Full Judgment Text
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CASE NO.:
Appeal (civil) 3126 of 2002
PETITIONER:
Deepal Girishbhai Soni and Ors.
RESPONDENT:
United India Insurance Co. Ltd., Baroda
DATE OF JUDGMENT: 18/03/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
with C.A. No. 3127 of 2002, R.P.
(C) No. 160 of 2002 in C.A. No.
2573 of 2001, R.P. (C) No. 161 of
2002 in C.A. No. 2572 of 2001 and
C.A. No.1680/2004 (arising out of
S.L.P. (C) No. 708 of 2003)
S.B. SINHA, J :
Leave granted in S.L.P. (C) No. 708 of 2003.
Reference to this Bench :
A Division Bench of this Court by an order dated
19.04.2002 doubting the correctness of 2-Judge Bench
decision in Oriental Insurance Co. Ltd. Vs. Hansrajbhai V.
Kodala and Others [(2001) 5 SCC 175] (Kodala) has referred
the matter to a 3-Judge Bench whereby and whereunder the
proceedings under Section 163-A of the Motor Vehicles Act,
1988 (hereinafter referred to and called for the sake of
brevity as "the Act") has been held to be a final
proceeding as a result whereof the claimants had been
debarred from proceeding with their further claims made on
the basis of fault liability in terms of Section 165
thereof.
Subject matter :
The appeals arise out of judgment and order dated
9.11.2000 passed by the High Court of Gujarat at Ahmedabad
in First Appeal No. 2272 of 2000 whereby and whereunder the
claims of the appellants have been calculated limiting
the income of the deceased at Rs.40,000/- per annum.. Two
review applications have also been filed seeking review of
the judgment and order passed in Kodala’s case (supra).
An application under Article 136 of the Constitution of
India has also been filed marked as S.L.P. (C) No. 708 of
2003 arising out of the judgment and order dated 28.8.2002
passed by the High Court of Himachal Pradesh in F.A.O. [MVA]
No. 181 of 2001.
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Background Fact :
The fact of the matter may be noticed from C.A. No.
3126 of 2002. The parents of the appellants herein met
with an untimely death in an accident arising out of use of
a motor vehicle on or about 4.9.1998. The appellant No. 1
was at the relevant time a major and the other three
appellants were minors.
The appellants filed two claim petitions; one under
Section 163-A of the Act and the other under Section 166
thereof claiming compensation for a sum of Rs. 4,97,800/-
for the death of their mother, Ms. Prabhaben as also a sum
of Rs. 17, 30,900/- for the death of their father, Shri
Girishbhai Soni. Proceeding on the basis that in terms of
Section 163-A of the Act, merely an interim relief was to be
granted, the Motor Accidents Claim Tribunal in MAC Petition
No. 2133/1998 and M.A.C. Petition No. 2134/1998 vide its
order dated 24.3.2000 awarded a sum of Rs. 4,20,500/- and
Rs. 11,74,500/- respectively with interest at the rate of
12% per annum from the date of the application till
realisation. It is not in dispute that although while
passing the said order the learned Tribunal considered the
matter also on their own merits but directed that the
applications filed by the appellants herein purported to be
under Section 166 of the Act would be determined
separately.
The respondent - Insurance Company being aggrieved by
and dissatisfied with the said order dated 24.3.2000
preferred appeals before the High Court of Gujarat at
Ahmedabad. By reason of the impugned judgment, the High
Court having regard to the concession made at the bar to the
effect that in view of the cap of annual income of Rs.
40,000/- as contained in the Second Schedule appended to the
Act, the awarded amount should be reduced to Rs. 3,24,500/-
from Rs. 4,20,500/- and to Rs. 3,78,500 from Rs. 11,74,500/-
respectively.
While modifying the order of the Tribunal in each of
the said appeals, the High Court clarified that the said sum
would be paid to the appellants herein by way of interim
compensation observing:
"It is also observed that as has been
agreed between the parties this whole
amount as indicated above shall be
disbursed to the respondents at this
stage itself as per the apportionment
ordered by the Tribunal for respective
respondents and there is no need to
invest 70% of the amount in the fixed
deposit etc., as has been ordered by the
Tribunal and 100% of this amount i.e.,
Rs. 3,24,500/- in First Appeal No. 2272
of 2000 and Rs. 3,78,500 in First Appeal
No. 2273 of 2000, shall be disbursed to
the respondents in each of these two
matters respectively. It may also be
made very clear that in view of the
agreed position between the parties, we
have not embarked upon the question of
interpreting Section 163-A and the
Schedule and without entering into the
exercise of interpreting the relevant
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provisions we have passed this order
only because both the sides have shown a
good gesture before us. At the time of
awarding of compensation under section
166 of the Act all the contentions
factual and legal as may be available to
the respective parties are open to be
agitated when the main petitions are
considered by the Tribunal."
Submissions :
Mr. Gaurab Banerjee, learned senior counsel appearing
on behalf of the appellants and Mr. G.L. Sanghi, learned
senior counsel appearing on behalf of the review petitioners
would take us through the legislative history leading to
enactment of Section 163-A of the Motor Vehicles Act and
submit that the same is indicative of the fact that an order
passed thereunder is interim in nature.
The learned counsel would urge that the said Act being
a beneficent legislation deserves liberal construction and
in that view of the matter the remedy available to a
claimant against a tort feasor for obtaining a ’just’
compensation in terms of Section 166 of the Act cannot be
taken away only because an interim award has been made in
terms of Section 163-A of the Act as in the said proceeding
actual loss suffered by the victim is not adjudicated upon
and merely ’adequate compensation’ on a structured formula
is to be paid thereunder.
The learned counsel would point out that the said Act
provides for exercise of an option limited only to filing of
a claim application under Section 140 and Section 163-A,
and, thus, the remedy under Section 166 is not barred.
The learned counsel would contend that a ceiling has
been provided in the Second Scheduled so far as income of
the victim is concerned to the extent of Rs. 40,000/- per
annum is also indicative of the fact that the compensation
payable thereunder is only interim in nature and the sum
awarded in the said proceeding is to be adjusted as and when
a final award is passed in terms of Section 168 of the Act.
The learned counsel would submit that it is judicially
accepted that the Second Schedule appended to the Act
contains a large number of anomalies and in that view of the
matter a proceeding under Section 163-A should not be held
to be a final one.
Mr. Banerjee would urge that upon a proper analysis of
the scheme of the Act it would appear that the concept of
’no fault liability’ is envisaged both under Section 140 of
the Act and Section 163-A thereof and the proceeding
thereunder being alternative to each other providing for
identical rights and liabilities, an order under Section 140
being not final; there is no reason as to why an award
made under Section 163-A thereof should be treated to be
final.
The learned counsel would contend that the Bench in
deciding Kodala (supra) not only failed to take into
consideration the legislative history of the Act but also
mis-interpreted the scheme and structure thereof. The Bench
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in Kodala (supra), the learned counsel would argue,
furthermore failed to consider the effect of the Act which
is beneficent in nature and, thus, was required to be
construed liberally. Right to prosecute a remedy under
common law must be barred either expressly or by necessary
implication and such a bar having not been provided as
regard a proceeding under Section 163-A of the Act, it is
inconceivable, the learned counsel would submit, that a
remedy provided for under the statute would not be made
available to the suitor.
The learned counsel would contend that the Bench
deciding Kodala (supra) misinterpreted and misconstrued the
expression "any other law" appearing in Sub-Section (5) of
Section 140 to mean "any other law for the time being in
force as, for example, the Workmen’s Compensation Act,
1923". The said expression, the learned counsel would
contend, would embrace also the other provisions of the said
Act. According to the learned counsel, the expressions
"any other law" would by necessary implication include the
other provisions of the Motor Vehicles Act having regard to
the fact that the remedies provided for under Sections 163-A
and 166 are distinct and separate and are based on
different legal regimes. It was pointed out that whereas
under the former "adequate and rational compensation" is
provided for, the latter provides for "just compensation".
Mr. Jitendra Sharma, learned senior counsel appearing
on behalf of the respondents, on the other hand, would
submit that Section 163-A which was introduced by the
Parliament in the year 1994 carries absolutely a different
scheme vis-‘-vis ’no-fault liability’ introduced in the year
1982 in Motor Vehicles Act, 1939 which was in pari materia
with Section 140 in the 1988 Act. By enacting Section 163-
A, Mr. Sharma would contend, an exception to the provisions
of Section 166 was made out for the purpose of implementing
the principles of social justice.
Drawing our attention to the Second Schedule appended
to the Act, the learned counsel would submit that the very
fact that in terms thereof, one-third of the total income is
to be excluded from the total amount of compensation and
further certain provisions relevant for computation of total
amount of compensation payable thereunder have been provided
for, is not itself suggestive of the fact that thereby the
payment directed thereunder is not by way of an interim or
on account payment but is a final one.
LEGISLATIVE HISTORY:
A claim for damages owing to injuries suffered by
reason of negligence on the part of the driver of a motor
vehicle used to be governed only by law of tort. The Indian
Motor Vehicles Act, 1914 is the first enactment relating to
motor vehicles. The Motor Vehicles Act, 1939 which replaced
the 1914 Act consolidated and amended the law relating to
motor vehicles in India. Under the 1939 Act as also the
Fatal Accidents Act, 1855 compensation was solely based on
law of tort. The civil courts had the jurisdiction to try a
suit claiming compensation by the plaintiffs for injuries or
damages suffered by them by a party whose action had
inflicted the injury. In the year 1956, the Motor Vehicle
Accidents Claims Tribunals were established to deal with
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such claims purported to be for providing speedy trial.
However, proof of negligence was a condition precedent for
grant of compensation under the 1939 Act.
The 85th Law Commission in its report submitted in
May, 1980, proposed two new measures, i.e. (i) introduction
of Section 92-A in the Motor Vehicles Act, 1939 by which the
doctrine of liability without fault was to be introduced
and, (ii) the imposition of strict liability as regard death
or bodily injury caused by the accident or nature specified
in Section 110(1) thereof. Recommendations were also made
by the Law Commission to the effect that claim on fault
basis should be barred but the same had not been accepted by
the Parliament.
While making the aforementioned recommendations, the
Commission referred to the following observations made by
this Court in Bishan Devi and others Vs. Sirbaksh Singh and
Anr. [(1980) 1 SCC 273]:
"the law as it stands requires that the
claimant should prove that the driver of
the vehicle was guilty of rash and
negligent driving."
By reason of Section 92-A, 92-B in Motor Vehicles Act,
1939 inserted in the year 1982, a sum of Rs. 15,000/- was to
be provided in case of death and a sum of Rs. 75,000/- in
respect of permanent disablement by introducing the concept
of "no-fault liability". The amount of compensation,
however, had been revised from time to time.
The Law Commission furthermore recommended for laying
of a scheme in terms whereof the victims of ’hit and run
accident’ could claim compensation where the identity of the
vehicle involved in the accident was unknown. Yet again,
the 199th Law Commission in its report submitted in 1987
stated the law as it stood then in the following terms:
"the law as it stands present, save the
provisions in chapter VIIA inserted by
the Motor Vehicles (Amendment) Act,
1982, enables the victim or the
dependants of the victim in the event of
death to recover compensation on proof
of fault of the person liable to pay the
compensation and which fault caused the
harm."
The present Act came into force thereafter in terms
whereof inter alia Sections 92-A to 92-E of the 1939 Act
were replaced by Sections 140 to 144 whereby and whereunder
the amount of compensation in case of death was raised to
Rs. 50,000/- and for permanent disablement to Rs.25,000/-.
However, having regard to number of representations received
from various quarters, a review committee was constituted by
the Government of India in the year 1990 to examine the same
and review such provisions of the said Act, as may be found
necessary. In terms of the recommendations of the Review
Committee as also the Transport Development Council, the Act
was thereafter amended in the year 1994 in terms whereof a
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new pre-determined formula in the form of Section 163-A for
payment of compensation to road accident victims on the
basis of age and income on a no-fault basis was provided.
STATUTORY PROVISIONS:
Chapter X of the said Act provides for liability
without fault in certain cases. Section 140 provides for
liability upon the owner of the vehicle to pay compensation
on the principle of no fault. The said provision reads
thus:
"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
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law shall be reduced from the amount of
compensation payable under this section
or under Section 163-A."
Sections 141 and 142 of the said Act read as under:
"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.
142. Permanent disablement. -For the
purposes of this Chapter, permanent
disablement of a person shall be deemed
to have resulted from an accident of the
nature referred to in sub-section (1) of
section 140 if such person has suffered
by reason of the accident, any injury or
injuries involving:-
(a) permanent privation of the sight
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of either eye or the hearing of
either ear, or privation of any
member or joint; or
(b) destruction or permanent
impairing of the powers of any
member or joint; or
(c) permanent disfiguration of the
head or face."
Section 144 provides for a non-obstante clause.
Section 163-A was inserted by Act 54 of 1994 which came
into force from 14.11.1994. The said provision has been
inserted to provide for a new pre-determined structured
formula for payment of compensation to road accident victims
on the basis of age/ income of the deceased or the person
suffering permanent disablement.
Sections 163-A and 163-B read thus:
"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
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.
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."
The second schedule referred to in Section 140 of the
Act provides for a structured formula for the purpose of
grant of compensation to a third party involved in fatal
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accident/injury. By reason thereof a multiplier system is
introduced pursuant whereto and in furtherance whereof the
amount of compensation is required to be calculated having
regard to the age of the victim and his annual income.
However, in terms of the note appended to the said Schedule
the amount of compensation so arrived at in the case of
fatal accident, the claims is to be reduced by one-third, in
consideration of the expenses which the victim would have
incurred towards maintaining himself, had he been alive.
Clause (2) of the said Second Schedule provides that
the amount of compensation shall not be less than Rs.
50,000/-. It also provides for grant of compensation under
several heads, namely, (3) General Damages in case of death,
(4). General Damages in case of injuries and disabilities,
(5). Disability in non-fatal accidents and (6) notional
income for compensation to those who had no income prior to
accident. However, the maximum amount which is to be paid
under the different heads had also been specified.
Chapter XII deals with constitution of claims
tribunals, application for compensation, option regarding
claims for compensation in certain cases, award of the
claims tribunal etc. Sections 166, 167 and 168 read thus:
"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 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.
(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
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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. -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
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awarded in such manner as the Claims
Tribunal may direct."
Section 176 provides for the rule making power. The
State of Gujarat in exercise of the said power made rules
known as Gujarat Motor Vehicle Rules. Rule 211 provides for
the procedure regarding compensation arising out of
accident. Sub-rule (1) of the said rule reads thus:
"(1) An application for compensation
under sub-section (1) of section 166
shall be made to the Claims Tribunal in
Form Comp. A, and shall contain the
particulars specified in that form."
The rules framed by the State of Gujarat also provide
for the forms in terms whereof the applications for claim
are required to be filed. Form Comp. A is the format for
filing application for compensation arising out of the use
of motor vehicles. The following columns inter alia are
required to be filled up:
"10. Brief particulars of the
accident... ... ... ...
11. Quantum of compensation claimed and
basis thereof ... ... ..."
However, Rule 231 provides for procedure regarding
compensation on the principle of no-fault which is in the
following terms:
"231. Procedure regarding compensation
on the principal of no fault:-
Notwithstanding anything contained in
rules 211 to 230 and 232 in the case of
a claim for compensation under Chapter X
of the Act, the procedure shall be as
follows, namely:-
(1) An application for compensation
shall be made to the Claims Tribunal in
Form CWF, in triplicate, and shall
contain the particulars specified in
that form.
(2) The application shall be accompanied
by a fee of ten rupees in the form of
Court fee stamps, and the following
documents, namely:
(i) First Information Report;
(ii) Injury certificate or Post-
mortem report in case of death;
(iii) Heirship certificate in case of
death;
(iv) Certificate from the registering
authority regarding ownership of
the vehicle involved in the
accident;
(v) Particulars of insurance of the
vehicle involved in the
accident.
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(3) No fees shall be charged for process
of application for compensation made
under this rule.
(4) The Claims Tribunal shall dispose of
the application for compensation within
six weeks from the date of receipt of
such application.
(5) For the purpose of adjudicating and
awarding the claim, the Claims Tribunal
shall follow the procedure of summary
trial as contained in Chapter XXI of the
Code of Criminal Procedure, 1973.
(6) The Claims Tribunal shall not reject
any application made under this rule on
the ground of any technical defect, but
shall give notice to the applicant and
get the defect rectified.
(7) For the purpose of adjudicating and
awarding the claim, the Claims Tribunal
shall obtain whatever information and
document considered necessary by it from
the police, medical and other
authorities.
(8) On receipt of the application for
compensation, the Claims Tribunal shall
give notice to the owner, and the
insurer, if any, of the vehicle involved
in the accident, directing them to
appear on a date not later than ten days
from the date of issue of such notice.
The date so fixed for such appearance
shall also be not later than fifteen
days from the receipt of the application
for compensation. The Claims Tribunal
shall state in such notice that, in case
they fail to appear on such appointed
date, the Tribunal shall proceed exparte
on the presumption that they have no
contention to make against the award of
compensation.
(9) The Claims Tribunal shall proceed
with the application for compensation,
on the basis of -
(i) First Information Report;
(ii) Injury certificate or Post-
mortem report in case of death;
(iii) Registration certificate of the
motor vehicle involved in the
accident;
(iv) Cover note, certificate of
insurance or the policy,
relating to the insurance of the
vehicle against third party
risks;
(v) The nature of the treatment
given by the medical officer who
has treated the victim.
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(10) The Claims Tribunal, in passing the
orders, shall make an award of
compensation of twenty five thousand
rupees in respect of the death, and of
twelve thousand rupees in respect of the
permanent disablement, to be paid by the
owner or insurer, of the vehicle
involved in the accident.
(11) Where compensation is awarded to
two or more persons, the Claims Tribunal
shall also specify the amount payable to
each of them.
(12) The Claims Tribunal, in passing the
orders, shall also direct the owner or
insurer, of the vehicle involved in the
accident, to pay the amount of
compensation to the claimant within
thirty days from the date of the said
orders.
(13) Where the Claims Tribunal thinks
that the actual payment to the claimant
is likely to take time because of the
identification and the fixation of the
legal heirs of the deceased, the Claims
Tribunal may call for the amount of
compensation awarded, to be deposited
with the Tribunal and then proceed with
the identification of the legal heirs
for deciding the payment of compensation
to each of the legal heirs."
In terms of the aforementioned rule, an application for
compensation in respect of liability without fault is
required to be filed without any particular as regard the
accident having regard to the fact that by reason thereof,
fault on the part of the driver of the motor vehicle is
required to be pleaded or proved.
ANALYSIS OF THE RELEVANT PROVISIONS:
The relevant provisions of the Act are beneficial in
nature. The Act indisputably is in the nature of a social
welfare legislation.
The provisions as regard no fault liability evidently
were inserted having regard to the fact that the road
accidents in India had touched a new height and at least in
some of the cases it was found that rash or negligent
driving causing death or injury to the innocent persons
could not be proved. Whereas in terms of Section 140 of the
Act a statutory liability has been cast upon the owner in
case of death or permanent disablement; both under Section
163-A as also Section 166 of the Act, the insurer had been
made responsible.
It is true that in terms of Section 163-B of the Act an
option had been provided for so as to enable a person to lay
a claim for compensation either under Section 140 or Section
163-A and not under both but having regard to the scheme of
the Act, the same was not necessary.
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Section 163-A was introduced in the Act by way of a
social security scheme. It is a code by itself. It appears
from the Objects and Reasons of the Motor Vehicles
(Amendment) Act, 1994 that after enactment of the 1988 Act
several representations and suggestions were made from the
State Governments, transport operators and members of public
in relation to certain provisions thereof. Taking note of
the observations made by the various Courts and the
difficulties experienced in implementing the various
provisions of the Motor Vehicles Act, the Government of
India appointed a Review Committee. The Review Committee in
its report made the following recommendations:
"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.
According to information available, in
Delhi alone there are 11214 claims
pending before the Motor Vehicle
Accidents Tribunals, as on 31.3.1990.
Proposals have been made from time to
time that the finalisation 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.
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 defences available under
Motor Vehicles Act, 1988. After such
confirmations of prima facie liability
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by the insurers the claimants should be
required to exercise their option for
conciliation under structured
compensation formula within a stipulated
time."
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.
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 the 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 specified category. The heirs of the deceased or the
victim in terms of the said provisions 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 grant of immediate
relief to a section of people whose annual income is not
more than Rs. 40,000/- having regard to the fact that in
terms of Section 163-A of the Act 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 income but also the other factors relevant
therefor. An award made thereunder, therefore, 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.
The note appended to column 1 which deals with fatal
accidents makes the position furthermore clear stating that
from the total amount of compensation one-third thereof is
to be reduced in consideration of the expenses which the
victim would have incurred towards maintaining himself had
he been alive. This together with the other heads of
compensation as contained in column Nos. 2 to 6 thereof
leaves no manner of doubt that the Parliament intended to
lay a comprehensive scheme for the purpose of grant of
adequate compensation to a section of victims who would
require the amount of compensation without fighting any
protracted litigation for proving that the accident occurred
owing to negligence on the part of the driver of the motor
vehicle or any other fault arising out of use of a motor
vehicle.
The submission of learned counsel appearing on behalf
of the appellants to the effect that Sections 140 and 163-A
provide for similar scheme cannot be accepted for more than
one reason. Payment of the amount in terms of Section 140
of the Act is ad hoc in nature. A claim made thereunder, as
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has been noticed hereinbefore, is in addition to any other
claim which may be made under any other law for the time
being in force. Section 163-A of the Act does not contain
any such provision.
Section 163-A of the Act is interlinked with several
sections of Chapters XI and XII thereof. Section 140
imposes a liability upon the owner of the vehicle to pay
compensation where death or permanent disablement of any
person has resulted from accident arising out of the use of
a motor vehicle. By reason of the said provision a fixed
sum is to be paid.
Sub-Section (4) of Section 140 provides that the claim
for compensation under sub-section (1) thereof 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 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. Sub-section (5) of Section 140 of
the Act categorically provides that the obligation of the
owner of the vehicle shall not be in derogation of any
statutory law cast upon the owner of the vehicle to pay
compensation under any other law for the time being in force
subject, however, to the condition as has been laid down in
the proviso appended thereto that the amount of such
compensation to be given under any other law should be
reduced from the amount of compensation payable thereunder
or Section 163-A.
Section 163-A which has an overriding effect provides
for special provisions as to payment of compensation on
structured formula basis. Sub-Section (1) of Section 163-A
contains non-obstante clause in terms whereof the owner of
the motor vehicle or the authorised insurer is 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. Sub-Section
(2) of Section 163-A is in pari materia with Sub-Section (3)
of Section 140 of the Act.
Section 163-A does not contain any provision identical
to Sub-Section (5) of Section 140 which is also indicative
of the fact that whereas in terms of the latter, the
liability of the owner of the vehicle to give compensation
or relief under any other law for the time being in force
continues subject of course to the effect that the amount
paid thereunder shall be reduced from the amount of
compensation payable under the said Section or Section
163-A.
By reason of the Section 163-A, therefore, the
compensation is required to be determined on the basis of a
structured formula whereas in terms of Section 140 only a
fixed amount is to be given. A provision of law providing
for compensation is presumed to be final in nature unless a
contra indication therefor is found to be in the statute
either expressly or by necessary implication. While
granting compensation, the Tribunal is required to
adjudicate upon the disputed question as regard age and
income of the deceased or the victim, as the case may be.
Unlike Section 140 of the Act, adjudication on several
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issues arising between the parties is necessary in a
proceeding under Section 163-A of the Act.
Decisions rendered by this Court are galore where
computation as regard the amount of compensation has been
related to multiplier method involving ascertainment of loss
of dependency and capitalizing the same by appropriate
multiplier. (See General Manager, Kerala State Road
Transport Corporation, Trivandurm Vs. Mrs. Susamma Thomas
and others, (1994) 2 SCC 176). The structured formula
provided for in the Second Schedule also provides for
similar concept as regard determination of the amount of
compensation.
Apart from the fact that compensation is to be paid by
applying multiplier method under the Second Schedule other
relevant factors, namely, reduction of one-third in
consideration of the expenses which the victim would have
incurred towards maintaining himself, general damages in
case of death as also in the case of injuries and
disabilities as also the disability in non-fatal accidents,
a notional income for compensation to those who had no
income prior to accident are provided for, are required to
be considered which is also a clear pointer to the fact that
thereby the Parliament intended to provide for a final
amount of compensation and not an interim one.
The scheme envisaged under Section 163-A, in our
opinion, leaves no manner of doubt 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 covered thereunder whereas Sections 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 any
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
laying a claim on fault liability, the question of giving an
option to the claimant to pursue their claims either under
Section 163-A or Section 166 does not arise. If the
submission of the learned counsel is accepted the same would
lead to an incongruity.
Although the Act is a beneficial one and, thus,
deserves liberal construction with a view to implementing
the legislative intent but it is trite that where such
beneficial legislation has a scheme of its own and there is
no vagueness or doubt therein, the court would not travel
beyond the same and extend the scope of the statute on the
pretext of extending the statutory benefit to those who are
not covered thereby. (See Regional Director, Employees’
State Insurance Corporation, Trichur Vs. Ramanuja Match
Industries, [AIR 1985 SC 278 : (1985) 1 SCC 218].
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The decision of this Court in Kunal Singh Vs. Union of
India and Another [(2003) 4 SCC 524] relied upon by Mr.
Banerjee cannot be said to have any application whatsoever
in the instant case as therein this Court while considering
the provisions of Section 47 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 held that the language thereof
is plain and certain statutory obligation on the employer
was cast to protect an employee acquiring disability during
service and only in that situation, it was observed:
"9...In construing a provision of a
social beneficial enactment that too
dealing with disabled persons intended
to give them equal opportunities,
protection of rights and full
participation, the view that advances
the object of the Act and serves its
purpose must be preferred to the one
which obstructs the object and paralyses
the purpose of the Act..."
It is also not a case where an exception or exclusion
clause in a beneficial legislation has been provided for
and, therefore, the decision of this Court in State of
Tripura and Another Vs. Roopchand Das and Others [(2003) 1
SCC 421] cannot also be said to have any application.
It is now well-settled that for the purpose of
interpretation of statute, same is to be read in its
entirety. The purport and object of the Act must be given
its full effect. [See High Court of Gujarat & Anr. Vs.
Gujarat Kishan Mazdoor Panchayat & Ors. [JT 2003 (3) SC 50],
Indian Handicrafts Emporium and Others vs. Union of India
and Others [(2003) 7 SCC 589], Ameer Trading Corporation
Ltd. vs. Shapoorji Data Processing Ltd. [JT 2003 (9) SC 109
= 2003 (9) SCALE 713 and Ashok Leyland Vs. State of Tamil
Nadu and Anr. [2004 (1) SCALE 224]. The object underlying
the statute is required to be given effect to by applying
the principles of purposive construction.
We, therefore, are of the opinion that remedy for
payment of compensation both under Sections 163-A and 166
being final and independent of each other as statutorily
provided, a claimant cannot pursue his remedies thereunder
simultaneously. One, thus, must opt/elect to go either for
a proceeding under Section 163-A or under Section 166 of the
Act, but not under both.
In Kodala (supra) the contention of the claimant that
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 the Parliament did not want
to provide additional compensation in terms of Section 163-A
of the Act.
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
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responsible therefor as a consequence whereto the Tribunal
refuses to grant any compensation; would it be within its
jurisdiction to direct refund either in whole or in part 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.
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.
It is, therefore, evident that whenever the Parliament
intended to provide for adjustment or refund of the
compensation payable on the basis of no-fault liability, as
for example, Sections 140 and 161 in case of hit and run
motor accident, from the amount of compensation payable
under the award on the basis of fault liability under
Section 168 of the Act, the same has expressly been provided
for and having regard to the fact that no such procedure for
refund or adjustment of compensation has been provided for
in relation to the proceedings under Section 163-A of the
Act, it must be held that the scheme of the provisions under
Sections 163-A and 166 are distinct and separate in nature.
It is also not of much relevance that in terms of
Section 140 of the Act, the owner of the vehicle has been
fastened with the statutory liability and in Section 163-A
thereof both the owner as also his authorised insurer has
been made so liable.
In Sub-Section (5) of Section 140 of the Act the
expression "also" has been used which is indicative of the
fact that the owner of the vehicle would be additionally
liable to pay compensation under any other law for the time
being in force. Proviso appended to Sub-Section (5) of
Section 140 states that the amount of compensation payable
under any other law for the time being in force is to be
reduced from the amount of the compensation payable under
Sub-Section (2) thereof or under Section 163-A of the Act.
Right to claim compensation under Section 140, having regard
to the provisions contained in Section 141 is in addition to
any other right to claim compensation on the principle of
fault liability. Such a provision does not exist in Section
163-A. If no amount is payable under the fault liability or
the compensation which may be received from any other law,
no refund of the amount received by the claimant under
Section 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 accordance with the right to get
compensation on the principle of fault liability. It is
also not correct to contend that the expression "any other
law for the time being in force" used in Section 140(5)
would include any other provisions of the Motor Vehicles
Act. Had the intention of the Parliament been to include
the other provisions of Motor Vehicles Act within the
meaning of the expression "any other law for the time being
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in force", it could have said so expressly. The very fact
that the Parliament has chosen to use the expression "any
other law", the same, in our considered opinion, would mean
a law other than the provisions of the Motor Vehicles Act.
The proviso appended to Sub-Section (5) of Section 140 of
the Act is required to be given a purposive meaning.
It is not in dispute that the claim of compensation
irrespective of the death or bodily injury may arise under
other statutes as, for example, Workmen’s Compensation Act,
Factories Act, Fatal Accidents Act and other acts governing
various industries including hazardous industries.
In the event, the motor vehicle in question is insured,
ultimately the liability would also be fastened upon the
insurer having regard to the provision laid down in Chapter
XII of the Act. We may also notice that Rule 211(1) of
Gujarat Motor Vehicle Rules provides for the application for
compensation in terms of Sub-Section (1) of Section 166 of
the Act. A claim application is to be filed in Form Comp.
A. Rule 231 thereof provides for an application for
compensation in respect of liability without fault and for
the said purpose the claim application prescribed therefor
is to be filed in Form No. CWF. The very fact that
different forms had been prescribed as regard determination
of the final compensation is also suggestive of the fact
that both proceedings are meant to be final in nature.
Column No. 10 in Form Comp. A requires the claimant to give
brief particulars of the accident which would include the
nature and extent of fault on the part of the driver of the
vehicle, but no such column is provided for in Form CWF.
Subject to the said distinction, all other particulars
required to be furnished are almost identical.
We may notice that Section 167 of the Act provides 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
contains different expressions as, for example, "under the
provision of the Act", "provisions of this Act", "under
any other provisions of this Act" or "any other law or
otherwise". In Section 163-A, the expression
"notwithstanding anything contained in this Act or in any
other law for the time being in force" has been used, which
goes to show that the Parliament intended to insert a non-
obstante clause of wide nature which would mean that the
provisions of Section 163-A would apply despite the contrary
provisions existing in the said Act or any other law for the
time being in force. Section 163-A of the Act covers cases
where even negligence is on the part of the victim. It is
by way of an exception to Section 166 and the concept of
social justice has been duly taken care of.
Conclusion :
We, therefore, are of the opinion that Kodala (supra)
has correctly been decided. However, we do not agree with
the findings in Kodala (supra) that if a person invokes
provisions of Section 163-A, the annual income of Rs.
40,000/- per annual shall be treated as a cap. In our
opinion, the proceeding under Section 163-A being a social
security provision, providing for a distinct scheme, only
those whose annual income is upto Rs. 40,000/- can take the
benefit thereof. All other claims are required to be
determined in terms of Chapter XII of the Act.
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However, in this case, we may notice that the parties
have proceeded to file two applications - one, under Section
163-A and another under Section 166 of the Act. Both have
been entertained. Both the Tribunal as also the High Court
have proceeded on the basis that the amount of compensation
under Section 163-A is by way of an interim award and the
same would not preclude the claimants to proceed with his
claim made in terms of Section 166 of the Act. It is
submitted at the Bar that the appellants have withdrawn 50%
of the amount and rest of the amount has been invested. The
appellants have lost both of their parents in the accident.
Only one of the appellants at the relevant time was a major.
It appears that 70% of the amount permitted to be withdrawn
has been deposited in the Fixed Deposit. We agree with the
submission of Mr. Banerjee that the claim of the appellants
made under Section 163-A be treated to be one under Section
140 of the Act and upon adjusting the amounts provided for
thereunder, the appellants may refund the rest thereof to
the insurer.
Keeping in view of the limited questions posed before
us, in our opinion, it is not necessary to go into the
purported discrepancies existing in the Second Schedule of
the Act.
We, for the reasons aforementioned, do not find any
merit in the review applications which are dismissed.
So far as Civil Appeal Nos. 3126/2002 and 3127/2002 are
concerned, we in exercise of our jurisdiction under Article
142 of the Constitution direct that the claim applications
of the appellants under Section 163-A of the Act be treated
to be applications under Section 140 thereof. The amount
invested by the Tribunal may be allowed to be withdrawn by
the respondent - Insurance Company. The appellants shall
refund the excess amount withdrawn by them after adjusting
the amount payable in terms of Section 140 of the Act and
the interest which would have accrued thereon shall be
adjusted towards the compensation received by the claimant
within four weeks from the date of communication of this
order whereafter, the Motor Vehicles Accident Claims
Tribunal shall proceed to determine their claim petitions
filed under Section 166 of the Act in accordance with law.
This order shall not be treated as a precedent.
Section 163-A was introduced in the year 1994. The
executive authority of the Central Government has the
requisite jurisdiction to amend the Second Schedule from
time to time. Having regard to the inflation and fall in
the rate of bank interest; it is desirable that the Central
Government bestows serious consideration to this aspect of
the matter.
Subject to the aforementioned directions, the appeals
and the review petitions are dismissed. No Costs.