Connected With S.B. Civil Miscellaneous Appeal No. 2567/2018 Girraj S/o Shri Govind @ Jayram, aged 20 years, R/o Bairwo Ki Dhani, Shikarpura, Ward No.36, Police Station Sanganer Sadar, District-Jaipur

----Appellant Versus

1. Ramphool Bairwa S/o Rameshchand, R/o Bairwo Ki Dhani, Shikarpura, Ward No.36, Police Station Sanganer Sadar, District- Jaipur (Driver of motorcycle bearing No.RJ-14-DH-0982)

2. Laxmi Bairwa D/o Shri Pappu Lal, W/o Shri Ganesh Bairwa, R/o Ward No.22, Sattuwali Dhani Chaksu, Police Station Chaksu, District, Jaipur (Owner of Motor Cycle No.RJ-14-DH-0982)

3. National Insurance Company Ltd., through his Regional Office, Jeevan Nidhi, LIC Building, near Amedkar Circle, Bhawani Singh Raod, Jaipur (Insurer of Motorcycle No.RJ-14-DH-0982)

----Respondent (Downloaded on 24/12/2022 at 09:30:28 PM) (2 of 14) [CMA-2566/2018] For Appellant(s) : Mr. Bhanu Prakash Verma, Adv. For Respondent(s) : Mr. Vinod Tyagi, Adv., through VC in CMA No.2566/2018 HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment 12/05/2022 Both the appeals arise out of a common judgment and award, hence, same are being decided together.

These appeals have been submitted against the judgment and award dated 16.02.2018 passed by the Court of learned Special Judge of Printing and Stationery Embezzlement Cases- cum- Motor Accident Claims Tribunal, Jaipur District-Jaipur in claim case Nos. 461/2017 (Old 356/2016) New Mact Main 71/2018 & 460/2017 (Old 355/2016) New Mact Main 70/2018 by which the claim petitions filed under Section 163A of the Motor Vehicles Act, 1988 by the injured-claimnats- Ganesh Bairwa S/o Shri Ramphool Bairwa & Girraj S/o Shri Govind @ Jayram were partly allowed.

The issues in these appeals are "Whether the amended Section 164 can be taken into account in the pending appeals against the claim petition filed under Section 163A of the Motor Vehicles Act, 1988 for deciding the quantum of compensation and whether the appeal is a continuous part of the claim proceedings?"

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or grievous hurt 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 the vehicle or of the vehicle concerned or of any other person.

(3) Where, in respect of death or grievous hurt due to an accident arising out of the use of motor vehicle, compensation has been paid under any other law for the time being in force, such amount of compensation shall be reduced from the amount of compensation payable under this section.

At the time, when the accident took place, the second schedule of the Act of 1988, as it stood then, applied to Section 163A of the Act. Subsequently, the Second Schedule was amended w.e.f 22.05.2018 by which flat compensation of Rs. 5 lacs was fixed in case of death and Rs. 2.5 lacs in case of grievous hurt to the legal heirs or the victim, as the case may be. But by the 2019 amendment of the Act, which has become effective w.e.f. 01.09.2019, Section 163A and the second Schedule of the Act (Downloaded on 24/12/2022 at 09:30:28 PM) (7 of 14) [CMA-2566/2018] have been renewed. Section 164 of the Act of 1988 has come into force w.e.f 01.09.2019 and Section 163A and the Second Schedule, have been removed.

The only other avenue open to award higher amount on claim under Section 163A in respect of fatal accident, would be to seek application of the 2018 amendment to the Second Schedule of the Act or the equivalent 2019 amendment to the Act, which provides for a flat compensation of Rs. 5 lacs in case of death and Rs. 2.5 lacs in case of grievous hurt. As the Act of 1988, in the matter of Motor Vehicles Act , which has to be regarded as a beneficial legislation, it stands to reason that the amendment of 2018 to the Second Schedule and the subsequent 2019 amendment to the Act would have to be given effect in this claim where accord and satisfaction might not have been achieved after adjudication.

The Punjab and Haryana High Court in the case of Manpreet Kaur Vs. Sukhdev Singh & Anr. , in FAO No.390 of 2019 (O & M) decided on 16.07.2021 has held that the appeal is continuation of the claim proceedings and held in para 18 to 26 and 28 as under:-

It would be seen that in the peculiar facts of Ramkhiladi's case, claimants were disentitled to the benefit of the amendment to the 2nd Schedule. While doing so, the specific question of law settled in and the ratio rendered in Union of India v. Rina Devi , supra were not gone into. Being so, view taken in the peculiar facts of Ramkhladi and another versus The United India Insurance Company , supra does help respondent No.2. Not only Ramkhiladi is (Downloaded on 24/12/2022 at 09:30:28 PM) (10 of 14) [CMA-2566/2018] distinguishable and inapplicable in the facts of the instant case, but even otherwise, the opinion expressed therein does not out-weigh the ratio rendered in Union of India v. Rina Devi .

25. In the parting, learned counsel argues in the alternative, that in a recent Apex Court judgment rendered in Rajendra Singh and others versus National Insurance Company Limited and others reported in 2020 (3) RCR (Civil) 26, wherein compensation was claimed under Section 166 of the Act on the death of a 12 year old minor child, a compensation of only Rs.2,95,000/- was awarded. He also relies on another Apex Court judgment rendered in Reshma Kumari and others versus Madan Mohan and another reported in 2013 (9) SCC 65, wherein it was held that notional income of child should be taken as Rs.15,000/- per month. He contended that, accordingly, by applying multiplier of 15 and (15,000 x 15), a compensation of Rs.2,25,000/- for death would meet ends of justice in the instant case and by adding Rs.5,000/- as funeral expenditure, a total compensation of Rs.2,30,000/- would suffice by enhancement of Rs.25,000/-.

26. The aforesaid arguments of learned counsel for respondent No.2-Insurance Company are being noted only for the sake of rejection. Neither of these judgments, cited by him, is applicable in the instant case. The claims therein were under Section 166 of the Act of 1988. I have held that in present case, the compensation is payable under Section 163-A of the Act read with the amended Second Schedule as applicable on the date of award and compensation is strictly on the no fault principle. It is, therefore, not necessary for me to go into the issue of multiplier and/or the notional income and/or any other parameters applicable to the claims under Section 166 of the Act of 1988.

28. As a result of above discussion, the impugned award dated 05.10.2018 passed by the learned Tribunal is modified and the compensation awarded is enhanced to Rs.5,05,000/- with interest at the rate of 7% per annum from the date of institution of claim petition. The enhanced compensation, after adjusting the payment, if any, already made, be disbursed to the appellant/claimant within two months from the receipt of certified copy of this order, otherwise the same shall bear interest at the rate of 9% per annum from the date of this order till payment."

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(11 of 14) [CMA-2566/2018] Even the Gauhati High Court in the case of National Insurance Company Ltd. Vs. Suren Ch. Ray & Ors. , in MACApp. 140/2018, decided on 25.06.2020 has held that the appeal is a continuation of proceedings. The Court has held that the amended Second Schedule has to be taken into account in case of a pending appeal against the claim filed under Section 163A of the Act and it has been held in Para 21 as under:-

The identical controversy came before the Division Bench of Calcutta High Court in the case of Urmila Halder Vs. New India (Downloaded on 24/12/2022 at 09:30:28 PM) (12 of 14) [CMA-2566/2018] Assurance Co. Ltd. & Ors. reported in 2018 SCC Online Calcutta 11751, and the same was dealt in Para 8, 12, 13, 14 and the same was decided in Para 125 which reads as under:-

Counsel for the respondent-Insurance Company is not in a position to dispute the amended provisions of the Motor Vehicles Act of 2019 and the controversy has been resolved in the cases of Manpreet Kaur (supra), Urmila Halder (supra) and Suren Ch. Ray (supra). In order to settle the controversy in the light of the above judgments, this Court deems it just and proper to award a lump- sum amount of Rs. 2,50,000/- (including the amount already awarded by the Tribunal) to the injured claimants-appellants- Ganesh Bairwa S/o Shri Ramphool Bairwa & Girraj S/o Shri Govind @ Jayram each under all the heads including medical bills respectively.

In view of the discussion made above, both the appeals are partly allowed.

All pending application(s), if any, also stand(s) disposed of. Thus, the amount of Rs.1,41,000/- (2,50,000-1,09,000 = 1,41,000) in claim case No. 461/2017 (Old 356/2016) New Mact Main 71/2018 & Rs. 1,43,000/- in claim case No. 460/2017 (Old 355/2016) New Mact Main 70/2018 are enhanced.

The respondent-Insurance Company is directed to pay the enhanced amount of Rs. 1,41,000/- & 1,43,000/- to the injured claimants-respondents respectively in addition to the amount already awarded by the Tribunal vide judgment dated 16.02.2018 (Downloaded on 24/12/2022 at 09:30:28 PM) (14 of 14) [CMA-2566/2018] within a period of two months from date the receipt of the certified copy of this Judgment.

Copy of this judgment be placed in the connected appeal.

(ANOOP KUMAR DHAND),J PRAVESH/18-19 (Downloaded on 24/12/2022 at 09:30:28 PM) Powered by TCPDF (www.tcpdf.org)