M/S Magma H.D.I. General ... vs Smt. Ruby Devi And 6 Others
2017 Latest Caselaw 4009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1218 of 2016
 

 
Appellant :- M/S Magma H.D.I. General Insurance Co.
 
Respondent :- Smt. Ruby Devi And 6 Others
 
Counsel for Appellant :- Baleshwar Chaturvedi
 
Counsel for Respondent :- Pramod Kumar
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the insurer against the award dated 18.1.2016 passed by the Motor Accident Claims Tribunal, Etawah in MACP No. 673 of 2014, the award is for Rs. 4,41,500/- in respect of the claim arising from the death of Satyadev.

The claim petition was itself filed under Section 163-A of the Motor Vehicles Act, 1988. According to that claim petition copy of which is annexed to this appeal, the income of the deceased was disclosed at Rs. 5,000/- per month. However, in paragraph 6 and then in paragraph 22 thereof it was clearly disclosed that the claim was being filed under Section 163-A of the Act. Thereafter, in the computation charge annexed as part of the claim petition computation of compensation for loss of dependency was disclosed at Rs. 5,40,000/- based on an annual income of Rs. 40,000/-.

The claimant had disclosed that the deceased Satyadev was working as helper on the Bolero-Max motor vehicle bearing registration no. UP-75M-1034, owned by Shyam Bahadur.

While in the claim petition, as noted above, the income of the deceased had been disclosed at Rs. 5,000/- per month, the owner of the vehicle Shyam Bahadur, in his testimony stated that the income of the deceased was Rs. 4,500/-. Besides making such oral statement, neither the owner nor the claimant relied on any documentary evidence in support of their respective contentions as to the monthly income of the deceased.

The Tribunal specifically disregarded the claim made by Kunwar Pal (PW-1) who is the father of the deceased as to the income of the deceased. The Tribunal held that the compensation amount could not be computed by relying on the statement so made by Kunwar Pal.

Thereafter, the Tribunal relied on the judgment of the Supreme Court in the case of Laxmi Devi Vs. Mohammad Tabbar reported in 2008 Law Suit (SC) 1191 and assumed notional income of the deceased on a notional basis at Rs. 100 per month which translate to Rs. 36,000/- per annum.

Having thus determine the annual income of the deceased at Rs. 36,000/- per annum, the Tribunal then applied the structured formula, under II Schedule to the Act and accordingly, computed the compensation awarded.

In the present appeal, learned counsel for the appellant first disputes the finding of the Tribunal as to negligence of the driver of the insured vehicle. In this regard, it is seen that the claim petition itself was filed under Section 163-A of the Act and therefore, the claimant was not burdened to lead any evidence or to establish negligence of the driver of the Bolero car. In any case, no evidence was led by the insurer or the owner of the insured vehicle that may establish that accidental injuries and death of Satyadev were caused due to his own negligence.

Then, it has been submitted, the claim petition was not maintainable in view of the fact that the claimant had themselves disclosed the income of the deceased at Rs. 5,000/- per month which would translate to an annual income at Rs. 60,000/-. Alternately, he submits even if the income as disclosed by the employer of the deceased, is to be accepted at Rs. 4,500/- per month, the annual income of the deceased were count to Rs. 54,000/-.

Learned counsel for the appellant then submits that whether the income of the deceased is taken Rs. 54,000/- or Rs. 60,000/- per annum, it would far exceed the limit for applicability of Section 163-A of the Act. According to him, the claim petition could have been entertained under section 163-A of the Act only if the claimant had disclosed the income of the deceased up to Rs. 40,000/- per annum, and not above that.

In this regard, he relies on judgment of the Supreme Court in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. Baroda reported in 2004 (5) SCC 385.

Before the applicability of the aforesaid judgment is to be considered, it may be noted Section 163-A reads as below:-

[163A. Special provisions as to payment of compensation on structured formula basis.--

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. ]

Thus, in the first place Section 163-A does directly prescribe a pre-condition for applicability of that Section to cases where the the income of the deceased or claimant as the case may be falls within the limits mentioned in the II Schedule.

The said section only provides a special overriding provision. The section opens with a non obstante clause. It thereby creates liability on the owner of the motor vehicle or the authorized insurer in any case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the II Schedule.

The II Schedule, on the other hand, is a table providing for different multipliers to be applied according to age of the deceased or the person suffering a permanent disablement with reference to his annual income.

Clearly, section 163 A read with the II Schedule has been created for the benefit of claimants who do not enjoy high income. It is confined to cases where the annual income of the claimant or the deceased, as the case may be falls between Rs. 3,000/- to Rs. 40,000/-.

For even a claim to be decided under Section 1630A in respect of a person who may claim annual income of Rs. 36,000/-, it would remain open for the defendant to contest and for the Tribunal to determine, whether the annual income of the claimant was or is Rs. 36,000/- as claimed, or any amount lesser that same.

Thus, for a claim to be processed under Section 163-A, though the claimant would not be burdened to establish the element of negligence in the occurrence of the accident, yet, for quantification of the compensation they would have to lead evidence as to the correct income of the claimant and or the deceased as the case may be.

Thus, the disclosure of income made in the claim petition is not sacrosanct. It is not an indisputable fact. The owner or the insurer as the case may be, may dispute the claim of income made by the claimant and therefore say that lower amount of compensation be awarded as per structured formula.

Also, in a given case the claimant may, either on account of typographical or other reason, at the time of filing the claim petition disclose a lower annual income. In such a case again the claim petition in so far as discloses the income of the claimant would not remain sacrosanct and it would be open to amendment to disclose a higher income and consequently claim a higher compensation as per the structured formula.

Thus the computation and estimation of the income of the claimant or the deceased, as the case may be would be a justiciable issue before the Tribunal. It would require pleadings to be made and evidence to be led by the parties. Thereafter it would remain for the Tribunal to adjudicate or determine the correct amount of annual income of the deceased or claimant, as the case may be.

It is that income which is to be considered by the Tribunal for the purpose of computation of actual compensation to be awarded by applying correct multiplier mentioned in the second schedule.

The facts involved in the case of Deepal Girishbhai Soni (supra) were quite different. In that case, the parents of the claimants had died in a motor accident on 04.09.1998. Arising therefrom the claimant filed two claim petitions - one under Section 163 A of the Motor Vehicles Act and another under Section 166 of the Act arising from the death of his mother and father, respectively.

In the proceedings under Section 163 A of the Act arising from the death of the mother of the claimant in that case, the Tribunal merely passed an interim order and awarded a sum of Rs. 4,20,500/-. At the same time, in the other case arising under section 166 of the Act, it passed another an interim order to grant Rs. 11,74,500/- in respect of the claim filed on the death of the father of the claimants, both awards came together with 12% interest.

It was an undisputed fact of that case, while passing the said orders, the Tribunal considered the matter also on merits and directed that the application filed by the appellant purported to be under Section 166 of the Act would be determined separately.

It was in these circumstances, the insurance company being aggrieved, filed an appeal before the Gujarat High Court. It was in that appeal that a concession was sought to be made by the claimant to the effect that in view of the 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 4,20,500/- and to Rs. 3,78,500/- from 11,74,500/- respectively.

Thus, the claimant in that case did not concede to the income of the deceased being less than or up to Rs. 40,000/-. Also, the Tribunal did not adjudicate the income of the deceased to be Rs. 40,000/- per annum only.

In fact, on the contrary the claimant stood by his claim of higher income of the deceased, but, for the purpose of interim award made by the Tribunal the claimant conceded to computation of those amounts up to the upper limit of income of the deceased as prescribed under the II Schedule of the Act.

Also noticeably, the Tribunal in that case, made it clear that the claim proceeding was being dealt with under Section 166 of the Act, though despite one of the claim having been filed under Section 163-A of the Act.

It was in this background that the matter was carried to the Supreme Court by the insurer.

The Supreme Court traced out the legislative history of Section 163-A and thereafter observed:-

(i) in paragraph 35 of the judgment that Section 163-A had overriding effect. It provides for special provisions as to payment of compensation on structured formula basis.

(ii) Section 163-A does not contain any provision identical to Sub-section (5) of Section 140 and therefore it does not provide for any reduction from the amount of compensation payable under any other provisions. It observed :

"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 issues arising between the parties is necessary in a proceeding Section 140 under Section 163-A of the Act".

(emphasis supplied)

(iii) thereafter, the Supreme Court further held in paragraph 50, the scheme envisaged under Section 163-A provides for determination of the rights and obligation of the parties finally. The said amount is not to be altered under any other provisions. Also, there is no provision for adjustment of that amount so awarded against any other amount that may be awarded under any other provisions or the Act.

(iv) then, in paragraph 56 of that judgment the Supreme Court made it clear that remedy for payment of compensation both under Section 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedy thereunder simultaneously. It held :

"56. We, therefore, are of the opinion that remedy for payment of compensation both under Section 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 or under Section 166 of the Act, but not under both"

It is thereafter that the observations in paragraph 58 and 59 that judgment the Supreme Court held as below:-

"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 awarded 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 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."

The Supreme Court also differentiated between the scheme of Section 140 and Section 163-A. It also differentiated between scheme of various other Acts covering the same eventuality of accidental injuries or death.

Having made that discussion the Supreme Court then concluded in paragraph 66 as quoted below:-

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.

In view of that conclusion drawn by the Supreme Court and in view of the background of the peculiar facts of that case where the income of the deceased was undisputedly in excess of Rs. 40,000/-, the claim filed by the claimant under Section 163-A was held to be not maintainable. Also, in that case neither the claimant conceded nor the Tribunal adjudicated the annual income of the deceased to be Rs. 40,000/- or less. On the contrary, the claimant desired to avail, by way of an interim award compensation as per structured formula under section 163 A of the Act, subject to upward revision under section 166 of the Act.

However, as has been noted above, in the instant case neither the claimant filed any claim petition under Section 166 of the Act nor as he filed any any appeal or cross appeal seeking enhancement of the amount of compensation awarded under Section 163-A.

Then, it is noted that the Supreme Court in the case of Deepal Girishbhai Soni (supra) had itself in paragraph 47 clearly observed while granting compensation under Section 163-A of the Act, the Tribunal is required to adjudicate upon disputed questions as regard the age and income of the deceased or victim, as the case may be.

Thus, the question of age and income of the deceased is very much justiciable even in a proceeding under Section 163-A of the Act. As observed above, in my view the age and income of the victim or the claimant, as the case may be, as disclosed in a claim petition filed under Section 163-A is not sacrosanct or indisputable.

In any view, in the instant case, the Tribunal having examined the issue of income upon evidence led, it reached a definite conclusion that the income of the deceased could not be assessed at more than Rs. 100 per day. In other words, the Tribunal assumed the annual income of the deceased on notional basis at Rs. 36,000/- per annum. It has not been disputed by the claimant thereafter.

Thus, the notional income of the deceased at Rs. 36,000/- per annum, is within the limits set by second schedule to the Act. Also, the award made in the present case is final. There was/is no other claim filed by the claimants. They have also not filed any cross-appeal or cross-objection for enhancement, to the present appeal. The determination of income and award of compensation made by the Tribunal under section 163-A of the Act is thus final and conclusive.

Thus, the judgment of the Supreme Court in the case of Deepal Girishbhai Soni (supra) as discussed above is not applicable to the present case as it is distinguishable.

The appeal lacks merits and is dismissed. No order as to costs.

The entire decretal amount shall now be deposited by the insurer within a period of four months from today which shall be released immediately upon deposit, in favour of claimant respondents, without furnishing any security.

Amount of Rs. 25,000/- deposited before this Court be remitted to the Tribunal to be adjusted against the amount payable by the appellant.

Order Date :- 6.9.2017

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