w w w . L a w y e r S e r v i c e s . i n



K. Sekar & Another v/s M/s. S.R.S. Travels, Karnataka & Another

    C.M.A. No. 575 of 2017

    Decided On, 02 February 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Appellants: Ramya V. Rao, Advocate. For the Respondents: R2, R. Sree Vidhya, Advocate, R1, No appearance.



Judgment Text

(Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the fair and decreetal order dated 27.04.2012 in M.C.O.P.No.1907 of 2008 on the file of the Motor Accidents Claims Tribunal/17th Additional Judge, Fast Track Court, Chennai.)1. Appeal by the dependants of the motor accident victim, for enhancement of compensation, being unsatisfied with the quantum of award passed by the Motor Accident Claims Tribunal, Chennai.2. As per the claim petition, on 26/03/2008 around 4.30 p.m, Mr.Harikrishnan while riding along Pallikaranai Road, in his motorcycle bearing registration No.TN 07-AH-7115, near Kamachi Hospital, the driver of the stationed bus bearing registration No.TN-22- AT 8291 negligently without noticing the motorcycle, suddenly moved and hit the left side of the motorcycle. The motorcycle rider Harikrishnan was thrown away and fell on the road. He sustained grievous injury and taken to hospital. First Aid treatment was given at Kamachi Hospital. For further treatment, he was taken to Government General Hospital, Chennai. He was admitted as inpatient on 26/03/2008. At the hospital not responding to the treatment he died on 31/03/2008. The claimants, contending that the deceased was earning Rs.3,300/-pm as Supervisor at Hotel Picnic and as parent, they were depending on his income. Hence, Rs.8,00,000/- was sought as compensation against the bus owner and the insurer of the bus.3. The bus owner remained exparte. The insurance company contested the claim obtaining leave under Section 170 of the Motor Vehicles Act. It filed counter wherein contended that the bus bearing registration No. TN 22 AT 8291 insured with them not responsible for the said accident. The accident did not occur as narrated in the claim petition. In fact, the deceased drove his motorcycle rash and negligently, dashed against the stationed bus and sustained injury. The motorcyclist was the cause for the alleged accident. The claimants are put to strict proof of the age, income and dependency.4. Before the Tribunal, on behalf of the claim petitioners, two witnesses were examined. 7 documents were marked. On behalf of the respondents, one witness and two documents were marked.5. The Tribunal, on considering the evidence placed before it, held that the accident occurred due to the negligence of the victim Harikrishnan. He being the tort-feasor, the claim petition by the parent of the deceased Harikrishnan under Section 163-A of the Motor Vehicles Act is not sustainable. However, held, they are entitled for compensation under “No fault liability clause” (Section 140 of the Motor Vehicles Act). Therefore, as against the claim of Rs.8,00,000/-, the Tribunal awarded a compensation of Rs.50,000/- with 7.5% interest payable from the date of petition (21/04/2008) till the date of deposit.6. The said award is challenged in this appeal on the following grounds:-The Tribunal failed to appreciate the evidence placed before it in proper perspective. It erred in relying upon the First Information Report against the deceased victim to hold that the deceased is the tort feasor. The testimony of the claimant(PW-1)and the eye witness (PW-2) were not given due consideration. The precedent laid by the High Court and the Hon’ble Supreme Court were ignored.7. The learned counsel appearing for the appellants submitted before this Court that the Tribunal failed to consider the facts of the case and the spirit behind the provision of law. The petition was filed under Section 163-A of the Motor Vehicles Act. Since the victim annual income was less than Rs.40,000/-, the claimants thought fit in their wisdom it is suffice to seek compensation on the basis of structured formula given under the Second Schedule of the Motor Vehicles Act without requirement of any proof of negligence of the driver involved in the accident.8. The Hon’ble Supreme Court in the following judgments1) United India Insurance Company -vs- Sunil Kumar and another:[AIR 2017 SC 5710]2) Shivaji and another -vs- Divisional Manager, United India Insurance Co. Ltd: (CDJ 2018 SC 817) and3) Chandrakanta Tiwari -vs- New India Assurance Company Ltd and Another (CDJ 2020 SC 821),has held that in the claim petition filed under Section 163-A of the Act, the insurance company is not permitted to raise the defence of negligence on the part of the victim. Therefore, the decision of the Tribunal awarding fixed compensation of Rs.50,000/- under Section 140 of the Motor Vehicles Act instead of structured formula as per Second Schedule is contrary to law and facts.9. Responding to the above submission, the learned counsel for the 2nd Respondent/Insurance Company countering the above submission of the appellant’s counsel, submitted that as per the FIR, the deceased while riding his two wheeler rash and negligently, dashed against the stationed bus parked on the extreme left of the road margin. For the injuries he sustained got admitted in the hospital but succumbed to the injuries. The evidence of PW-2, who deposed to the effect that the accident occurred due to the bus driver negligence was rightly disbelieved by the Tribunal, since PW-2 presence at the scene of accident was not proved.10. Therefore, the Tribunal holding a tortfeasor is disentitled for compensation under Section 163A, awarded compensation under Section 140. In support of her argument, the learned counsel for the 2nd respondent/insurance company rely upon the judgments of the Hon’ble Supreme Court in (1)Ram Kiladi and another -vs- The United India Insurance Co Ltd: reported in 2020(1) TNMAC 1 (SC) and (2)The Madras High Court judgment rendered in the Divisional Manager, Oriental Insurance Co. Ltd, Vellore -vs- R.Damodaran and another: reported in (CDJ 2020 SC 014).11. Heard the learned counsels and records perused.12. PW-1 is the 2nd claimant. She is the mother of the accident victim. She is not the witness to the accident. In the cross examination, she has denied the suggestion that the accident occurred due to the negligence of her son. When two motor vehicles (bus and motor cycle) were involved in the accident, the claim petition is filed only against the bus owner and the insurer of the bus, as if the cause for the accident was due to the negligence of the bus driver. However, on analysis of the evidence, the Tribunal has held that the negligence of the deceased was the sole cause for the accident. It is evident that he rash and negligently rammed into the left side of the stationed bus. The FIR (Ex.P-2) registered by the police against Harikrishnan on 26/03/2008 was closed as abated, since Harikrishnan died on 31/03/2008.13. PW-2, has filed proof affidavit in lieu of chief examination wherein he has stated that, the accident occurred when the bus overtook the motorcycle and suddenly turned left tracing the motorcycle bearing registration No.TN 07 AH 7115 moving ahead of him. The motorcyclist hit the left rear side of bus and fell on the road. He sustained injury and taken to the hospital. To the police he gave statement and his address. The claimants got his address from the police and requested him to give evidence. This witness was cross examined by the learned counsel for the insurance company. In the cross examination, PW-2 has admitted that he has not filed any proof that he was present at the accident site. There is no proof that the police enquired him or he gave statement and his address to them. He have no other evidence to prove that he saw the accident. The Tribunal therefore disbelieved the evidence of PW-2. It had doubted, whether he really witnessed the accident.14. On re-appriciating the evidence in the appeal, this Court is of the view that the conclusion of the Tribunal attributing negligence on the part of the accident victim is based on the statement found in FIR (Ex.P-2). The first informant is the driver of the bus. He has stated that the two wheeler hit the rear side of the stationed bus. The police, which has investigated the case and the private investigator engaged by the Insurance Company, has concurrently concluded that the accident occurred due to the negligence of the two wheeler rider. Ex.R-1 is the report of the private investigator. In Ex.P-1 and Ex.R-1, it is stated that the accident victim was carrying his friend on the pillion. The best witness to speak about the accident is the pillion rider, who accompanied the victim. The said witness is not examined. PW-2 says that he saw the accident, while he was riding his motorcycle and coming behind the victim’s motorcycle. But, he had not even mentioned about the make, registration number of his motorcycle and also not whispered about the pillion rider, who accompanied the victim/rider. Therefore, the doubt recorded by the Tribunal about the presence of Pw-2 at the time of accident, is correct.15. The point now for consideration is whether, under Section 163-A of the Motor Vehicles Act, victim or his dependants are entitled for compensation dehors of the fact that the victim is the tortfeasor, who invited the accident voluntarily.16. Section 163 A of the Motor Vehicles Act, reads as follows:-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 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 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.]17. In Sunilkumar case relied by the appellant, the Division Bench of the Hon’ble Supreme Court unable to agree with the reasoning and the conclusion of the other Division Bench decision in National Insurance Company Limited-vs- Sinitha and others reported in (2012(2) SCC 356) referred the matter to the Larger Bench and Three Judges Bench of the Apex Court formulated the following question of law for resolution.“Whether in a claim proceeding under Section 163 A of the Motor Vehicles Act, 1988, it is open for the insurer to raise the defence/plea of negligence?”18. After due deliberation, the Larger Bench of the Hon’ble Apex Court concluded as under:-“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 ofthe Act does not specifically exclude a possible defence of the Insurer based on the 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 163A 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 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeidng under Section 166 of the Act, which would not only be self-contradictory but also defeat the very legislative intention.9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.”19. Following the above dictum laid in Sunil Kumar case, the Hon’ble Apex Court in Shivaji and others cited supra, after extracting the facts and decision of the courts below, reversed the decision of the High Court and held as under:-“3. The appellant filed a claim petition seeking compensation under Section 163A of the Motor Vehicles Act, 1988. The Tribunal noted that since the claim petition had been filed under Section 163A of the Act, the question of proving that the accident happened due to the rash and negligent act of the driver did not arise. By its award dated 30th July 2011, the Tribunal allowed a claim of Rs.4,60,800 together with interest at the rate of 9% per annum.4. The Insurer preferred an appeal before the High Court of Karnataka. The appellants also filed an appeal before the High Court seeking enhancement of compensation awarded by the Tribunal. The High Court, by its impugned judgment, allowed the insurers appeal and set aside the order of the Tribunal. The High Court opined that the idea behind enacting Section 163A is to ensure that even in the absence of any mistake on the part of the driver of the offending vehicle, the injured person or the legal heirs of the deceased person are compensated by the owner and the insurer. As a result, under this provision, since the victim has been contemplated to be an innocent third party, protection is extended only to the injured person or to the legal heirs of the deceased victim, and not to the driver who is responsible for causing the said accident. Since the deceased driver in this case was the tortfeasor and responsible for causing the accident, the High Court held that compensation could not have been awarded to the appellants.5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co.Ltd., v. Sunil Kumar & Anr., 1 wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is 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. The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would bring a proceeding under Section 163A of the Act at part with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.”20. The other judgment of the Hon’ble Supreme Court relied by the appellant is Chandrakanta Tiwari -vs- New India Assurance Company Ltd. and others: Reported in [CDJ 2020 SC 821]. In the said case, the claim petition was filed under Section 163-A by the dependants of the accident victim, who was travelling in the two wheeler on the pillion. The Tribunal awarded Rs.1,99,000/- with 6% interest. On appeal, the Uttarkand High Court reversed the order, holding the victim was in fact the rider of the two wheeler and not the pillion rider. On further appeal, the Hon’ble Apex Court held that,“A perusal of this provision ( Section:163 A) would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied). In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place.”21. The spirit and purpose of introducing Section 163-A in the statute succinctly explained by the Hon’ble Apex Court in Hansrajbhai -vs- Kodala reported in [2001(5) SCC 175], wherein it is observed that:“Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for non fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles.”22. While liability to pay compensation under this Act are determined based (i) on the principle of no fault liability (Section 140 of MV Act); (ii) special provision on structured formula without pleading or establishing the wrongful act/neglect/default of the vehicle owner or any other person(Section 163A ); and (iii)claim petition against the owner/insurer of the vehicle on whose wrongful act or neglect or default the accident occurred. (Section 166 of the MVAct). Claimants for compensation under the Motor Vehicles Act can be broadly classified into:-(a) claim by third party.(b) claim by the owner of the vehicle(insured) against his own insurer. (For own damages or under Personal Accident cover). (This category includes the borrower of the vehicle, who enters the shoes of the owner- ref: Ram Kiladi case).23. To understand, why there are three different Sections to claim compensation, what is the difference and why the difference, one have to read and compare sub-Section (4) of Section 140, sub-Section (2) of Section 163 A and Section 166 along with proviso to Sub-Section(2). For easy reference, these provisions are extracted below:-Section 140(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.Section 163(A)(2): Special provisions as to payment of compensation on structured formula basis.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.Section 166(1) in The Motor Vehicles Act, 1988:-(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 authorised 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 as respondents to the application.]Section 166(2):Application for compensation. -1 [(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.]24. Thus, a petition under Section 140 of the Motor Vehicles Act is sustainable, even if the victim is the tortfeasor. To maintain a petition under Section 163 A of the Motor Vehicles Act the claimant need not prove the fault of the offending vehicle against whom the claim made. A petition under Section 166 of the Motor Vehicles Act can sustain only if the fault is proved against the offending vehicle. Therefore, if the claimants contend that the petition under Section 163A is sustainable even if the accident victim is a tortfeasor, then there will be no difference between Sections 140 and 163 A (except the quantum of compensation either fixed or as per the structured formula under Second Schedule). Likewise if the insurer contend that the claimants under Section 163-A of the Motor Vehicles Act should prove the negligence of the offending vehicle, then there will be no difference between Section 163-A and Section 166 of the Motor Vehicles Act. Of course, the quantum of compensation, which will be as per structured formula, if the petition is under Section 163 A or based on data as to age of the victim, loss of income, loss of consortium, damages to property and other non-conventional heads, if the petition is under Section 166.25. The legislators with the object to compensate all category of motor accident victims had provided three different Sections. Perfect/Absolute tortfeasor, innocent victim and contributory victim. If the accident caused due to the victims own fault, he will fall under perfect/absolute torfeasor category. Such claimant under Section 140, will be entitled to a fixed sum of Rs.50,000 in case of death, or Rs.25,000/- in case of permanent disability. In case of innocent victim, if his income is less than Rs.40,000/- per annum and not sure to prove the negligence of the offending vehicle within reasonable time and also satisfied with pecuniary and general damages alone as per the Second Schedule, to expedite the claim he may resort to Section 163 A. He will be entitled for compensation as per the Schedule and not for any other special damages under non-conventional heads. If the victim income is more than Rs.40,000/- per annum or if the injuries does not fall within the definition of permanent injuries. The claimant cannot avail the advantage of Section 163A (2) of the Motor Vehicles Act. If the claimant is entitled and interested to get special damages under non-conventional heads, he shall necessarily resort only to Section 166 of the Act. At this juncture, it is also to be noted that the difference between Section 163(A) and 166 lie in the income cap of Rs.40,000/- p.a, and the exemption to prove negligence of the vehicle owner or vehicle concern or any other person. In case, the accident occurred involving two or more motor vehicle, both under Section 163 A as well as under Section 166, the Court has to look into the facts, whether the accident victim has contributed to the accident and if so, the percentage of contribution. Under Section 163A what is exempted is the burden to prove the negligence of the offending vehicle. It may not be appropriate to say even if the claimant himself is the offendor or the tortfeasor whatever negligence on the part of the victim, the same has to be ignored, if the petition is filed under Section 163 A.26. The language used in sub-Section (4) of Section 140 does not find place in Section 163(A). Provision similar to Section 140(4) is conspicuously absent in Section 163 A. It is not a causes omission but a conscious omission. It could be easily visualised that if the effect of Section 140(4) is imported into Section 163 A, which is consciously omitted by the legislators, then an absolute tortfeasor will be getting reward of his wrongful act/negligence/default from the owner of the vehicle or the insurance company though there is no statutory or contractual or even moral obligation to pay the tortfeasor.27. This Court put to itself an hypothetical question, whether the owner of the vehicle or the insurance company of the parked vehicle liable to pay compensation to the dependants of the deceased motor cyclist, if the motor cyclist with an intention to commit suicide voluntarily dash into a motor vehicle parked on the road margin? Prudence does not answer in positive. The language used in Section 163-A(2) that the claimant not required to plead or establish wrongful act/neglect/default of the owner can never be given an extended meaning by adding even if the accident victim is at absolute fault.(emphasis added). More particularly when the Legislators have though fit not to use such language employed in Section 140(4) in Section 163A. In such cases, the principle of ‘Volenti non fit injuria’ will apply.28. However, the Hon’ble Apex Court in Sivaji case, referring Sunilkumar case, has held that, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation

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. The Ramkiladi judgment relied by the respondent is in respect of the claim petition filed by the borrower of the vehicle against his vehicle owner and its insurer. It is not a third party claim but claim by the rider, who entered into the shoes of the owner. Hence, in Ramkiladi case, the Hon’ble Apex court has held that, the claimant is entitled not for compensation, unless the owner of the vehicle has paid premium for personal accident cover. Since in the instant case, the claimant is a third party against the other vehicle though not the offending vehicle judicial discipline command to follow the dictum of the Apex Court, hence the Tribunal award is set aside.29. The claimants/appellants are awarded compensation under Section 163 A, as per the structured formula provided under Second Schedule of the Act. The accident took place on 26/03/2008, the victim died on 31/03/2008. According to the driving license Ex P-7 the victim’s date of birth is 26/04/1985. So, the age of the deceased victim, on the date of accident therefore, was 23 years. Though the claimants have not filed any proof for income, Ex.P-5-certificate indicates the victim successfully completed the Diploma course in Office Automation. Further, PW-1, the first claimant, who is the mother of the victim in her cross examination had admitted that she received Rs.1,00,000/- compensation from the insurance company for the death of her son in the road accident. The report Ex.R-1 discloses that the employer of the deceased had provided life insurance cover to the victim, hence, Rs.1,00,000/- being the sum insured was paid to the dependants. This fact lead to the inference that the victim was gainfully employed. Therefore, his annual income is taken as Rs.40,000/-. As per the second schedule, Rs.7,20,000/- is the compensation fixed under the slab 20 to 25 years old victim earning Rs.40,000/- p.a. After deducting 1/3rd towards the personal expenses, the loss is fixed as Rs.4,80,000/-. Under general damages, additional sum of Rs.2,000/- for funeral expenses and Rs.2,500/- for loss of estate is awarded as per the schedule.30. Thus, the claimants are equally entitled for an award of Rs.4,84,500/- and the same shall be paid by the 2nd respondent/insurance company with interest at the rate of 7.5% from the date of numbering the petition( i.e.) 21/04/2008 till the date of deposit. The period of 386 days delay in filing the appeal is excluded from computing interest. If any amount already paid, the same shall be deducted. The 2nd respondent/insurance company is directed to deposit the award amount with accrued interest within 12 weeks from the date of receipt of the award copy, (less the amount already deposited, if any). On such deposit, the claimants 1 and 2 are permitted to withdraw the award amount with accrued interest and share the same equally.31. Accordingly, the Civil Miscellaneous Appeal is allowed. No order as to costs.
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