Delhi High Court
Iffco Tokio General Insurance Co. ... vs Smt. Babita & Ors. on 14 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th August, 2012
+ MAC. APP. 149/2012
IFFCO TOKIO GENERAL INSURANCE CO. LTD...... Appellant
Through: Ms. Suman Bagga, Adv.
versus
SMT. BABITA & ORS. ..... Respondents
Through Mr. Pramod Gupta, Adv. for R-4.
Mr. Pankaj Seth, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant IFFCO Tokio General Insurance Company Limited
impugns a judgment dated 14.11.2011 passed by the Motor Accident
Claims Tribunal (the Claims Tribunal) whereby a compensation of
`8,32,452/- was awarded in favour of the Respondents No.1 to 3 for the
death of Surender.
2. It is not in dispute that the accident occurred on 19.10.2007 at about 9:20
P.M. while TSR No.DL-1RC-7527 was being driven by deceased
Surender. The other vehicle involved in the accident is Maruti car
No.DL-4C-AA-2751, which was owned by Vikrant Kapoor, Respondent
No.4 herein (the First Respondent before the Claims Tribunal).
3. Since the deceased was driving the TSR, his legal representatives filed a
Petition under Section 163-A of the Act claiming compensation from the
owner/insurer of the Maruti Car as well as the TSR.
4. The TSR was insured with the Appellant IFFCO Tokio General Insurance
Company Ltd. (IFFCO Tokio), whereas the Maruti car was insured with
National Insurance Company Ltd. (Respondent No.5 herein).
5. It is urged by the learned counsel for the Appellant that since the
deceased was himself driving the TSR, his legal representatives could not
have claimed compensation from themselves and from the owner (being
vicariously liable). Thus, the Appellant being insurer of the TSR had no
liability.
6. Section 163-A of the Motor Vehicles Act, 1988 (the Act) enables the
Claimant to claim compensation without proving any negligence by the
owner of the vehicle involved in the accident. There is no indication in
the provision as to from which owner/insurer the Claimants would claim
compensation, if more than one vehicle is involved in the accident.
7. Section 163-A of the Act talks about liability of payment of
compensation by the owner of the motor vehicle or the authorized
Insurer. Section 163-A is extracted hereunder:-
"Section 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."
8. The use of the term 'motor vehicle' or 'vehicles' in Section 140 as
against the use of the terms 'motor vehicle' in Section 163-A of the Act is
not of much import. Obviously, if there are more than one vehicle
involved in an accident, the Claimant would be entitled to claim
compensation from either or both the vehicles. I am supported in this
view by a Division Bench Judgment of Kerala High Court in United India
Insurance Company Ltd. v. Ratheesh, MANU/KE/1687/2011.
9. There may be other situations where more than one vehicle is involved in
the accident. There may be a pedestrian, a cyclist, a scooterist or a person
driving any vehicle. Two or more vehicles may cause an accident
resulting in death or injury with permanent disability to the pedestrian,
cyclist, scooterist or the driver of the vehicle. These persons can claim
compensation from the owner/authorized insurer of either or both the
vehicles, who are involved in the accident. There may be situation where
a victim may be travelling as an occupant in one vehicle and the said
vehicle may be involved in the accident with another vehicle. Here also,
the occupant of one of the vehicles would be entitled to claim
compensation from the owner/owners and authorized insurer/insurers of
one or both the vehicles. Another situation would be where driver of a
vehicle whether a two wheeler, a TSR or any other motor vehicle meets
with an accident involving another vehicle. If the accident is caused on
account of his own negligence, he would not be entitled to any
compensation. I am supported in this view by a three Judge Bench
decision of the Supreme Court in National Insurance Company Limited v.
Sinitha & Ors., 2011 (13) SCALE 84. If the accident did not occur on
account of the driver/owner's own negligence, he would be entitled to
claim compensation from the owner/insurer of the other vehicle
irrespective of the fact whether there was any default or negligence on the
part of the driver of the other vehicle or not.
10. In the instant case, no defence was taken by Respondent No.4, the driver
and owner of Maruti Car or its Insurer National Insurance Company Ltd.
that the accident was caused on account of Surender's own negligence.
11. Turning to the facts of the instant case, the Claims Tribunal opined that
since both the vehicles were involved in the accident, there would be
equal liability on the insurer of both the vehicles, which to my mind, is
not the correct interpretation of Section 163-A of the Act.
12. As stated above, the circumstances will differ in each case as to whether
the owner/Insurer of one or both the vehicles would be liable to pay the
compensation, which in the instant case is payable only by the owner and
Insurer of Maruti Car.
13. It is urged by the learned counsel for the Appellant that apart from
Appellant's liability the Claims Tribunal erred in awarding compensation
under Section 166 of the Act although the Petition was preferred under
Section 163-A of the Act. It is urged that the Claims Tribunal ought to
have confined the payment of compensation as per the Second Schedule
to the Act.
14. I find sufficient force in the contention raised.
15. This Court in New India Assurance Co. Ltd. v. Pitamber & Ors., MAC
APP.304/2009; Pitamber & Ors. v. Nirdosh Kumar & Anr.. MAC.APP.
345/2009 both decided on 23.01.2012 and Jagdish & Anr. v. Madhav Raj
Mishra and Anr. MAC APP.190/2011 decided on 19.04.2011; while
relying on Deepal Girishbhai Soni v. United India Insurance Company
Limited, (2004) 5 SCC 385 and Oriental Insurance Company Limited v.
Meena Variyal (2007) 5 SCC 428, held that in a Claim Petition under
Section 163-A of the M.V. Act, the compensation has to be awarded on
the basis of the structured formula.
16. The Respondents No.1 to 3 claimed the deceased's income to be `3300/-.
The compensation on the basis of structured formula comes to `
4,75,200/- (3300/- x 12 x 2/3 x 18).
17. In addition, the Respondents No.1 to 3 would be entitled to a
compensation of `9,500/- i.e. (`2,500/- towards loss to estate, `5,000/-
towards loss of consortium and `2,000/- towards funeral expenses). The
overall compensation comes to ` 4,84,700/-.
18. The compensation stands reduced from ` 8,32,452/- to `4,84,700/-.
19. By order dated 08.02.2012 execution of the award was stayed, subject to
deposit of 50% of the award amount along with proportionate interest.
Since, I have held above that the Appellant is not liable at all to pay the
compensation, the compensation deposited by the Appellant shall be
released to it along with interest accrued, if any, during the pendency of
the Appeal.
20. It is stated by Mr. Pankaj Seth, Advocate that 50% of the award amount
i.e. `4,16,226/- along with proportionate interest has already been
deposited. Since the compensation awarded stands reduced, the balance
amount of `68,474/- along with interest @ 7.5% per annum from the date
of filing of the Petition till its payment shall be deposited with the UCO
Bank, Delhi High Court Branch, New Delhi which shall be released to the
First Respondent on deposit.
21. The Appeal is allowed in above terms.
22. The statutory deposit of `25,000/-, if any, shall be refunded to the
Appellant Insurance Company.
23. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 14, 2012
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