United India Insurance Company Limited v. Radha Rani Sapra & Ors.

Mr. Ravinder Arora, Advocate, for the appellant. Mr. S.N.Yadav, Advocate, for respondents 1 to 3. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.

1. The only point urged in the appeal is whether the claimant, who had filed a petition for compensation under Section 166 MV Act, could in the course of trial, alter his plea for consideration on a structured formula basis provided under Section 163-A. It was the contention of the claimant that the deceased was earning Rs.10,000/- per month but at the trial, he could not offer proof of the same and wanted consideration of the deceased’s monthly income only as Rs.3,200/- and for relief under Section 163-A. The Tribunal granted such a relief and ultimately proceeded to pass an award granted Rs.4,27,400/- as compensation.

2. The learned counsel for the Insurance Company contends FAO No.1493 of 2008 (O&M) - 2 - that such a plea is not possible and refers me to the Division Bench decision of this Court in Himachal Road Transport Corporation and another Versus Baldev Kumar Nayyer and other-2006(2) PLR 75, that held that a Tribunal could not treat the petitions filed under Section 166 of the Act as petitions under Section 163-A of the Act by restricting the income to Rs.40,000/-. In my view, this judgment must be understood one, as not allowing a suo moto consideration by the Tribunal itself for a claim under Section 166 to be taken as claim under Section 163-A. Two, it cannot also enable a Tribunal to treat an income which is in excess of Rs.40,000/- to be exactly the amount of Rs.40,000/- and consider the case under Section 163-A. A deliberate scaling down of income at Rs.40,000/- to apply Section 163-A is different from the claimant's inability to prove income in excess of Rs.40,000/- or the Tribunal finding that there was no income in excess of Rs.40,000/- and the income was only less than Rs.40,000/-. In either case, it shall be possible for a Tribunal to proceed to adjudicate a claim under Section 163-A. The decision of the Hon'ble Supreme Court in Deepal Girish Bhai Soni Versus United India Insurance Company Limited, Baroda-2004 ACJ 934, explaining the scope of Section 163-A in the context of whether it is a final award or an interim award cannot be understood as denying the entitlement of a claimant to make an amendment of his pleading for a consideration under Section 163-A on appropriate factual basis or take away the jurisdiction of a Tribunal to apply the provisions of Section 163-A on the request of the petitioner when it makes an assessment that the income from the deceased was less than only Rs.40,000/-. The power FAO No.1493 of 2008 (O&M) - 3 - of the Court to make an amendment what is barred by law is only for making a claim under both Sections 166 and 163-A, for, in terms of the Deepal Girish Bhai Soni, the award passed under Section 163-A is final and not interim in nature in the manner that Section 140 provides. The non-maintainability of a petition under both the Sections was dealt with by this Court in Ms.Kamlesh Choudhary Versus Kanwar Bhan-2003(1) . PLR 613: 2003 (1) RCR (Civil) 394

3. The power of the Court to make an amendment, who in the original petition had stated that an annual income of more than Rs.40,000/- to an amount less than the said amount and a consequent claim under Section 163-A was found to be maintainable in New India Assurance Company Limited Versus Sanjeev Kumar and another-2010 (1) AICJ 243; 2010 (2) RCR (Civil) 58 (P&H); New India Assurance Company Limited Versus Nagijdhai Danji Bhai Gadesara-2009 ACJ 883 (Guj); Gurmeet Kaur Versus Hardeep Singh and another-2005 (2) PLR 503; 2005 (2) RCR (Civil) 149 (P&H); Ravinder and another Versus Subhash Chand and another-2006(2) PLR 108; 2006 (2) RCR

525. This is not the same thing as where an annual income was shown to be more than Rs.40,000/- and an amendment being sought to be made to reduce the claim to Rs.32,000/-. Such a notional scaling down has been held by this Court to be not possible in Sadhna and another Versus Kuldeep Singh and others-2009(2) PLR 763: 2009(3) RCR 754.

4. If during the proceedings, an amendment is possible to bring the claim in the case in conformity with the facts disclosed and evidence available, there is no reason why a Tribunal on the basis of evidence, FAO No.1493 of 2008 (O&M) - 4 - when it finds that the income was less than Rs.40,000/- cannot apply the provisions of Section 163-A. The Motor Vehicles Act which contains provisions relating to claim for death or bodily injuries must be so interpreted as to advance the cause of jurisdiction for victims on road accidents. Every endeavour must be made to accommodate the claims and not throw them out on technicalities. Parties are invariably guided by advice of counsel and there could be a tendency to exaggerate the claim initially at the time when the petition is filed. Real appraisal of status relating to income comes about only at the time of trial and if at the trial therefore, a claimant can secure evidence only for a lesser amount than what was originally declared, scaling down a claim and to plead for appropriate reliefs which the law provides ought not to be rejected. The Insurance Company, of all persons, shall not be parties to take up such pleas and make attempts to defeat the claim of the claimants. An insurer is not an adversary like a normal civil litigant. The business of insurance company is to pay. Any defence that it may take shall fall squarely within the four corners of Section 149(2). No other defence shall be permissible except jurisdictional issues like non-involvement of the vehicle or a plea of no insurance for the vehicle which is alleged to have been involved in the accident.

5. The award passed by the Tribunal, under the circumstances, is justified and the appeal is dismissed.

28.09.2010 sanjeev (K.KANNAN) JUDGE