PREM DEVI & ORS. vs. JAGDISH KUMAR & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

th
Reserved on: 18 May, 2012
nd
Pronounced on:2 July, 2012
+ FAO 398/2000
PREM DEVI & ORS. ..... Appellants
Through Mr. Alok Singh, Advocate
versus

JAGDISH KUMAR & ORS. ..... Respondents
Through Mr. Pankaj Seth, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL

J U D G M E N T
G. P. MITTAL, J.
1. The Appeal is directed against the judgment dated 18.07.2000
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a Claim Petition preferred under Section 166
of the Motor Vehicles Act, 1988 (the Act) was dismissed on the
ground that the negligence on the part of the First Respondent,
driver of the bus No.DEP-7727 was not established.
2. At the time of filing of the Appeal, a submission was made by
the learned counsel for the Appellants that they (the Appellants)
would move an application for additional evidence so as to
examine the Investigating Officer (IO) and to produce some
documents to show the circumstantial evidence regarding the
negligence of the driver (the First Respondent). No such
application was moved. At the time of hearing of the Appeal, a
FAO 398/2000 Page 1 of 12


statement was made by the learned counsel for the Appellants
that the Appeal may be converted to one under Section 163-A
of the Act and the compensation may be awarded on the basis
of the structured formula.
3. The prayer is opposed on behalf of the Third Respondent, the
National Insurance Company Limited. Reliance is placed on
Paras 58 to 60 of the report in Deepal Girishbhai Soni & Ors. v.
United India Insurance Co. Limited, Baroda, AIR 2004 SC 2107
to contend that conversion of a Claim Petition from Section 166
of the Act to one under Section 163-A of the Act is not
permissible once the Petition under section 166 is decided.
Paras 58 to 60 of the report in Deepal Girishbhai Soni (supra)
are extracted hereunder:-
“58. In Oriental Insurance Company Ltd. v. Hansrajbhai
V. Kodala (2001) 5 SCC 175 the contention of the
claimant that the right to get compensation is in addition
to the no-fault liability was, thus, rightly rejected. In
agreement with Kodala (supra) we are also of the
opinion that unlike Sections 140 and 141 of the Act
Parliament did not want to provide additional
compensation in terms of Section 163-A of the Act.
59. 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 Section 163-A, the awardee fails to prove that the
accident took place owing to negligence on the part of
the driver or if it is found as of fact that the deceased or
the victim himself was responsible therefor as a
consequence whereto the Tribunal refuses to grant any
compensation; would it be within its jurisdiction to direct
FAO 398/2000 Page 2 of 12


refund either in whole or in part of the amount of
compensation already paid on the basis of structured
formula? Furthermore, if in a case the Tribunal upon
considering the relevant materials comes to the
conclusion that no case has been made out for awarding
the compensation under Section 166 of the Act, would it
be at liberty to award compensation in terms of Section
163-A thereof?
60. The answer to both the aforementioned questions
must be rendered in the negative. In other words, the
question of adjustment or refund will invariably arise in
the event if it is held that the amount of compensation
paid in the proceedings under Section 163-A of the Act is
interim in nature.”
4. In Deepal Girishbhai Soni (supra) the facts were that the
Appellants filed two Claim Petitions under Sections 163-A and
166 of the Act claiming compensation of ` 4,97,800/- for the
death of their mother Ms. Prabhaben and a sum of ` 17,30,900/-
for the death of their father Shri Girishbhai Soni. On the basis
of the proceedings under Section 163-A an interim
compensation of ` 4,20,500/- and ` 11,74,500/- respectively was
awarded. The Respondent Insurance Company being aggrieved
by the order, preferred Appeals before the High Court of
Gujarat at Ahmedabad. The High Court reduced the quantum of
compensation in view of the cap of an annual income of
` 40,000/- under Section 163-A of the Act. The question before
the Supreme Court was whether the proceeding under Section
163-A of the Act is in the nature of interim relief or final relief.
The Supreme Court traced the history of enactment of Section
163-A, analyzed the provision of Section 140, 163-A and 166 in
FAO 398/2000 Page 3 of 12


detail and approved the decision of the two Judge Bench in
Oriental Insurance Company Ltd. v. Hansrajbhai V. Kodala
(2001) 5 SCC 175 and held that the determination of the
compensation under Section 163-A of the Act is in the nature of
a final determination of the compensation. The Claimant is not
entitled to simultaneously move an application under Section
163-A and 166 of the Act. The observation of the Supreme
Court in Para 59 of the report in Deepal Girishbhai Soni (supra)
at best can be construed to have laid down that the Court cannot
suo moto convert the petition under Section 166 of the Act to
award compensation under Section 163-A of the Act where the
negligence is not proved.
5. It is well settled that the Appeal is in continuation of the Suit.
( Bay Berry Apartments (P) Ltd. & Anr. v. Shobha & Ors.,
(2006) 13 SCC 737 and Rachakonda Narayana v. Ponthala
Parvathamma & Anr. (2001) 8 SCC 173).
6. The Claimant who impugns a judgment of the Claims Tribunal,
which is passed on a Petition under Section 166 of the Act, thus,
cannot be deprived of his right to amend the petition from one
under Section 166 of the Act to under Section 163-A of the Act
in appropriate cases.
7. It is well settled that the Petitions under Section 163-A of the
Act and 166 of the Act cannot be filed simultaneously and even
in a Petition under Section 166 of the Act, an interim relief
under Section 163-A of the Act cannot be claimed. (Per:
FAO 398/2000 Page 4 of 12


Deepal Girishbhai Soni & Ors. v. United India Insurance Co.
Limited, Baroda, AIR 2004 SC 2107).
8. The question would be whether on dismissal of a Petition under
Section 166 of the Act, the Claimant/Claimants would be
debarred from moving an application under Section 163-A of
the Act.
9. The question can be analysed from a different angle. If a
Petition under Section 166 of the Act is dismissed for want of
proof of negligence on the part of the alleged tortfeasor, would
a subsequent petition under Section 163-A on the same cause of
action be barred. Admittedly, in the subsequent petition under
Section 163-A of the Act, the Claimant would not be required to
prove and plead the negligence. The subsequent petition would
not be barred under Order II Rule 2 CPC as the claim under
Section 163-A of the Act was not permissible in the earlier
petition. The finding in the earlier petition would also not be
res judicata against the Claimant, unless a finding is given by
the Court that the vehicle alleged to be involved in the accident,
was not involved in the accident. Thus, when there is no
prohibition or embargo on filing a petition under Section 163-A
after dismissal of a Petition under Section 166 of the Act, a
victim cannot be debarred from amending a Petition under
Section 166 to one under Section 163-A of the Act.
10. The question of conversion of a Petition under Section 163-A of
FAO 398/2000 Page 5 of 12


the Act into one under Section 166 of the Act came up before
the Bombay High Court (Aurangabad Bench) in New India
Assurance Company Limited v. Ashabai Kalyan Kothi & Ors.
2009 ACJ 163, where it was held as under:-
“15. The Tribunal as well as this Court always has a
power to allow the conversion of a claim petition under
Section 163-A into a claim petition under Section 166 of
the said Act. The procedure is always a handmaid of
justice. We are dealing with a beneficial legislation
which provides for payment of compensation to the legal
representatives of the victims of an accident involving a
motor vehicle. The power of the Tribunal or this Court to
allow conversion of the claim petition is discretionary.
While exercising the discretion of allowing conversion,
no doubt, the conduct of the claimants will be relevant. In
a given cases, such as the case before the Division Bench
in the case of New India Assurance Company Limited v.
Rukhminibai Ashok Gore, FA No.1349 of 2004; decided
on 2.3.2007, the Court can refuse to exercise the
discretion. In the present case, the conduct of the
claimants is not such that the discretion should not be
exercised in their favour. The claim petition was filed
through an Advocate after setting out a specific case that
income of the deceased was Rs.4000/- p.m. The said
stand was reiterated by the first respondent No.1 in the
Affidavit in lieu of examination-in-chief. It cannot be said
that the action of invoking Section 163-A was deliberate.
The claimants have obviously acted as per legal advice.
In my view this is a case where the claim petition under
Section 163-A should be allowed to be converted into a
petition under Section 166 of the said Act. ”

11. The learned Single Judge of this Court in Rukmani Devi v. New
India Assurance Company Limited & Anr., 2009 ACJ 2202 held
that the provision for award of compensation under the Motor
FAO 398/2000 Page 6 of 12


Vehicles Act is a beneficial piece of legislation and, therefore,
an endeavour has to be made to see as to how best the intention
of legislation can be achieved so as to safeguard the interest of
victims of the accident. In para 14 it was held as under:-
“14. Another question which is of the vital importance is
whether the petition filed under Section 166 of the Motor
Vehicles Act or visa-versa can be allowed to be
converted into a petition under Section 163-A of the
Motor Vehicles Act and if the answer is yes, then what
should be the stage for allowing such a petition. There
cannot be any dispute that Motor Vehicles Act is a
beneficial piece of legislation and therefore, endeavour
has to be as to how best the intention of the legislation
can be achieved so as to safeguard the interest of the
victims of the accident rather than defeating the same.
The statute has to be construed according to the intent of
the makers and it is the duty of the courts to interpret the
statute to see that true intention of legislature is
achieved. Taking a purposive interpretation of Section
163-A of the Motor Vehicles Act the clear intendment of
the legislation was to come to the rescue of all those who
in the absence of any evidence are not in a position to file
a claim petition under Section 166 of the Motor Vehicles
Act where death of the victim or permanent disablement
of the victim is required to be proved by establishing the
factum of negligence involving the offending vehicle
resulting in to causing the accident but under Section
163-A, the requirement of proving the negligence has
been dispensed with.”
12. In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC
4647, the Constitution Bench of the Supreme Court held that a
decision is only an authority for what it actually decides and not
FAO 398/2000 Page 7 of 12


every observation found therein. Para 16 of the report is
extracted hereunder:-
16. …. A decision is only an authority for what it actually
decides. What is of the essence in a decision is its ratio
and not every observation found therein nor what
logically follows from the various observations made in
it. On this topic this is what Earl of Halsbury L.C. said in
Quinn v. Leathem [1901] A.C. 495:-
"Now before discussing the case of Allen v.
Flood [1898] A.C. 1 and what was decided
therein, there are two observations of a general
character which I wish to make, and one is to
repeat what I have very often said before, that
every judgment must be read as applicable to the
particular facts proved, or assumed to be proved,
since the generality of the expressions which may
be found there are not intended to be expositions
of the whole law, but governed and qualified by the
particular facts of the case in which such
expressions are to be found. The other is that a
case is only an authority for what it actually
decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from
it. Such a mode of reasoning assumes that the law
is necessarily a logical code, whereas every lawyer
must acknowledge that the law is not always
logical at all."
13. Therefore, what was decided by the Supreme Court in Deepal
Girishbhai Soni (supra) was that remedy under Section 163-A
and 166 of the Act are not available simultaneously and that a
Petition under Section 163-A is not in the nature of an interim
relief. It was also laid down that once the compensation is
FAO 398/2000 Page 8 of 12


awarded under Section 163-A of the Act, a petition under
Section 166 of the Act would be barred.
14. In my view, on the basis of Supreme Court report in
Girishabhai Soni(supra) it can be said that the Claims Tribunal
cannot suo moto convert a petition under Section 166 to the one
under Section 163-A of the Act if negligence is not proved.
Girishabhai Soni(supra) does not foreclose the right of a party
to convert a Petition under Section 166 to under Section 163-A
in an Appeal if a Claimant otherwise satisfies the Court that the
amendment should be allowed.
15. In a later decision of the Supreme Court in Oriental Insurance
Company Ltd. v. Dhanbai Kanji Gadhvi & Ors., (2011) 11 SCC
513, the Supreme Court relied on Deepal Girishbhai Soni
(supra) and held that where the Claimants have obtained
compensation finally determined under Section 163-A of the
Act they are precluded from proceeding further with a Petition
under Section 166 of the Act. Para 14 of the report is extracted
hereunder:-
“14. Applying the principle laid down in Deepal Soni
(supra) to the facts of the case, it will have to be held that
the Respondents having obtained compensation, finally
determined under Section 163A of the Act are precluded
from proceeding further with the petition filed under
Section 166 of the Act. The exception mentioned by the
learned Single Judge in the impugned judgment that a
petition under Section 166 of the Act can be proceeded
further if it is filed before passing of an award passed
under Section 163A of the Act is not supported by the
FAO 398/2000 Page 9 of 12

16. In view of above, I accede to the request of the Appellants to
convert the Petition under Section 166 of the Act to the one
under Section 163-A of the Act.

17. For claiming compensation under Section 163-A of the Act
from the owner/insurer only involvement of the vehicle in an
accident is required to be proved.
18. A case FIR No.501/95 dated 15.09.1995 P.S. Seema Puri under
Section 279/304-A IPC was registered against the First
Respondent. In the written statement Respondents No.1 and 2
denied the involvement of the vehicle. They, however, did not
come forward to give any reason as to why Jagdish Kumar, the
First Respondent was involved and a criminal case was
registered against him. Jagdsih Kumar did not enter the witness
box to rebut the involvement of the vehicle. In the
circumstances, it is established that the accident was caused
with bus No.DEP-7727. Thus its owner (the Second Respondent
and Insurer (the Third Respondent) are liable to pay the
compensation under Section 163-A of the Act.
FAO 398/2000 Page 10 of 12


19. Coming to the quantum of compensation, in the Claim Petition,
the Appellants claimed deceased Sant Lal‟s income to be
` 1969/- per month. During evidence, the Appellants tried to
build a case that the deceased was engaged in typing and was
earning ` 3,000/- to ` 4,000/- per month. A Salary Certificate
(Mark A) from M/s. Suri Auto Pvt. Ltd. showing the deceased‟s
`
salary to be 1969/- per month was also placed on record,
though not proved. The deceased was a Matriculate. The
minimum wages of a Matriculate at the relevant time were
` 1969/- per month. In the circumstances, I would accept the
deceased‟s income to be ` 1969/- per month as is claimed and
set out in the Salary Certificate Mark A.
20. In a petition under Section 163-A of the Act, compensation has
to be awarded as per the structured formula ( Deepal Girishbhai
Soni v. United India Insurance Company Limited, (2004) 5 SCC
385; Oriental Insurance Company Limited v . Meena Variyal
(2007) 5 SCC 428; Oriental Insurance Company v. Hansrajbhai
V. Kodala, (2001) 5 SCC 175 ; and New India Assurance Co.
Ltd. v. Pitamber & Ors., MAC APP.304/2009 decided by this
Court on 23.01.2012 ).
21. The deceased was aged a little less than 40 years on the date of
the accident. The appropriate multiplier as per Schedule II is
„16‟.
FAO 398/2000 Page 11 of 12


22. The loss of dependency thus comes to ` 2,52,032/- (1969/- x 12
x 2/3 x 16).
23. In addition, the Appellants would be entitled to compensation of
` 9,500/- i.e. ( ` 2,500/- towards loss to estate, ` 5,000/- towards
loss of consortium and ` 2,000/- towards funeral expenses).
24. The compensation of ` 2,61,532/- shall carry interest @ 7.5%
per annum from the date of filing of the Petition till the date of
its deposit with the UCO Bank, Delhi High Court, New Delhi in
the name of the Appellants.
25. The compensation shall be deposited by the Insurance Company
within eight weeks and shall be paid to the Appellants in equal
shares.
26. Since this accident took place in the year 1995, 50% of the
compensation awarded shall be released immediately on
deposit. Rest 50% shall be held in fixed deposit for a period of
two years.
27. The Appeal is allowed in above terms.

(G.P. MITTAL)
JUDGE
JULY 02, 2012
vk
FAO 398/2000 Page 12 of 12