IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

The Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? Yes.

For the appellant: Mr. Ashwani K. Sharma, Senior Advocate, with Mr. Ishan Thakur, Advocate.

For the respondents: Mr. Varun Rana, Advocate, for respondents No. 1 and 2.

Nemo for respondents No. 3 and 5.

Mr. D.N. Sharma, Advocate, vice Mr. R.S. Chandel, Advocate, for respondent No. 4.

Mansoor Ahmad Mir, Chief Justice.

This reference has been made by a learned Single .

Judge of this Court on noticing the conflicting judgments made by this Court. The matter was put up on administrative side before the Chief Justice and was ordered to be listed before the of Division Bench. This is how the instant reference came up for consideration before this Court.

2. rt The learned Single Judge, vide order, dated 21 st July, 2016, while recording the reasons as to why reference was required, has referred the following questions for adjudication by the larger Bench:

pleading an income more than what is prescribed in the second schedule, can abandon a part of their claim and restrict the same to ₹ 40,000/­ per annum or less so as to of bring inconformity with the schedule?"

3. rt Before we deal with the questions (supra) and determine the reference, it is profitable to give a brief history as to how compensation was granted to the persons, who sustained injuries in the vehicular accidents or to the legal representatives of the persons, who sustained injuries and succumbed to the said injuries, as per the mandate of Law of Torts.

4. In earlier days, a suit was to be filed by an aggrieved person for grant of compensation and with the development of law, different legislation was made in order to provide speedy and better remedies enabling the aggrieved person to have compensation as early as possible.

5. The Apex Court in the case titled as Syad Akbar versus State of Karnataka , reported in (1980) 1 Supreme .

Court Cases 30, has dealt with the issue.

6. The Motor Vehicles Act came into force in the year 1939. Section 110 of the said Act provided for grant of of compensation. The claim petition was to be filed by the injured­claimant or the legal representatives of the deceased, rt which was to be tried by the Tribunal headed by a District Judge. Thereafter, an amendment was made in the year 1982 and Section 92A was introduced in order to grant immediate relief by way of an interim award.

7. Thereafter, the Motor Vehicles Act, 1988 (for short " MV Act ) came into force with effect from 1 st July, 1989, replacing the Motor Vehicles Act, 1939 . In the year 1994, the MV Act has gone through sea change with sole aim and object to provide speedy and effective relief to the victims, the details of which are given as under:

8. Chapter X of the MV Act , consisting of Sections 140 to 144, provides how to grant compensation 'On The Principle Of No Fault'.

9. Chapter XI of the MV Act mandates for insurance of the motor vehicles against third party risks. It contains .

Sections 145 to 164 . Section 158 (6) provides that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this of section is completed by a police officer, it is the duty of the officer in­charge of the police station to forward a copy of the rt same to the Claims Tribunal having jurisdiction. Chapter XI also contains Section 163 ­A which provides for compensation 'On Structured Formula Basis'.

10. Chapter XII of the MV Act contains Sections 165 to

176. Section 166 (4) mandates the Claims Tribunal to treat the police report relating to vehicular accidents forwarded to it under Section 158 (6) as an application for compensation under this Act. Section 167 provides an option to the claimants, who also have remedy available under the Workmen's Compensation Act, 1923 (for short "WC Act").

They can claim compensation either under the MV Act or WC Act.

11. The Apex Court has discussed the said provisions of law in a judgment rendered in the case titled as Jai .

Prakash versus National Insurance Company Limited and others , reported in (2010) 2 Supreme Court Cases

607. It is apt to reproduce paras 9, 11, 12 and 20 to 22 of the of judgment herein:

Sub­section (4) of Section 166 of the Act .

reads thus:

10. ...............

11. This Court in General Insurance Council v. State of A.P. , 2007 12 SCC 354, rt emphasised the need for implementing the aforesaid provisions. This Court directed:

12. But unfortunately neither the police .

nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent of need for the concerned police authorities and Tribunals to follow the mandate of these provisions.

rt xxx xxx xxx

20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.

21. For complying with Section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:

of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.

(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, of with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and rt disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas , 1994 2 SCC 176.

(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.

22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 11 mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active .

role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."

12. The Apex Court in the case titled as Puttamma of and others versus K.L. Narayana Reddy and another , reported in 2014 AIR SCW 165, has also laid down the same rt ratio.

13. The question is - Once the jurisdiction of the Claims Tribunal has been invoked and during the trial, evidence comes on record to the effect that the accident was outcome of rash and negligent act and income of the victim was more than ₹ 40,000/­ per annum, whether the petition under Section 163 ­ A of the MV Act can be dismissed? The answer is in the negative for the following reasons:

14. While going through the scheme, aim, object and mandate of Sections 158 (6) and 166 (4) of the MV Act and the ratio laid down by the Apex Court, it can be safely held that a claim petition under Sections 163 ­A or 166 of the MV Act ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 12 cannot be dismissed on flimsy grounds and petition under Section 140 of the MV Act can be filed only under Section 166 .

of the MV Act , is based 'On The Principle Of No Fault' and is an interim measure.

15. The Second Schedule appended with the MV Act of provides the income slab. Thus, petition under Section 163 ­ A of the MV Act can be maintained in case the income of the rt victim of a vehicular accident is less than ₹ 40,000/­ per annum.

16. In the case titled as National Insurance Company Ltd. versus Sinitha & Ors. , reported in 2012 AIR SCW 10, the Apex Court held that in the claim petitions filed under Section 163 ­ A of the MV Act , the claimants are not required to prove the wrongful act or neglect or default of the offending vehicle. It is apt to reproduce para 15 of the judgment herein:

Since the provisions under Chapter XII are structured under the "fault" liability principle, its alternative would also of inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre­ structured formula to evaluate rt compensation. It provided for some short­ cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. All in all, one cannot lose sight of the fact, that claims made under Section 163A can result in substantial compensation. When taken together the liability may be huge. It is difficult to accept, that the legislature would fasten such a prodigious liability under the "no­ fault" liability principle, without reference to the "fault" grounds. When compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a "fault" ("wrongful act", "neglect", or "defect") under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A of the Act is founded under the "fault" liability principle."

17. The mandate of Section 163 ­ A of the MV Act is to provide compensation 'On Structured Formula Basis' finally .

and is not an interim measure. Once it is granted, the victims cannot file claim petition under Section 166 of the MV Act for grant of enhanced compensation. But, in case the Claims of Tribunal comes to the conclusion that the income of the victim is more than ₹ 40,000/­ per annum, it is not supposed to rt dismiss the claim petition. If the claim petition is dismissed on this ground then the aim, purpose and object of Sections 158 (6) , 163 ­A and 166 (4) of the MV Act would be defeated.

18. The Apex Court in the case titled as Deepal Girishbhai Soni and others versus United India Insurance Co. Ltd., Baroda , reported in (2004) 5 Supreme Court Cases 385, has dealt with the issue and held that claimants can file petition either under Section 163 ­A or Section 166 of the MV Act, is an option, rather, an election/exception. It is worthwhile to reproduce paras 52 and 57 of the judgment herein:

19. In the case titled as Surinder Kumar Arora & another versus Dr. Manoj Bisla & others , reported in 2012 AIR SCW 2241, it has been held that the claimant has option to seek compensation either under Section 166 or under Section 163 ­ A of the Act . It is apt to reproduce para 9 of the judgment herein:

20. The Apex Court in another case tilted as Reshma Kumari & Ors. versus Madan Mohan & Anr. , reported in 2013 AIR SCW 3120, has laid down the same principle.

21. In the case titled as United India Insurance Company Ltd. versus Sunil Kumar & Anr. , reported in 2013 AIR SCW 6694, the Apex Court, while discussing the judgments in Deepal Girishbai Soni's and Sinitha's cases (supra), has referred the matter to the larger Bench. It is apt to reproduce para 5 of the judgment herein:

22. The larger Bench has not yet decided the said reference and is still on the dockets of the Apex Court. But in para 5 of the said judgment , quoted hereinabove, it has specifically been held that filing a claim petition under Section ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 19 163­ A of the MV Act is an exception to Section 166 of the MV Act.

23. At the cost of repetition, the Claims Tribunals have powers under Section 166 (4) of the MV Act read with Section 158 (6) of the MV Act and the Motor Vehicles Rules to of treat any petition either under Section 163 ­A or Section 166 of the MV Act. The scope, aim, object and reasonable logic rt behind such legislation nowhere empowers the Claims Tribunals to dismiss a claim petition filed by the victim on the ground of income slab, who has chosen to file the same under Section 163 ­ A of the MV Act with a hope that he will get compensation as early as possible. The Claims Tribunals have the power to treat the same under Section 166 of the MV Act so as to redress the grievances of the victims. If the claim petition is dismissed on such grounds, that will defeat the purpose of the Act and will amount to succumbing to the technicalities.

24. While going through the aim and object of the MV Act , one comes to an inescapable conclusion that the wisdom of the Legislature was to provide compensation to the victims as ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 20 early as possible and that is why amendments were made from time to time with a sole object that the claimants do not suffer .

and fall prey to social evils.

25. The Apex Court and other High Courts have held that the Courts should not succumb to the procedural of wrangles and tangles, hypertechnicalities and mystic maybes and that should not be a ground to dismiss the rt claim petition and to defeat the rights of the claimants.

26. The same principle has been laid down by the Apex Court in the cases titled as N.K.V. Bros (P.) Ltd.

Versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354; Sohan Lal Passi versus P. Sesh Reddy and others , reported in AIR 1996 Supreme Court 2627; and Dulcina Fernandes and others versus Joaquim Xavier Cruz and another , reported in (2013) 10 Supreme Court Cases 646; and by this Court in FAO No. 339 & 340 of 2008, titled as NIC versus Parwati & others; FAO No. 172 of 2006, titled as Oriental Insurance Company versus Shakuntla Devi & ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 21 others ; FAO No. 396 of 2012, titled as Asha & others versus Moti Ram & others ; FAO No. 4248 of 2013, titled as .

Magni Devi & others versus Suneel Kumar & others , decided on 13.03.2015; FAO No. 17 of 2008, titled as United India Insurance Company Limited versus Smt. of Brijbala & others , decided on 20.03.2015; and FAO No. 186 of 2008, titled as Oriental Insurance Co. Ltd. versus Shri rt Kishan Chand & others, decided on 01.05.2015.

27. The Apex Court in a latest judgment rendered in the case titled as Smt. Savita versus Bindar Singh & others , reported in 2014 AIR SCW 2053, has held that the niceties or technicalities have no role to play. It is worthwhile to reproduce para 6 of the judgment herein:

28. rt The Apex Court in another case titled as Ningamma & another versus United India Insurance Co. Ltd. , reported in 2009 AIR SCW 4916, held that it is the bounden duty of the Court to award just compensation in favour of the claimants to which they are entitled to, irrespective of the fact whether any plea in that behalf was raised by the claimants or not. It is profitable to reproduce para 25 of the judgment herein:

irrespective of the fact whether any plea in .

that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also of whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court."

29. rt In Sinitha 's case (supra), the Apex Court has held that it is open to the owner or the insurer to defeat a claim under Section 163 ­ A of the MV Act by pleading and establishing through cogent evidence a wrongful act or neglect or default.

30. Sub­section (2) of Section 163 ­ A of the MV Act provides that the claimant is not required to plead or establish the wrongful act or neglect or default of the owner of the vehicle. Perhaps that was the reason that the Apex Court in Sunil Kumar 's case (supra) made a reference to the larger Bench, which is yet to be decided. So, we refrain from making discussion and return findings.

31. The Apex Court in the case titled as United India Insurance Co. Ltd. Versus Shila Datta & Ors., reported in .

2011 AIR SCW 6541, has made discussions about the aim and object of the legislation and has also provided what is the procedure to be followed by the Claims Tribunals while of determining the claim petitions. Five points were framed for determination in the said reference and points No. (iii) to (v) rt were further referred to a larger Bench. It is not known whether said reference has been answered. However, we have laid our hands on order, dated 12 th November, 2013, in terms of which the appeal, which had given birth to the said reference, has been dismissed.

32. It is also worthwhile to record herein that in Sunil Kumar 's case (supra), points No. (iii) to (v) framed in Shila Datta's case (supra) have also been referred to a larger Bench. Meaning thereby, the reference is yet to be answered.

But, the findings in para 5 of the judgment in Shila Datta's case (supra) were not the subject matter of the reference and ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 25 have attained finality. It is profitable to reproduce para 5 of the judgment in Shila Datta's case (supra) herein:

motor accident, the driver and owner have to be impleaded as respondents. The claimants need not implead the insurer as a party. But they have the choice of impleading the insurer also as a party respondent. When it is not impleaded as a party, the Tribunal is required to issue a of notice under section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.

(iv) The words 'receipt of an application for compensation' in section 168 refer not only to an application filed by the claimants claiming compensation but also to a suo motu registration of an application for compensation under section 166(4) of the Act on the basis of a report of an accident under section 158(6) of the Act.

(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 27 matters relevant to inquiry, to the assist it in holding the enquiry (vide section 169 of the Act).

(vii) The award of the Tribunal should specify the person/s to whom compensation should be paid. It should also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them. (Vide section 168 of the Act).

(viii) The Tribunal should deliver copies of the award to the parties concerned rt within 15 days from the date of the award. (Vide section 168 (2) of the Act).

We have referred to the aforesaid provisions to show that an award by the tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."

33. This Court also in the case titled as Smt. Asha & others versus Sh. Moti Ram & others , reported in Latest HLJ 2014 (HP) 595, while relying upon the various pronouncements made by the Apex Court, has held that granting of compensation is just to ameliorate the woes of the victims of the vehicular accidents and the hypertechnicalities, mystic maybes and procedural wrangles and tangles cannot be ::: Downloaded on - 15/04/2017 21:18:55 :::HCHP 28 made a ground to defeat the social purpose of granting compensation.

34. In the case titled as United India Insurance Company Limited versus Smt. Samitra Devi & others , reported in Latest HLJ 2015 (HP) 85, this Court held that of claim petitions cannot be scuttled away enroute on the ground that the claimants have not claimed the amount to which they rt are entitled to. Further held that the Claims Tribunal is within its powers to grant compensation more than what is claimed and the Appellate Court has the same powers even if the claimants have not filed appeal or cross­objections. It would be profitable to reproduce paras 27, 28 and 31 of the judgment herein:

respondents to the application for compensation. Other important part of the said Section is sub­section (4) which provides that "the Claims Tribunal shall treat any report of accidents forwarded to it under sub­section (6) of Section 158 as an application for of compensation under this Act." Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no rt specified amount is claimed.

8. ..........................

9. It appears that due importance is not given to sub­section (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under sub­section (6) of Section 158 , as an application for compensation under this Act.

10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

35. The same principle has been laid down in the cases titled as Smt. Shrestha Devi and others versus Kishori ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 31 Lal and others , being FAO No. 465 of 2009, decided on 1st July, 2016; and Dinesh Kumar versus Puran Singh and .

others, being FAO (MVA) No. 189 of 2011, decided on 5 th August, 2016.

36. The proceedings instituted under Sections 163 ­A of or 166 of the MV Act are to be taken to the logical end by following a summary procedure as per the mandate of MV Act rt read with the Motor Vehicle Rules.

37. The Apex Court in the case titled as Malati Sardar versus National Insurance Company Ltd. and others , reported in AIR 2016 Supreme Court 247, has held that the award passed in a claim petition cannot be set aside on account of lack of territorial jurisdiction unless it has caused prejudice because that will amount to defeat the aim, object and purpose of the MV Act . The ratio of the said judgment is that the Claims Tribunals/Courts shall reach the victims as early as possible and grant compensation to which they are entitled to as per the norms applicable. It is apt to reproduce para 14 of the judgment herein:

38. The Claims Tribunals have the power, as discussed hereinabove, to treat the claim petition under Section 163 ­A or Section 166 of the MV Act, but that power can be exercised before final award is made. After passing such order, the Claims Tribunals have to provide opportunities to the parties to plead their case and take all defences available, so that no prejudice is caused to the parties, in order to ensure that the grievance of the claimants is redressed, which is the aim and object of granting compensation.

39. If a claim petition filed under Section 163 ­ A of the MV Act is dismissed on account of income slab or on the .

ground of rash and negligent element involved, the claimants can file a fresh claim petition under Section 166 of the MV Act and can take all such grounds, but that would be against the of concept of granting compensation and would defeat the very purpose. It would really be a travesty of justice to constrain rt the claimant(s) to file fresh claim petition under Section 166 of the MV Act for the reason that the claim petition can be filed at any time as the rigour of delay stands taken away by the amendment made in the year 1994 and Section 166 (3) of the MV Act stands deleted.

40. The Apex Court in the case titled as Dhannalal versus D.P. Vijayvargiya and others , reported in AIR 1996 Supreme Court 2155, has discussed the purpose of amendment made in the year 1994 deleting sub­section (3) of Section 166 of the MV Act and taking away the rigour of limitation. The ratio of the said judgment and the purpose of deletion of sub­section (3) of Section 166 of the MV Act is aimed at to provide compensation to the victims of the ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 34 vehicular accident at any time in order to achieve the purpose of granting compensation in terms of the mandate of the MV .

41. In the given circumstances, it can be safely held that there is no legal impediment in treating the claim petition of under Section 166 of the MV Act, which has been filed under Section 163 ­ A of the MV Act and granting compensation.

42. rt If a claim petition filed for grant of compensation under Section 163 ­ A of the MV Act is granted, the claimants are precluded from filing fresh claim petition under Section 166 of the MV Act for enhanced compensation because the award made under Section 163 ­ A of the MV Act is final and operates as Res Judicata and Estoppel.

43. The Apex Court in Deepal Girishbhai Soni's case (supra) has also held that the proceedings under Section 163 ­ A of the MV Act are aimed at to provide speedy and quick relief to the claimants and the award made is a final award. It would be profitable to reproduce paras 41 to 43 of the judgment herein:

44. The appeal under Section 173 of the MV Act is alike the appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, " CPC "). Therefore, the Court is under obligation to decide all factual and legal issues arising in a case.

45. The Apex Court in U.P.S.R.T.C. vs. Km. Mamta and others , reported in AIR 2016 Supreme Court 948, held that remedy under Section 173 of the MV Act and the first ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 37 appeal under Section 96 CPC are alike and, therefore, the High Court has to decide all issues arising in the case. It is .

profitable to reproduce paragraph 24 of the said judgment hereunder:

46. Keeping in view the above discussion, it is not mandatory to file claim petition by the claimants because even a police report can be treated as a claim petition.

47. Having glance of the above discussions, the judgments made by this Court in the case titled as New India Assurance Company Ltd. versus Chanchal Devi & ors., reported in Latest HLJ 2014 (HP) 250, and FAO No. 394 of 2007, titled as Oriental Insurance Company Ltd. versus Meena & ors., decided on 11th July, 2014, are in accordance with the judgments made by the Apex Court (supra), and the judgments in the cases titled as Sudhir Mahajan versus United India Insurance Company Ltd. & anr., reported in ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 38 2007 (2) Shim.LC 305; Shanti Devi & anr. versus National Insurance Company & ors, reported in 2008 (2) .

Shim.LC 125; Satya Devi versus Bakshi Ram & ors., reported in 2009 (2) Shim.LC 381; and New India Assurance Company versus Smt. Veena Devi & ors., of reported in Latest HLJ 2009 (HP) 770, are not in tune with the ratio laid down by the judgments made by the Apex Court, rt as discussed hereinabove, and are also not in accordance with the aim and object of the said Legislation.

48. The protection provided under Section 163 ­ A of the MV Act is to the victims whose income slab is up to ₹ 40,000/­ per annum and that remedy is not available to the victims whose income slab is more than ₹ 40,000/­ per annum. If the Claims Tribunal comes to the conclusion that the income slab of the victim is more than ₹ 40,000/­, the remedy under Section 163 ­ A of the MV Act cannot be pressed into service, but, as discussed hereinabove, it can be treated as claim petition under Section 166 of the MV Act by providing opportunity to the claimants to prove rash and negligent ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 39 element, which is sine quo non for determining the claim petition under Section 166 of the MV Act and opportunity is .

also required to be provided to the respondents to raise all defences available to them in terms of the mandate of the MV Act .

49. The claimants cannot be permitted to abandon a part of their claim and restrict the same to ₹ 40000/­ per rt annum in order to avail the remedy under Section 163 ­ A of the MV Act . That is not the aim, object and scope of the Legislation. If that would have been so, then there was no need to prescribe the income slab and in case the claimants are allowed to do so, it will amount to re­writing the provisions of Section 163 ­ A of the MV Act .

50. Having said so, the claimants/victims cannot be permitted to abandon a part of their claim and restrict the same to ₹ 40,000/­ per annum in order to maintain the claim petition under Section 163 ­ A of the MV Act .

51. It is worthwhile to record herein that the Division Bench of this Court in the case titled as Sukhwant Kaur and others versus Sher Singh and another , reported in 2008 ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 40 (3) Shim.LC 93, has held that claim petition under Section 163 ­ A of the MV Act was not maintainable in view of the fact .

that the income of the deceased was more than ₹ 40,000/­ per annum (para 3); and the claim petition was treated under Section 166 of the MV Act in terms of para 4 of the judgment, of but was dismissed on the ground that negligence was not proved.

52. rt Thus, it cannot be said that the judgment in Chanchal Devi 's case (supra) is in conflict with the judgment in Sukhwant Kaur 's case (supra).

53. The reference is answered accordingly.

54. Whether the appeal in hand be sent to the learned Single Judge for determination is also a moot question. The claimants have already suffered because of the procedure adopted, is travesty of justice and judicial process. So, we deem it proper to determine the appeal also.

55. The claim petition was filed under Section 163 ­ A of the MV Act for grant of compensation, as per the break­ups given in the claim petition, on the grounds taken therein.

56. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of .

objections.

57. Following issues came to be framed by the Tribunal on 26th October, 2007:

58. The claimants have examined three witnesses and .

one of the claimants has himself stepped into the witness box.

It is apt to record herein that the respondents, including the insurer, have not led any evidence. Thus, they have failed to prove the defences taken by them and issues No. 3 to 6 came to of be decided against the insurer.

59. The rt claimants, owner­insured, driver and conductor of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.

60. The appellant­insurer has questioned the impugned award mainly on the ground that the claim petition was not maintainable for the reason that the monthly income of the deceased was alleged to be ₹ 6,000/­ per month, i.e. ₹ 72,000/­ per annum.

61. This ground is not available to the insurer for the reason that, as discussed hereinabove, the claim petition cannot be dismissed on that ground and it can be treated as claim petition under Section 166 of the MV Act. Though, the ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 43 claimants have averred that the income of the deceased was ₹ 6,000/­ per month, but, the Tribunal has held that the .

income of the deceased was ₹ 3300/­ per month. Thus, his income was not more than ₹ 40,000/­ per annum, and the claim petition under Section 163 ­ A of the MV Act was of maintainable.

62. Even otherwise, if we treat the claim petition rt under Section 166 of the MV Act, rash and negligent driving of the offending vehicle by its driver has been proved, which is sine quo non for maintaining the claim petition and granting compensation under the said Section. In para 24 of the claim petition, it has specifically been averred that the deceased was travelling on the roof top of the bus and was hit on head by an over hanging branch of tree, which factum has not been denied by the driver and conductor of the bus. Allowing a person to travel on the roof of the bus, on the face of it, is an act of negligence and rashness of the driver.

63. In a case titled as N.K.V. Bros. (P.) Ltd. versus M. Karumani Ammal and others , reported in AIR 1980 Supreme Court 1354, a bus hit an over­hanging high tension ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 44 wire resulting in 26 casualties. The Apex Court upheld the findings recorded by the Tribunal and the High Court that the .

accident had taken place due to the rashness and negligence of the driver of the bus despite the fact that the driver earned acquittal in the criminal case on the score that the tragedy of that happened was an act of God.

64. The Apex Court in the case titled as Shivaji rt Dayanu Patil and another versus Vatschala Uttam More , reported in 1991 ACJ 777, has interpreted the words and expression 'use of motor vehicle' and held that these have a wide connotation. It is apt to reproduce paras 35 and 36 of the judgment herein:

36. This would show that as compared to the expression 'caused by', the ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 45 expression 'arising out of' has a wider connotation. The expression 'caused by' was used in sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In section 92 ­ .

A, Parliament, however, chose to use the expression 'arising out of' which indicates that for the purpose of awarding compensation under section 92 ­A, the causal relationship between the use of the motor vehicle and the accident resulting in death or of permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be,connected with the use of the motor vehicle but the said rt connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in section 92 ­A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."

65. While going through the judgment (supra), one comes to an inescapable conclusion how the accident and injury/death have relationship with use of motor vehicle.

66. In the case titled as New India Assurance Co.

Ltd. versus Shanti Bai (Smt) and others , reported in (1995) 2 Supreme Court Cases 539, the deceased was travelling on the roof top of the bus, met with an accident, claim petition was filed, was granted by the Claims Tribunal, ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 46 awarded compensation in favour of the claimants and saddled the insurer, owner­insured and driver of the bus with liability.

The said decision was upheld by the High Court, was again assailed by the insurer before the Apex Court. The Apex Court upheld the award but saddled the insurer with liability of limited to ₹ 15,000/­ in terms of the insurance policy.

67. It is apt to record herein that the said judgment rt has been upheld by Constitutional Bench of the Apex Court in the case titled as New India Assurance Co. Ltd. versus C.M. Jaya and others , reported in (2002) 2 Supreme Court Cases 278.

68. The Full Bench of the High Court of Karnataka at Bangalore in the case titled as North East Karnataka Road Trans. Corpn. versus Vijayalaxmi and others , reported in 2012 ACJ 1968, held that no contributory negligence or fixed percentage of contribution could be attributed to a passenger merely because he was travelling on roof of the bus. It has further been held that travelling on the roof of the bus is a negligent act.

69. This Court in FAO No. 44 of 2010, titled as Himachal Road Transport Corporation & Anr. versus .

Kamlesh Kumari and others, decided on 8th April, 2016, held that allowing a person to travel on the roof of a bus in itself amounts to negligence on the part of the driver and the of conductor of the bus.

70. Applying the test to the instant case, the deceased, rt while travelling on the roof of the bus, was hit by an over hanging branch of a tree, due to which he fell down, sustained injuries and succumbed to the injuries. Thus, it can be safely said that it was an act of negligence on the part of the driver and conductor of the bus.

71. If the claim petition is treated under Section 163 ­ A, the income of the deceased is less than ₹ 40,000/­ per annum and if it is treated under Section 166 of the MV Act, the rash and negligent driving of the offending vehicle has also been proved, is maintainable on both counts.

72. The purpose behind filing of the claim petition by the claimants was that they will be able to get the compensation as early as possible, but, unfortunately, the ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 48 deceased has died on 7th October, 2003, the claim petition was filed on 5th December, 2003, about thirteen years has elapsed .

and the claimants have yet to reap the fruits, is a terrible commentary on the process and speaks how the insurer is contesting the claim petition.

73. The purpose of Section 163 ­ A of the MV Act is just to give a speedy compensation to the victims of the vehicular rt accidents, which has been thrown to winds. So, we deem it proper to saddle the insurer with costs.

74. The adequacy of compensation is not in dispute.

However, we have gone through the impugned award read with the record and are of the considered view that the amount awarded is rather inadequate, but, as the claimants have not questioned the same, is reluctantly upheld.

75. The factum of insurance is also not in dispute.

Thus, the Tribunal has rightly saddled the insurer with liability.

76. Having said so, the impugned award merits to be upheld. Accordingly, the impugned award is upheld and the ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP 49 appeal is dismissed with costs quantified at ₹ 10,000/­ payable to the claimants.

77. The insurer is directed to deposit the costs before the Registry of this Court within four weeks. On deposition of the costs, the awarded amount alongwith costs be released in of favour of the claimants strictly as per the terms and conditions contained in the impugned award through payees' account rt cheque or by depositing the same in their respective bank accounts.

78. Send down the records after placing a copy of the judgment on the Tribunal's file.

(Mansoor Ahmad Mir) Chief Justice (Sandeep Sharma) Judge September 28, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 21:18:56 :::HCHP