Judgment · High Court · 2012

The findings as returned by the Tribunal as regards the death of Ashananda Mandal on 20.07.2005 while in the course of his employment he was doi ng some repairing work of the vehicle No. ML-09-2608 (Truck) and for sudden fail ure of the jack the deceased received the fatal injuries leaving the claimants a s his dependants are not in dispute by either of the parties or in the appeal. A s such those findings stand affirmed requiring no further appraisal. [3] The question that has been projected in the appeal emanates from the finding of the Tribunal where it has been observed as under: (cid:28)The PW1 nowhere pleaded or deposed that the accident had taken place due to the rash and negligent driving of the offending vehicle by its driver and the claim has suffered from the basic requirement of Section 166 of the Motor Vehicles Ac t, 1988 which resulted in the dismissal of the claim. (cid:29) Mr. S. K. Goswami, learned counsel appearing for the appellant q [4] uite succinctly submitted that the accident arising out of the motor vehicle can not disputed by any one. He referred a decision of this Court in Motor Workers C o-Opp. Society Ltd. Vrs. New India Assurance Co. Ltd., as reported in 1999 (3) GLT 176 where it has held by this Court as under: (cid:28)5. The policy indicated in the aforesaid case covers the cases for compensation in motor vehicle accidents. The word (cid:28)use of a motor vehicle (cid:29) coves accidents w hich occur both when the vehicle-in-question is on motion as also when it is sta tionary. Here in the instant case, the bomb exploded inside the bus when it was standing/stationary and therefore, the accident had arisen out of this use of th e vehicle-in-question. That apart, when the accident took place on 10.02.89, the Bongaigaon district was not declared as a terrorist affected area and the vehic le was duly covered by the Insurance Policy, without any default on that part o f the owner in payment of the insurance premium; nor had the insurance lapsed du ring the relevant period of time. The insurance Company in the circumstances can not avoid its liability of payment of compensation. (cid:29) ndent No. 1, the United India Insurance Co. Ltd. is also not in dispute. In this case, the insurance coverage of the vehicle by the respo [5] Mr. M. Dutta, learned counsel appearing for the respondent No. 1 submitted quite strenuously that unless there is proof of negligence which rema ins sine qua non for grant of compensation under Section 166 of the Motor Vehicl es Act, 1988 no award can be made by the Tribunal by way o f granting compensati on. He referred a decision of this Court in United India Insurance Co. Ltd. Vrs. H. Lalhmingliana and Anr., as reported in 2006 (2) GLT 538 where this Court hel d as under: (cid:28)( 34 ) Setting at rest the controversy as to whether Section 163A would cover t he cases, wherein negligence of the victim was the cause of the accident, the Ap ex Court in Deepal Girishbhai Soni and Ors. Vs. United india Insurance Co. Ltd. (2004) 5 SCC 385, observed thus. We may notice that Section 167 of the act provi des that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen’s Compensation act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contain s different expressions as, for example, \under the provision of the Act\, \provisions of this Act\, \under any other pro visions of this Act\ or \any other law or otherwise\. In section 163A, the expre ssion \notwithstanding anything contained in this Act or in any other law for th e time being in force\ has been used, which goes to show that Parliament intende d to insert a non obstante clause of wide nature which would mean that the provi sions of Section 163A would apply despite the contrary provisions existing in th e said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way o f an exception to Section 166 and the concept of social justice has been duly ta ken care of.\ ( 35 ) In the face of the position of law, so clearly pronounced by the Apex Cou rt in Deepal Girishbhai Soni (supra), there can be no escape from the conclusion that it is permissible even for a driver, whose own wrongful act, neglect or de fault might have formed the cause of the accident resulting into his own injurie s, to maintain an application for compensation under Section 163A. Considered th us, it is clear that in the present case, the application made under Section 163 A of the Act could not have been rejected merely on the ground that it was the c laimant, whose negligence, as a driver, had caused the said accident. (cid:29) [6] Mr. Dutta further stressed on the observation as under: (cid:28)(36) Now, turning to the question as to whether, a proceeding under Section 166 can be converted into a proceeding under Section 163 A of the MV Act, 1988 (in short ’the MV Act’), and compensation can be awarded on the basis of the provisi ons of section 163A, it is of paramount importance to note that the claimant ins tituted a proceeding under Section 166 of the MV Act. For sustaining a claim und er Section 166 of the M.V. Act, the claimant has to establish that the accident, in question, took place due to rash and negligent driving of the vehicle, whose owner and insurer is liable to pay the compensation, for, an application for co mpensation under Section 166 is, basically, an application for compensation agai nst tortuous liability of the owner of the vehicle involved in the accident. For establishing tortuous liability, negligence on the part of the owner of the veh icle, in question, must be established unless the law enacted, in this regard, p rovides otherwise. By incorporating provisions, such as, Section 140 and 163A, t he legislature has absolved a claimant from proving, if he chooses, fault on the part of the driver of the vehicle or any rashness or negligence in the use of t he vehicle at a public place. (37) As against the proof of the fault, which the nature of a claim proceeding i nitiated under Section 166 demands, when a claim under Section 163 A is made, th e claimant need not prove fault on the part of the driver of the vehicle. This i s the basic difference between an application made under Section 166 and an appl ication filed under Section 163 A. This apart, the application under Section 140 , which relates to the realization of a fixed amount of money as compensation wi thout proof of fault, can be resorted to, as an interim arrangement, when an app lication for compensation is made under Section 166 and not when an application is made under section 163A of the MV Act, for, the amount paid under Section 140 merges with the award finally given by a Tribunal under Section 168 of the MV A ct arising out of an application made under Section 166 thereof. This is clean f rom the provisions of Section 163 B, which lays down, in no uncertain words, tha t where a person is entitled to claim compensation under Sections 140 and 163A, it shall file claim under either of the said Section and not under both. (cid:29) [7] This Court has further observed in Bina Prasad Sonari Vrs. Manag er, United India Insurance Co. Ltd. and Ors., as reported in 2005(25) AIC 849 Ga u. Observed and held as follows: \an application for compensation can be made either under Section 166 or under S ection 163 A of the said Act. If the application is under section 163 A, the que stion of proving the negligence on the part of the driver of the offending vehic le does not arise at all; rather, in a case, wherein compensation is claimed und er Section 163A, on proof of the accident, age of the deceased, the income of th e deceased and the relationship of the claimant with the deceased, the structure d formulae, contained in the Second Schedule framed under Section 163A, would be applied. However, when the claim application is made (as is the case at hand) u nder section 166, the claimant has to prove negligence on the part of driver of the offending vehicle and only on such a proof being made available to the Tribu nal, the Tribunal can determine the amount payable to the claimant as compensati on and for determining the amount of compensation, the structured formulae may b e used as the guide. For applications made under Section 166, the provisions for payment of no-fault liability amount has been made under Section 140 of the sai d Act. Section 140 is, thus, applicable only if the compensation is claimed unde r Section 166. That no-fault liability amount cannot be made available to an app licant under Section 163A is clear from the provisions of Section 163b inasmuch as Section 163b gives every claimant the option to either make an application un der Section 140 for no-fault liability amount pending determination of the compe nsation claimed under Section 166 or lodge a claim for determination of compensa tion, as a whole, under Section 163 A, by using the structured formulae containe d in the Second Schedule. Thus, the question of applying for payment of no-fault liability amount under Section 140 does not arise at all if the claim applicati on is under Section 163A\ [8] der: (cid:28)( 39 ) We completely agree with the position of law laid down in Bina Prasad So nari (supra ). This Court in H. Lalhmingliana(supra) has further observed as un (40) We may pause here to point out, once again, that no provision, such as, the one that we have, now, in the form of Section 163A, existed in the Motor Vehicl es Act, 1939, which preceded the enactment of the Motor vehicles Act, 1988. Such a provision did not also exist in the Motor Vehicles Act, 1988, when this Act c ame into force. As a matter of fact, Section 163A has been introduced by the ame ndment Act No. 54 of 1994 with effect from 14. 11. 1994 as against the fixed min imum interim compensation awardable under section 140 of the MV Act on the princ iple of no-fault, which merges in the final award to be made on the basis of ’fa ult liability’ in accordance with Section 141, Section 163A allows a victim of a motor vehicular accident to obtain a final award of compensation based on the s tructured formula contained in the 2nd schedule to the Act and such compensation may be obtained without the claimant being required to plead or establish that the injuries sustained or death caused was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other perso ns. The compensation finally payable under section 163A is materially different from the minimum prescribed compensation payable under Section 140, though both these provisions dispense with the proof of negligence on the part of the owner of the vehicle or vehicles concerned or of any other persons. In short, proof o f negligence is not necessary for availing compensation either under Section 140 or 163A. (41) The present MV Act provides an option to the claimant to obtain interim com pensation under Section 140 being the minimum prescribed compensation until fina l adjudication of his claim, under section 166, leading to the delivery of the a ward in which would get merged the interim compensation, if any, already receive d by the claimant under section 140. The other course, which the claimant can op t for, is to obtain a final award of compensation on the basis of structured for mula as depicted in the 2nd Schedule under section 163 A. The provisions embodie d in section 166 as well as under Section 163A have both advantages as well as d isadvantages appended thereto. For instance, while section 166 requires proof of fault as a condition precedent for granting of compensation, there is no ceilin g in the amount of compensation, which can be granted under Section 166, and, fu rther, Section 166 can be resorted to irrespective of the income of the person, who has sustained injuries or met with death. As against this, while Section 163 A dispenses with the proof of fault, this Section (i. e. Section 163A) can be re sorted to only when the annual income of the deceased does not exceed Rs. 40,000 / -. Similarly, while in section 166, as already indicated hereinabove, there is no limit to which expenses for treatment incurred by the injured can be awarded , the total medical expenses to be awarded cannot, in a proceeding under section 163A, exceed Rs. 15,000/ -. There are several other such limitations if one tak es recourse to Section 163A for obtaining compensation. For instance, the loss o f consortium-under Section 163A is limited to Rs. 5,000/-, whereas, in the light of the decision in Lata Wadha and Ors. Vs. State of Bihar and ors. , reported i n (2001) 8 SCC 197, the consortium can be, in an appropriate case, as high as Rs . 50,000/ -. Yet another advantage of taking recourse to Section 163A is that it reduces the delay, which, ordinarily, occurs due to the fact that the claimant is required to prove fault. Noticing some of these prominently distinguishing fe atures of Section 163A, the Apex Court in Deepal Girishbhai soni and Ors. Vs. Un ited India Insurance Co. Ltd. , reported in 2004 (5) SCC 385, observed as follow s : \section 140 of the Act dealt with interim compensation but by inserting Section 163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident the Amendment was, thus, a deviation from th e common law liability under the Law of Torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specif ied category. The heirs of the deceased or the victims in terms of the said prov isions were assured of a speedy and effective remedy which was not available to the claimants under Section 166 of the Act chapter XI was, thus, enacted for gra nt of immediate relief to a Section of people whose annual income is not more th an Rs. 40,000/-having regard to the fact that in terms of section 163-A of the A ct read with the Second schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his in come but also the other factors relevant therefore. An award made thereunder, th erefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the second Schedule appended to the act. The same is not interim in nature. *** **** **** **** Payment of the amount in terms of Section 140 of the Act is adhoc in nature. A c laim made thereunder, as has been noticed hereinbefore, is in addition to any ot her claim which may be made under any other law for the time being in force. Sec tion 163-A of the Act does not contain any such provision. *** *** *** if no amo unt is payable under the fault liability or the compensation which maybe receive d from any other law, no refund of the amount received by the claimant under Sec tion 140 is postulated in the Scheme. Section 163-A, on the other hand, nowhere provides that the payment of compensation of no-fault liability in terms of the structured formula is in addition to the liability to pay compensation in accord ance with the right to get compensation on the principle of fault liability\. (42) That one is required to prove fault to become entitled to receive compensat ion under Section 166 and that the recourse to Section 140 can be had as an inte rim arrangement subject to final determination can be easily discerned from the observations made in Deepal Girishbhai Soni (supra), which runs as follows : \the Scheme envisaged under Section 163-A, in our opinion, leaves no manner of d oubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000/- or less is cove red thereunder; whereas Section 140 and 166 cater to all Sections of society. ** * *** *** it may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163 A of the act, as the case may be, but the same was inserted ’ex-abundanti cautela’ so as to remove an y misconception in the mind of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for la ying a claim on fault liability, the question of giving an option to the claiman t to pursue their claims either under Section 163-A or Section 166 does not aris e. If the submission of the learned counsel is accepted the same would lead to a n incongruity\. (43) From what have been pointed out above, it becomes abundantly clear that the present MV Act lays down two comprehensive and independent, but complete in its elf, mechanism for receiving compensation for injuries sustained or death caused in motor vehicular accidents. Both the schemes for compensation, one conceived under Section 166 and the other perceived by Section 163A, are mutually exclusiv e and independent of each other and it is for a person, who wants to claim compe nsation, to decide as to which procedure or mechanism he or she would opt for. (44) In the face of clearly laid down schemes for obtaining compensation under t he two sections, namely, Section 166 and Section 163A and when it is left with t he claimant to choose the course of action, no one can maintain a claim both und er Section 166 as well as Section 163A. The MV Act also does not conceive of a s ituation, when, based on an application made under Section 166, the Tribunal, on its own, on the failure of the claimant to prove fault, can award compensation by taking recourse to Section 163A. When a claimant makes an application for com pensation under Section 166 and also receives interim compensation under Section 140, he shall, so long as his application for compensation remains pending unde r Section 166, prove, as a condition precedent for succeeding in obtaining compe nsation under Section 166, that the accident took place due to fault or negligen t or default of the owner or owners of the vehicle or vehicles concerned or of a ny other persons. (45) The above aspect of law has been succinctly explained by the Apex Court, in Deepal Girishbhai Soni (supra), in the following words: \the question may be considered from different angles. As for example, if in the proceedings under Section 166 of the Act, after obtaining compensation under Se ction 163-A, the awardee fails to prove that the accident took place owing to ne gligence on the part of the driver or if it is found as of fact that the decease d or the victim himself was responsible therefore as a consequence whereto the T ribunal refuses to grant any compensation; would it be within its jurisdiction t o direct refund either in whole or in part the amount of compensation already pa id on the basis of structured formula? Furthermore, if in a case the Tribunal up on considering the relevant materials comes to the conclusion that no case has b een made out for awarding the compensation under Section 166 of the Act, would i t be at liberty to award compensation in terms of Section 163-A thereof. The ans wer to both the aforementioned questions must be rendered in the negative. In ot her words, the question of adjustment or refund will invariably arise in the eve nt if it is held that the amount of compensation paid in the proceedings under S ection 163-A of the Act is interim in nature. \ (46) Embedded, thus, in the scheme of section 166 is the requirement for the Tri bunal to frame an issue or for the claimant to, at least, bring on record materi als as regards fault or neglect or default, as indicated hereinbefore, in order to sustain his claim under section 166. If in a proceeding under section 166, th e claimant obtains interim compensation under Section 140, but adduces no eviden ce to prove fault or negligence or default, his application under Section 166 ca nnot succeed and the Tribunal cannot award compensation on the basis of the stru ctured formula by taking recourse to Section 163-A, for, it is for the claimant really to decide which course of action he or she shall opt for. Whether it is, on the basis of an application for amendment made by the claimant, permissible t o amend a proceeding under Section 166, to one under Section 163A is a question, which has not arisen in the present appeal and we are not inclined to make any comment on this aspect of the matter. (47) Now, turning to the question as to whether it is permissible for a Tribuna l to allow a claimant to amend his application from the one made under Section 1 66 to an application under Section 163A, what needs to be noted is that the foun dation for making an application in both the proceedings are fundamentally diffe rent, for, while in an application under Section 166, fault on the part of the d river of the vehicle involved in the accident must be proved, the proof of such fault is dispensed with, when an application is made under Section 163A. Thus, a s already indicated hereinabove, the legislature has provided a claimant with tw o different schemes for claiming compensation. While the accident itself gives c ause of action for relaxation of compensation under Section 163A, the cause of a ction for sustaining a claim under section 166 is not merely the accident, but a tortitious act of failing to take care, which the owner or the driver of the ve hicle owes to the injured or the deceased as the case may be. However, in either case the foundation for the claim is the accident, for, even in a claim made un der Section 166, the accident forms an integral and inseverable part of the caus e of action. This apart, the MV Act is a benevolent legislation and, hence, this enactment needs to be liberally construed. Construed thus, it is abundantly cle ar that the cause of action in both the proceedings, namely, the proceeding unde r Section 166 and 163 A are not wholly alien to each other inasmuch as at the ro ot of both the claims lies the accident. Whether in a given case the Court shall permit the amendment of a proceeding under section 166 to one under Section 163 A is a question, which would depend on the facts of the given case, for, there m ay be case where the injured or the deceased does not fall in the limited income group of Rs. 40,000/- per annum, if a claimant does not fall in the income grou p of persons for whom the provisions of section 163A are incorporated, the tribu nal may decline to allow the amendment of the proceeding under Section 166 to on e under Section 163A. (cid:29) On the basis of that Mr. Dutta, learned counsel appearing for th [9] e respondent No. 1 submits that the categorical case of the claimants as would b e available from the deposition as filed by way of affidavit is as under: (cid:28)That I Sri Biswanath Mandal and my wife Smt. Akadashi Mandal being the Father a nd Mother of Late Ashananda Mandal claimed compensation for the death our son in a vehicular accident on 20.07.2005 at about 9.00 A.M. when my son was working under the vehicle No. ML-09/2608 as a handyman near Maa Kamakhya Garage, Dudhnoi . Instantly Jack fitted on the front wheel of the truck fell down on his head an d died on the spot. Postmortem was conducted at Goalpara Civil Hospital and dead body was handed over to us for last rites. He was 22 years of age at the time of death and was unmarried. He use to earn Rs. 2,500/- per month. He was working as handiman of the truck belongs to Md. Hasim Ahmed. He being the eldest son h e use to look after us and my other children. Due to the sudden death one of the earning member of the family is facing great economic hardship as I have no reg ular source of income. I have claimed Rs. 8,00,000/- as compensation. (cid:29) [10] From the readings of the claim petition as well as deposition of the claimant-appellant namely Biswanath Mandal it is apparent that nowhere the rash and negligent driving as the cause of the accident has been pleaded and no attempt was made to prove the rash and negligent driving. Mere writing on the bo dy of the petition that the said petition under Section 166 of the Motor Vehicle Act shall not always provide the basis for claim under Section 166 of the Motor Vehicles Act. The Tribunal has also certain duty under Section 168 of the Motor Vehicle Act to ascertain whether the claim petition as filed under Section 166 of the M.V. Act is actually a petition under Section 166 of the M.V. Act or not. The scheme of the M.V. Act, 1988 is to protect the interest of the accident vic tims not to frustrate the claims by adopting a hyper technical approach. This pe tition is required to be treated as a petition filed under Section 163A of the M otor Vehicles Act. This Court in exercise of its power as provided under Order V I Rule 17 of the CPC read with Section 151 CPC and Section 168 of the Motor Vehi cles Act has converted this petition under Section 163A of the M.V. Act as the s aid provisions as extracted provide that the Court may at any stage of the proce eding amend the petition and such amendment has to be made on such term as may b e just and all such amendments shall be carried out as may be necessary for purp ose of determining the real questions in controversy. For purpose of determining the real questions in the controversy, the claim petition having been treated a s a petition filed under Section 163A of the Motor Vehicles Act, 1988, the findi ngs of the tribunal cannot be allowed to stay any further. Thus the impugned jud gment and order is set aside. It has been claimed that the deceased used to earn Rs. 2,500/- per month as the workman of the vehicle involved in the accident. C onsidering the relevant wage pattern at the relevant point of time as well as t he Ext. 3 document, the actual monthly income of the deceased is assessed at Rs. 2,000/-. The father of the deceased has stated in the Court that his son was ag ed about 22 years at the time of the accident, even though in the post mortem re port (the Ext. 2 document) the age of the deceased has been shown as 19 years. I n this context, the statement of the father is of much relevance and as such, ag e of the deceased is taken as 22 years. Since the deceased was a bachelor and pa rents are the claimants, for that reason, for selecting the multiplier, age of t he deceased would have no relevance but of the parents. It appears from the stat ement that the claimant No. 1 namely Biswanath Mandal was aged about 48 years. S ince the age of the mother is not available the multiplier has to be chosen on t he basis of the age of the father. The appropriate multiplier as such would be ’ 13’. Now, the loss of earning can be assessed in the following terms: The annual income of the deceased in view of the monthly income as assessed at Rs. 2,000/-is Rs. 24,000/-. 50% of the said annual income has to be deducted. Thus after deduction the same comes to Rs. 12,000/-. The loss of de pendency accordingly arrived at Rs. 12,000 X 13 = Rs. 1,56,000/-. With the said sum Rs. 5,000/- for funeral expenses and Rs. 10,000/- for loss of estate be adde d. Thus total compensation comes to Rs. 1,71,000/-. The said amount shall carry interest @ 6% per annum from the date of filing of the claim petition till the p ayment is made. The respondent No. 1, the United India Insurance Co. Ltd. shall pay the awarded sum with interest within a period of two months from today in th e Tribunal. [11] For the reasons as discussed above, this appeal stands allowed t o the extent as indicated above. However, there shall not be any order as to cos ts. [12] LCRs be sent down forthwith.