397-SC) observed thus:- "When the Insurance Company complains of a breach of the terms of contract which would permit it to disown its liability under the contract of insurance, the burden is squarely on the Insurance Company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be 'who would fail, if no such evidence is led'. With this principle of law in view, the evidence has to be judged. Merely non production of driving licence or non examination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of non examination of the driver or non production of the licence, the burden is discharged by a mere question in the cross examination nor the owner is under any obligation to furnish the evidence so as to enable the Insurance Company not to wriggle out of its liability under the contract of insurance." 17. In the present case, it is not disputed by the Insurance Company that one Jayapal had a valid and effective driving licence. No notice asking the owner who deposed as RW.2 in this case has been issued to produce the driving licence nor was any material placed on record to show that the driver was not having an effective and valid driving licence at the time of the accident. Therefore, in my view, the insurer had not been able to show that the driver of the vehicle had no valid driving licence at the time of the accident. In that view of the matter, the Tribunal erred in exonerating the Insurance Company from the liability to pay the compensation to the claimants. It is not in dispute that the offending vehicle was insured with the 2nd Respondent Insurance Company and therefore, the 2nd Respondent is liable to indemnify the insured, the 1st Respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 18. In so far as the negligence aspect is concerned, the evidence placed on record clearly established that the bus driver was negligent in driving the bus, who had applied sudden brake, as a result of which, the deceased who was seated on the rear seat was thrown out of the bus and sustained fatal injuries. There is no contra evidence led by the Insurance Company. On appreciation of evidence placed on record, the Tribunal rightly held that the accident occurred due to the rash and negligent driving of the driver of the bus. 19. As far as the quantum is concerned, the deceased was a Ist Year BBA Student as evidenced from Ex.P6 issued by the Principal of the Thirupattur Arts and College of Science. According to the claimants, he was working as a part time accountant in a Finance Company and was earning Rs.3000/- p.m. The learned counsel for the Appellants contended that the deceased being a Ist Year BBA Student and having the potential of earning more, the future prospects are also more and relying upon the decision of the Honourable Supreme Court in Bijoy Kumar Dugar Vs. Bidyadhar Dutta (2006-ACJ-1058-SC) contended that while arriving at loss of income, the future prospects has to be considered. In a recent decision of the Honourable Supreme Court rendered in the case of R.K.Malik Vs. Kiran Pal and others (2009-ACJ-1924-SC) the Honourable Supreme Court while awarding compensation to the parents for the death of the school children held thus:- "31.... It is well settled legal principle that in addition to awarding compensation for pecuniary loses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation." 20. In the aforesaid case in R.K.Malik Vs. Kiran Pal (2009-ACJ-1924-SC), the Honourable Supreme Court took into consideration the earlier decision passed by the Honourable Supreme Court in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas (1994-ACJ-1-SC), Sarla Dixit Vs. Balwant Yadav (1996-ACJ-581-SC), Lata Wadhwa Vs. State of Bihar (2001-ACJ-1735- SC) and held that the future prospects of the deceased is one of the vital aspects to be considered by the Tribunal, while arriving at the loss of income. 21. As far as this case is concerned, the monthly income of the deceased could be arrived at Rs.3000/- as even in these days, a coolie is considered to be earning not less than Rs.3000/- per month. There is no contra evidence to rebut the evidence of PW.1 that the deceased was earning as a part time worker Rs.3000/- per month. Considering the future prospects of the deceased, this court fixes the monthly income of the deceased at Rs.4500/-. 22. The deceased was only 19 years of age at the time of the accident and he was not at the marriageable age. Normally if the deceased bachelor was at the marriageable age, there is the possibility of getting married in a short time in which event, the https://hcservices.ecourts.gov.in/hcservices/ contribution to the parents is likely to be reduced. But, in this case, the deceased was studying Ist year BBA and there was no reason to deduct 50 per cent of the income towards his personal expenses. 23. In a recent decision of the Honourable Supreme Court reported 2009-ACJ-2359-SC (Oriental Insurance Company Limited Vs. Deo Patodi, it was held that deduction of 1/3rd for personal expenses is the ordinary rule. In Fakeerappa Vs. Karnataka Cement Pipe Factory (2004-ACJ-699-SC) the Honourable Supreme Court deducted only 1/3rd towards personal expenses from the income of the bachelor. Similar is the view taken by the Honourable Supreme Court in Bilkish Vs. United India Insurance Company Limited (2008- ACJ-1357-SC) and Managing Director, Bangalore Metropolitan Transport Corporation Vs. Sarojamma (2008-ACJ-1619-SC). 24. Applying the aforesaid ratio adopted by the Honourable Supreme Court , this case is not an exceptional case where 50 per cent has to be deducted towards the personal expenses of the deceased. Taking into consideration the mother's age of the deceased, who was 38 years old, 15 is the proper multiplier. After deducting 1/3rd for personal expenses, adopting multiplier of 15, the loss of income would come to Rs.5,40,000/- (Rs.3000*12*15). In addition to this, Rs.20,000/- towards loss of love and affection and Rs.5000/- for funeral expenses are added. In all, the claimants are entitled to a sum of Rs.5,65,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the petition till the date of realization. 25. In the result, this Civil Miscellaneous Appeal is allowed . The impugned award is enhanced from Rs.1,70,000/- to Rs.5,65,000/- as mentioned above. In all, the claimants are entitled to a total compensation of Rs.5,65,000/- (Rupees five lakhs sixty five thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization as detailed below:- The impugned judgement and award of the Tribunal exonerating the 2nd Respondent Insurance Company is set aside and it is held that the 2nd Respondent Insurance Company is liable to pay the compensation awarded to the Appellants. Accordingly, the 2nd Respondent/Insurance Company is directed to deposit the entire award amount of Rs.5,65,000/- with interest at 7.5% p.a. from the date of the petition till the date of deposit within a period of eight weeks from the date of receipt of a copy of this order and on S.No Category 1 Loss of Income 540000 2 Loss of Love and Affection 20000 3 Funeral Expenses 5000 Total Compensation 565000 Award Amount (Rs.) https://hcservices.ecourts.gov.in/hcservices/ such deposit being made, the claimants are entitled to with draw the entire amount with interest. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Srcm To: 1.The Additional Special Judge (MACT) Krishnagiri 2.The Record Keeper, VR Section, High Court, Madras. 3. + 1 cc to Mr. P. Mani, SR.27524 + 1 cc to Mr.G. Udayasankar, SR.27325 CMA.No.3377/2004 BS(CO) EU 10.6.11 https://hcservices.ecourts.gov.in/hcservices/