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Shobha & Others v/s Gani Rasul Shaikh & Another

    Miscellaneous First Appeal No. 30977 of 2013 (MV)

    Decided On, 05 November 2018

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HONOURABLE MR. JUSTICE H.T. NARENDRA PRASAD

    For the Appellants: Sanganabasava B. Patil, Advocate. For the Respondents: C.S. Kalaburagi & Sanaganagouda V. Biradar, Advocates.



Judgment Text

1. This appeal is filed by the claimants challenging the judgment and award dated 12-7-2012 passed by the Motor Accident Claims Tribunal No. V, Bijapur in MVC No. 1578 of 2009, whereby the Tribunal has rejected the claim petition filed by the claimants under Section 163-A of Motor Vehicles Act, 1988.

2. The brief facts of the case are that, on 14-8-2009 the Shantaram was driving a Tempo bearing Reg. No. MH-04-C-9028, while he was proceeding near Pune in Hinjawadi at 04.00 a.m. the said vehicle met with an accident thereby he sustained injuries and died. The Hinjawadi Police have registered the case in Crime No. 134 of 2009. The claimants are the wife and children of the deceased have filed the claim petition in MVC No. 1578 of 2009 for compensation of Rs. 11,00,000/-.

3. To establish their case they have examined one witness Smt. Shobha, wife of the deceased as P.W. 1 and marked the documents at Exs. P. 1 to P. 6. On the other hand the Insurance Company examined one witness as R.W. 1 and marked copy of the Insurance Policy as Ex. R. 1.

4. On appreciation of oral and documentary evidence the Tribunal has dismissed the claim petition filed under Section 163-A of M.V. Act by the claimants. Being aggrieved by the judgment and award of the Tribunal, the claimants have preferred this appeal.

5. Sri Sanganabasava B. Patil, learned Counsel for the appellants contended that, the Tribunal has erred in dismissing the claim petition filed by the claimants on the ground that, accident occurred due to wrongful act of the deceased. He further contended that, the Tribunal has not properly appreciated the Section 163-A of Motor Vehicles Act. Hence, he sought for allowing the appeal.

6. Per contra Sri C.S. Kalaburagi, learned Counsel for the respondent 2-Insurance Company submits that, it is an admitted fact that, the accident occurred due to negligence act of the deceased. Therefore, the Insurance Company is not liable to pay the compensation. Hence, he prayed to d

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ismiss the appeal.

7. Heard the learned Counsel appearing for the parties and perused the judgment and award of the Tribunal.

8. Before deciding the contentions raised by the parties it would be appropriate that, I may extract the following provisions of the Motor Vehicles Act, so as to properly appreciated the controversy involved in the present appeal:

“140. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.

(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:

Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163-A.

141. Provisions as to other right to claim compensation for death or permanent disablement.-(1) The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in Section 163-A (such other right hereafter in this section referred to as ‘the right on the principle of fault’) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.

(2) A claim for compensation under Section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first mentioned compensation and.-

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second mentioned compensation.

……….

144. Overriding effect.-The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.

……….

163-A. 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 motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

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 persons.

(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.

163-B. Option to file claim in certain cases.-Where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both.

………..

166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made.-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person, injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded a respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) ………..

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.

167. Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.

168. Award of the Claims Tribunal.-(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer), an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall 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, as the case may be:

Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.”

9. As would be seen from the plain language of the aforesaid provisions, all the provisions are beneficial in nature and, therefore, they have to be interpreted in a manner so as to achieve the main objective and intendment of the Legislature, which is social welfare of the victims of the accident.

10. The provisions with regard to the no fault liability were inserted having regard to the fact that road accidents in Indian have reached an alarming proportion and in many of the cases it could be noticed that the victims were being deprived of the compensation amount in the absence of proving rash or negligent driving due to inability in producing any independent witness. To come to the rescue of such victims, earlier Section 140 was brought on the Statute book whereby the provision was made to pay a fixed sum of Rs. 50,000/- (through an amendment by Act 54 of 1994 to substitute the amount of Rs. 25,000/- to Rs. 50,000/-) in respect of the death of any person and a fixed sum of Rs. 25,000/- (through an amendment by Act 54 of 1994 to substitute the amount of Rs. 12,000/- to Rs. 25,000/-) is payable in respect of the permanent disablement of any person on the principle of no fault liability. This right given under Section 140 of the Motor Vehicles Act was in addition to the right to claim compensation in respect of any such death or permanent disablement under any other provisions of Act or of any other law for the time being in force. Section 163-A was introduced in the Act again by way of a social security scheme. It would be evident from the objects and reasons of the Motor Vehicles (Amendment) Act, 1994 that after the enactment of 1988 Act several representation and suggestions were made by the State Governments, transport operators and members of public in relation to certain provisions thereof and after taking note of the said suggestions made by the various Courts and the difficulties experienced in implementing the various provisions of the Motor Vehicles Act, the Government of Indian appointed a Review Committee. The Review Committee appointed by the Government in its report made the following recommendations.

11. The 1988 Act provides for enhanced compensation for hit and run cases as well as for no fault liability cases. It also provides for payment of compensation on proof-of-fault basis to the extent of actual liability incurred which ultimately means an unlimited liability in accident cases. It is found that the determination of compensation takes a long time. Proposals have been made from time to time that the finalization of compensation claims would be greatly facilitated to the advantage of the claimant, the vehicle owner as well as the Insurance Company if a system of structured compensation can be introduced. Under such a system of structured compensation that is payable for different clauses of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of the minor, loss of income on account of loss of limb etc., can be notified. The affected party can then have the option of either accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing his claim through the normal channels.

12. The General Insurance Company with whom the matter was taken up, is agreeable in principle to a scheme of structured compensation for settlement of claims on “fault liability” in respect of third party liability under Chapter XI of M.V. Act, 1988. They have suggested that the claimants should first file their Claims with Motor Accident Claims Tribunals and then the insurers may be allowed six months time to confirm their prima facie liability subject to the defenses available under Motor Vehicles Act, 1988. After such confirmations of prima facie liability by the insurers the claimants should be required to exercise their option for conciliation under structured compensation formula within a stipulated time.

13. The recommendations of the Review Committee and representations from public were placed before the Transport Development Council for seeking their views pursuant whereto several sections were amended. Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Government from time to time.

14. It would be thus noticed that Section 163-A was brought on the Statute of Motor Vehicles Act to grant urgent relief to that section of people whose annual income is not more than Rs. 40,000/- having regard to the fact that compensation in such cases would be paid on the basis of the structured formula after taking into account the age of the victim and his income and all other factors as laid down in the Second Schedule of the Motor Vehicles Act.

15. The Section 163-A of the Motor Vehicles Act was brought on the statute book by the Legislature in the year 1994 to deal with those situation where the death or permanent disability has resulted due to some accident arising out of the use of the Motor Vehicle and not to burden the claimant to prove the factum of the negligence or wrongful act on the part of the Driver or Owner of the Vehicle. The intention of the legislation is that in the proceedings under Section 163-A of the Motor Vehicles Act, the Insurer cannot be raised any defence of the negligence on the part of the victim to counter the claim for compensation. My view is fortified by the decision of the Hon’ble Supreme Court in the case of United India Insurance Company Limited v Sunil Kumar and Another, 2018(1) ACJ 1 (SC), has clearly held that:

“P.8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.

P.9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163-A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim.”

16. The undisputed fact in this case are that, the deceased Shantaram is died due to accident occurred on 14-8-2009 and claimants have filed the claim petition under Section 163-A of the M.V. Act. The learned Tribunal has rejected the claim petition on the ground that accident occurred due to the negligence of deceased. This finding of the Tribunal is contrary to the provisions of Section 163-A of M.V. Act. In view of the above discussion and the law laid down by the Hon’ble Apex Court in the case of United Insurance Company Limited (supra), the learned Tribunal has not legally justified in rejecting the claim petition. Since the claim petition is filed under Section 163-A of M.V. Act, it is not open for the Insurer to raise any defence of negligence on the part of the victim. Hence, I proceed to pass the following:

ORDER

The appeal is allowed.

The matter is remitted to the Tribunal for fresh consideration in accordance with law.

All the contentions of the parties are kept open
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