Delhi High Court
New India Assurance Co Ltd vs Kamla & Ors on 24 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th February, 2012
+ MAC.APP. 776/2010
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr.K.L.Nandwani, Advocate
versus
KAMLA & ORS ..... Respondents
Through: Mr.Ajay Pal Singh, Advocate for
R-1 to R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal has been filed by the Appellant/New India
Assurance Company impugning a judgment dated 06.07.2010
whereby a compensation of ` 3,66,000/- (including the interim
compensation of `50,000/-) was awarded in favour of
Respondents No. 1 to 4.
2. The ground of challenge is the failure to prove the negligence
and the quantum of compensation. During the pendency of the
Claim Petition an application under Section 163-A of Motor
Vehicle Act (the Act) was moved but that was withdrawn by the
Respondents.
3. It is submitted by the learned counsel for Respondents No.1 to 4
that the Claim Petition may be treated under Section 163-A of
the Act he may be awarded compensation on the basis of
structured formula where the Respondents should not need any
obligation to prove negligence.
4. The question of conversion a Petition under Section 163-A of
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."
5. This Court in the case of Rukmani Devi v. New India Assurance
Company Limited & Anr., 2009 ACJ 2202 held that provision
for award of compensation under the Motor Vehicle Act is a
beneficial piece of legislation and, therefore, an endeavor has to
be made to see as to how the best the intention of legislation can
be achieved so as to safeguard the interest of the 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 an 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."
6. In view of the statement made by the learned Counsel for
Respondents No.1 to 4, the Claim Petition is treated under
Section 163-A of the Act and the income of the deceased is
restricted to ` 40,000/- per annum.
7. On the basis of the structured formula, the loss of dependency
comes to ` 2,93,333/- (40,000-1/3rd x 11). On adding
conventional some of ` 9,500/- (towards Loss of Consortium `
5,000/-, Loss to Estate ` 2500/- and Funeral Expenses ` 2,000/-)
the sum comes to `3,02,833/- including the interim
compensation of ` 50,000/-.
8. The compensation of `2,52,833/- along with proportionate
interest as awarded by the Tribunal and the proportionate
interest as accrued during the pendency of the Appeal shall be
released in favour of the Respondents No. 1 to 4 in the
proportion as directed by the Claims Tribunal.
9. The excess amount along with accrued interest during the
pendency of the Appeal shall be refunded to the Appellant.
10. Statutory amount of ` 25,000/- shall also be refunded.
11. Appeal is allowed in above terms. No costs.
(G.P. MITTAL)
JUDGE
FEBRUARY 24, 2012
mr/vk
