IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 MACA.No. 223 of 2007(B) ---------------------- OPMV.333/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/1ST RESPONDENT --------------------------------------- NATIONAL INSURANCE COMPANY LTD., AROOR, REPRESENTED BY THE MANAGER, MTPD, REGIONAL OFFICE, KOCHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS : CLAIMANT & R1 TO 9 ---------------------------------- 1. P.C.CHACKO, S/O. M.C.CHACKO, AGED 74 YEARS, (1999), "LAKE VIEW", COLDEN STREET, CHERANELLOOR VILLAGE, KOCHI-672 023. 2. AMEENA ENTERPRISES, REPRESENTED BY ITS MANAGING PARTNER, ABDUL AZEEZ, CHANDIROOR POST, ALAPPUZHA DISTRICT. 3. GRACY GEORGE, PADINJATTEDATHU HOUSE, NELLIMALA, KUMBANAD, THIRUVALLA, PATHANAMTHITTA DISTRICT. 4. SANTHAMMA JESSEE, -DO- 5. MOLLY GEORGE, -DO- 6. VINNY GEORGE, -DO- 7. SHERLY THOMAS, 598, ROYAL LANE, ELAMKULAM, KOCHI-682 020. 8. BEJOY GEORGE, PADINJATTEDATHU HOUSE, NELLIMALA POST, ERAVIPURAM. MACA.No. 223 of 2007(B) - 2 - 9. ROY GEORGE, PADINJATTEDATHU HOUSE, NALLIMALA, KUMBANAD, THIRUVALLA, PATHANAMTHITTA DISTRICT. ADV. SRI.S.SREEKUMAR FOR R3 SRI.PHILIP MATHEW FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2011, ALONG WITH CO NO.75 OF 2010, MACA NO.243 OF 2007, C.O NO.63/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.223 of 2007-B, C.O No.75 of 2010 in M.A.C.A No.223/07, M.A.C.A No.243 of 2007-B, C.O No.63 of 2010 in M.A.C.A No.243/07 ***************************** Dated this the 22nd day of July, 2011 JUDGMENT BASANT, J. (i) How is the amount payable in the case of death under Section 163A of the Motor Vehicles Act (`the Act' hereafter) to be ascertained? (ii) Are the Tribunals to employ the multiplier- multiplicand method to ascertain the quantum of compensation payable in the case of death under the Second Schedule also? (iii) For what purpose is the “multiplier” furnished in the chart/table in the Second Schedule? (iv) Even in a claim under Section 163A are the claimants/legal heirs bound to prove the extent of dependency and loss? (v) Is negligence or contributory negligence relevant in a claim under Section 163A? vi) Can the Schedule to 163A be ignored or disregarded while ascertaining quantum of compensation under Section 163A? M.A.C.A Nos.223 and 243 of 2007-B 2 vii) Can the quantum of compensation payable in the case of death be ascertained independently without resort to the Second Schedule in a claim under Section 163A? 2. These very fundamental doubts/questions seem to disturb and vex Tribunals in the State. In matters coming up before us for admission and hearing in this jurisdiction we are able to perceive gross and chaotic confusion in the minds of tribunals and we are hence persuaded to consider the questions in detail to afford guidelines for the Tribunals. 3. These appeals are preferred by the authorised insurer, who has suffered directions under a common award under Section 163A of the Act to pay an amount of Rs.1,65,000/- each to the common claimant. The challenge of the appellant/insurer is directed against the quantum of compensation awarded. The respondent/claimant, an elderly person, aged about 74 years, has preferred Cross Objections. In the Cross Objections, he contends that the entire claim of Rs.2 lakhs must have been awarded by the Tribunal in both cases as compensation under Section 163A of the Motor Vehicles Act. 4. A brief reference to the vitally relevant facts may be useful. A couple and their 2 minor children were travelling in a M.A.C.A Nos.223 and 243 of 2007-B 3 car. The husband was driving the car. The other 3 were passengers. Another vehicle insured by the appellant herein/authorised insurer was coming in the opposite direction. There was a head on collision between the two vehicles resulting in the sustaining of injuries by all the 4 passengers in the car. Three of them - the husband and two minor children, succumbed to the injuries on the spot. The wife suffered injuries, but she survived for a short period of time and succumbed to such injuries later. 5. The claimant, in this case, has filed applications under Section 163A of the Motor Vehicles Act claiming compensation for the death of his daughter and his grand child. An amount of Rs.2 lakhs each was claimed. The claims in respect of one grand child and its father, who also had died in the accident were not filed by the claimant herein We are not posted with the details of such claims if any by either side. There is a suggestion at the bar that claims in respect of the husband and one child have been staked by the paternal grandfather. 6. We are not adverting to the other unnecessary details as it is very clear now that the claimants are pressing the claim for compensation only against the owner and the insurer of the M.A.C.A Nos.223 and 243 of 2007-B 4 lorry which had collided with the vehicle in which the deceased were travelling. 7. While the learned counsel for the common appellant contends that in a claim under Section 163A of the Motor Vehicles Act also, the precise loss suffered by the claimant has to be established, the learned counsel for the respondent submits that the said requirement under Section 166 of the M.V Act cannot be blindly imported while deciding a claim under Section 163A of the M.V Act. The learned counsel for the appellant repeats the oft repeated contention that a claim for compensation for death in a motor accident under Section 163A must be computed employing the multiplier-multiplicand method and not by ascertaining the relevant figure in the table/chart given under clause 1 of the Second Schedule of the M.V Act. There are disputes between the parties about the correct amount payable as per the said table/chart also. 8. In view of the various interesting contentions raised by the learned counsel for the appellant Sri. Rajan P.Kaliyath, we feel it appropriate to consider the change in law brought about by Section 163A of the M.V Act. It will be appropriate and apposite straight away to note that the amendment was brought M.A.C.A Nos.223 and 243 of 2007-B 5 about in 1994 for obvious purposes. The legislature, like all well meaning persons in the community, was getting perturbed and concerned about the scandalous delay in the disposal of claims for compensation staked before the Tribunals under Section 166 of the M.V Act. The challenge before the Tribunals was so enormous that the legislature felt obliged to devise simple, effective and expeditious procedure to ensure that just and reasonable compensation by resort to a rough and ready method is made available to the victims. Such amount payable may not be correct to the last decimal considering the loss suffered. But the legislature felt persuaded to incorporate Section 163A into the M.V Act to ensure that this compelling necessity of making rough and ready justice available to the victims and their legal heirs is met. Section 163A was born under these circumstances. We may venture to opine that Section 163A must be read along with the second schedule and when so read, it gives an effective, efficacious and expeditious method of ensuring the minimum amount of compensation to the victims/legal heirs, if they in their option choose to make such a claim. 9. It will be myopic not to perceive the thrust of the scheme evolved under Section 163A and the Schedule. M.A.C.A Nos.223 and 243 of 2007-B 6 Tribunals have to be spared of the obligation to consider and decide all unnecessary contentions which consume their time. Tribunals should not have the obligation to specifically ascertain the precise age or the precise income of the victims. The scheme of Section 163A clearly shows that the very purpose was to avoid contentious issues so that the pace of the process of adjudication can be quickened. That, to us, appears to be the fundamental concern which prompted the legislature to introduce Section 163A into the statute book. With that end in view primarily, a different statutory liability was created by the legislature. 10. Experience must definitely have taught the legislature that a lot of time of the Tribunals is spent in ascertaining the responsibility for the accident. Under Section 166, negligence continues to be the foundation of liability. We may straight away note that Section 166 does not create any right or liability, but only provides an efficacious and expeditious procedure for enforcement of the right which is already vested in the victim of an accident under the Law of Torts. In deciding a claim under the Law of Torts, the court has to look for negligence. A lot of time in litigation is taken up by this yearning/endeavour of the Tribunal to place the blame for an accident at the doors of either M.A.C.A Nos.223 and 243 of 2007-B 7 or both. Therefore we find the legislature coming out with the idea that negligence need not be proved in a claim under Section 163A. Negligence is irrelevant under Section 163A. It might have been shocking initially for the legal community, groomed in the tradition of the law of torts, to even conceive that there could be such a liability under law. The Indo Anglo Saxon Law hitherto knew of liability based only on fault. Of course Section 140 and its predecessor provisions had introduced the concept of no fault liability in a very limited sense. Fault is no more relevant in a claim under Section 163A. It must perhaps be apposite to look at the changing concepts relating to the law of compensation. Winds of changes are blowing and the legal community has to readjust its moorings and norms. 11. A person in a modern society is exposed to the complexities of development. Travel by motor vehicles, he must, whether he likes it or not. To exist in today's world, he has to use the road. Risk involved in travelling by road, on foot or in vehicles is something which a person is forced to take not merely because of his volition. He is forced to use the road, whether he likes it or not. Such risk involved might expose him to damage and loss. The legislature in its vibrant compassion, call it new M.A.C.A Nos.223 and 243 of 2007-B 8 jurisprudence, modern jurisprudence or socialist jurisprudence, places emphasis on the suffering of the victim rather than the fault of the other. What entitles a person to compensation under the new regime of no fault liability is not fault, but the suffering. The compassionate legislature of the modern socialist Indian republic therefore accepted that, not the minimal amount payable under Section 140, but larger amounts which is just compensation for the suffering/loss can also be paid under the scheme of Section 163A to the person who opts to stake his claim under that Section. The shift in emphasis from fault to suffering cannot be lost sight of by a discerning mind when he attempts to study the development and transformation of the law relating to payment of compensation in respect of a motor accident. 12. We shall now straight away refer to Section 163A. We extract Section 163A below: “Section 163A: 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 M.A.C.A Nos.223 and 243 of 2007-B 9 motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out 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 (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 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.]” (emphasis supplied) M.A.C.A Nos.223 and 243 of 2007-B 10 13. There can be no doubt that Section 163A creates a new, different, distinct and absolute statutory liability. In adjudication under Section 163A, the following questions will have to be considered by the Tribunal. (i) Was there an accident arising out of the use of a motor vehicle? ii) Did that accident result in death or permanent disablement? iii) Who is the authorised insurer of the motor vehicle involved or its owner? iv) Are the claimants the legal heirs of the victim or the victim? v) What is the amount of compensation payable under the Second Schedule? vi) If there are plurality of claimants/legal heirs, how is the amount to be distributed among them justly and reasonably? 14. These are the only questions to be ascertained in a claim under Section 163A. We repeat that negligence is irrelevant. Consequently contributory negligence must also be held to be absolutely irrelevant. To ascertain the liability under Section 163A, one need not go beyond the four walls of Section M.A.C.A Nos.223 and 243 of 2007-B 11 163A as it is a distinct and different absolute statutory liability imposed under Section 163A. Extent of dependency is also irrelevant to ascertain the quantum of compensation. Of course, later while directing apportionment among the legal heirs where there is plurality of legal heirs dependency may assume some relevance. But dependency or extent of dependency is absolutely irrelevant while ascertaining liability or quantum of liability of the owner/insurer in a claim under Section 163A. The legislature was conscious that it may be difficult for the polity and the legal community to accept the altered norms. That explains the employment of the non obstante clause in the opening words of the section. We may note that while any legal representative can sustain a claim under Section 166, only the legal heirs or the victim can sustain the claim under Section 163A. 15. It may not be inapposite straightaway to note that the owner of the motor vehicle as also the authorised insurer are made statutorily liable. One cannot omit to note the significance of including the authorised insurer as the one on whose shoulders the principal liability would rest. It is hence possible to take a view that the authorised insurer has been advisedly M.A.C.A Nos.223 and 243 of 2007-B 12 made principally liable under Section 163A to pay the amounts due under Section 163A. Non obstante clause makes it clear that the liability has to be understood ignoring the provisions of all other laws including the provisions of the M.V Act – nay including the other provisions in Chapter XI of the M.V Act. Policy of insurance may be relevant only to ascertain the status of the authorised insurer as such authorised insurer in respect of the vehicle. Thereafter it is possible to hold that even the policy of insurance may turn out to be irrelevant. It would be myopic not to perceive the significance of the legislature making the authorised insurer principally liable unlike in a claim under Section 166 or even Section 140 where the authorised insurer has no principal liability and such insurer becomes liable only by the play of Section 147 and Section 149 of the Act. Similarly Section 163A which declares the right and liability does not in any way limit the applicability of the section to third parties. Plain language of the section appears to take in all victims of motor accidents whether they are inside or outside the vehicle. The section, by the wide sweep of the semantics, appears to take within its width all victims of accidents. The mere fact that Section 163A was included in Chapter XI of the Act and that M.A.C.A Nos.223 and 243 of 2007-B 13 Chapter XI has the heading “Insurance of Motor Vehicles against third party risks” appears to be irrelevant considering the opening non obstante clause of Section 163A. The fact that the word “third party” appears on the heading of the Second Schedule does also appear to be irrelevant to us considering the language of Section 163A. The argument appears to be possible that Second 163A can apply only to third parties – that is, all persons other than the owner and authorised insurer, who are made liable under Section 163A. If suffering and not fault is the foundation of liability, it appears to us to be necessary to bring all who have suffered death/personal disablement within the sweep of the section - without exclusion of even the owner, if possible. We feel, one has to view the liability under Section 163A more as a welfare measure by the State which outsources its obligation to ameliorate the sufferings of victims of accidents and gets the same done by authorised insurers (basically Govt. companies) who are given monopoly rights to carry on the lucrative business activity of motor vehicles insurance. The State's liability/responsibility can be viewed as that of patron- patriarch to ameliorate the sufferings of victim citizens. It can also be viewed from the angle of its proven inability to prevent M.A.C.A Nos.223 and 243 of 2007-B 14 actionable negligence on its roads. Want of adequate infrastructure may also contribute/cause the accident in which even also the responsibility of the State is prominent. It appears to us that the liability under Section 163A is advisedly placed on the broad shoulders of the authorised insurer of the vehicle who is favoured by the State to exclusively undertake such lucrative business activity. It is true that the owner is also made liable. We feel that it applies to a defaulter owner who despite the mandate of the M.V Act has defaulted in getting his vehicle insured. That the defaulter owner has been made liable in a case where there is no authorised insurer in respect of a vehicle is according to us too unsatisfactory an indication to deny benefits of Section 163A to victim/owners, their employees, or those who allegedly step into their shoes. All victims appear to fall within the target group to whom benefits are intended under beneficial statutory provision gong by the simple and plain language of Section 163A. We need not and do not intend to delve deeper into those aspects in the facts of this case. The question is really interesting and challenging, we feel. We have digressed and given expressions to our thoughts on this aspect in this paragraph only in our attempt to properly understand the M.A.C.A Nos.223 and 243 of 2007-B 15 concept of the new liability under Section 163A. We confess that our thoughts have not been restrained by observations in some other precedents – binding and persuasive. 16. Be that as it may, what we need to particularly note is that Section 163A creates a new absolute statutory liability which was hitherto unknown to the law relating to compensation for motor accidents. To understand that liability/right, the polity including the experts in law will have to adapt to the changing times. 17. The second schedule prescribes the amounts payable. It is true that amounts payable are described to be “compensation” under Section 163A. The expression compensation cannot be read and understood to be anything more than “amount” in the circumstances. The learned counsel Sri. Rajan P.Kalityath advances an ingenious argument that the amounts stipulated under the Second Schedule would not become payable unless loss is established by the claimant. We are unable to accept this contention. Notwithstanding the employment of the expression “compensation” in the body of Section 163A(1), we must note that in the context, true to the purpose, reason, object and scheme of the section, the M.A.C.A Nos.223 and 243 of 2007-B 16 expression compensation can only mean `amount'. It is impermissible to import the concept of actual loss suffered by the claimant merely from the use of the expression “compensation” in Section 163A. Such an interpretation would defeat the very purpose and object of Section 163A. If the expression `compensation' were to be so read and the obligation to prove actual loss were to be imported merely from the deployment of the word “compensation”, one will be at a loss to understand why the Second Schedule at all prescribes amounts. The attempt to bring all the theories regarding payment of compensation back to Section 163A with the help of the deployment of the expression “compensation” in Section 163A must, in these circumstances, fail certainly. 18. It will be apposite straightaway to refer to the Second Schedule. The Second Schedule has 6 clauses - the first deals with the fatal accidents, the second deals with the minimum amount of compensation, the third deals with the general damages payable in the case of death, the fourth deals with the general damages payable in the case of injuries and disabilities, the 5th describes how the disability in non-fatal accidents is to be calculated and the sixth deals with the presumption regarding M.A.C.A Nos.223 and 243 of 2007-B 17 the notional income of compensation of those who had no income prior to the accident. 19. In clause(1) a table/chart is given. The table has several horizontal columns as also vertical columns. The horizontal columns relate to the age of victims. Victims are sub divided into 12 categories - the first one being persons upto 15 years and the last one being persons above the age of 65 years. In between, we have 10 groups of victims each falling within a 5 year age group (15-20, 20-25, 25-30 etc.). We have vertical columns also. The first one deals with the age of the victim. Second one deals with the multiplier. The next 13 columns give figures which as per the heading represents “rupees in thousands” which is payable as “compensation in case of death”. The heading of the 13 vertical columns refer to the annual income of the victim. In these 13 columns, different figures are given starting with Rs.3,000 and ending with Rs.40,000/-. In between, we have 11 figures representing the possible annual income of the victim/deceased. To ascertain the quantum of compensation payable in fatal accidents under the table/chart, the Tribunal is not expected to embark on any detailed enquiry pressing into service the multiplier-multiplicand method. The table/chart M.A.C.A Nos.223 and 243 of 2007-B 18 clearly shows the amounts payable in thousands in each case. All that the Tribunal has to do is to ascertain the correct X axis, (ie. the age group of the victim). Thereafter the correct Y axis, (ie. the annual income of the deceased), has to be ascertained. Thereafter the Tribunal has to ascertain the relevant entry where the two axes meet. That is the amount representing rupees in thousands that must be paid as compensation. Of course, this is subject to the rider in the note under the table/chart that 1/3 of the amount must be deducted towards personal expenses of the deceased. 20. The task before the Tribunal appears to be very simple. A person who chooses to lodge a claim under Section 163A of the M.V Act in respect of a death of a victim will be entitled to get only the amount mentioned in the table/chart and nothing more. It is for the claimant to take an informed decision/option, before the Tribunal considers his claim. He must decide whether he wants to stake the claim under Section 166 of the M.V Act, in which event he will have to establish negligence and the actual loss. He can then claim a higher amount. But when it comes to the claim under Section 163A of the M.V Act, in the case of death, he will get only what is payable M.A.C.A Nos.223