Delhi High Court
Bandana & Ors. vs Rajesh Kumar & Ors. on 3 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd January, 2012
Pronounced on: 3rd February, 2012
+ MAC.APP. 426/2011
BANDANA & ORS. ..... Appellants
Through: Mr. Manish Maini, Adv.
versus
RAJESH KUMAR & ORS. ..... Respondents
Through: Ms. Suman Bagga, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for enhancement of compensation of ` 4,89,488/-
for the death of Prem Chand Chaurasia, who was aged about 24
years at the time of the accident, which took place on
16.11.2008.
2. The Appellants preferred a Petition on the basis of the
structured formula as given in the Second Schedule under
Section 163-A of the Motor Vehicles Act (the Act). The
deceased's income was claimed to be `40,000/- per annum. The
Motor Accident Claims Tribunal, (the Claims Tribunal)
accepted the said income as the minimum wages of an unskilled
worker on the date of the accident were more than the amount
of `40,000/-. The Claims Tribunal deducted one-third towards
the personal and living expenses and applied the multiplier of
'18' as per the Second Schedule to arrive at the loss of
dependency of `4,79,988/-. The Claims Tribunal further
awarded notional sum of ` 9,500/- towards the non-pecuniary
damages to arrive at the figure of `4,89,488/-. It held that the
deceased himself contributed to the accident to the extent of
25% because he was walking after consuming alcohol on a
public road at night time. The compensation was thus reduced
to ` 3,67,116/-.
3. The learned counsel for the Appellants contend that the
Tribunal committed an error in holding that the deceased
contributed to the accident simply on the ground that there was
mention of smell of alcohol in the deceased's MLC at the time
of his admission in the hospital. Admittedly, there was no
evidence that the deceased was under the influence of liquor, his
gate was unsteady or that he was unable to move on a public
road.
4. Section 163-A was incorporated in the Motor Vehicles Act,
1988 by virtue of an amendment w.e.f. 14.11.1994.
5. In Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan
and Anr., 1977 (2) SCC 441; the Supreme Court referred to a
judgment of a Division Bench of the Madras High Court where
it had been suggested that some compensation should be
provided to the Claimants irrespective of proof of negligence to
a limited extent say `250/- to `300/- a month. (The judgment
was delivered by the Madras High Court on 13.12.1976). The
Supreme Court lamented that the proof of negligence is
necessary before the owner or the Insurance Company could be
held liable for the payment of compensation in a Motor
Accident Claims case unless there is an amendment in the law.
6. Section 163-A of the Act provides for the claim of
compensation on the basis of the structured formula in case of
the death or permanent disablement in motor accident without
proof of any wrongful act, neglect or default of the owner of the
vehicle or vehicles or of any other person.
7. The Supreme Court in National Insurance Company Limited v.
Sinitha & Ors., 2011 (13) SCALE 84 distinguished between
grant of compensation under Section 140 of the Act on the basis
of no fault no liability and Section 163-A of the Act without an
obligation to prove any negligence on the part of the driver of
the vehicle who caused the accident. At the same time, the
Supreme Court observed that the grant of compensation under
Section 163-A of the Act can be defended by the driver/owner
or the Insurer on proving that the accident was caused on
account of wrongful act or neglect of the person claiming the
compensation. In other words, the Supreme Court took the view
that if the person claiming compensation under Section 163-A
of the Act himself was the wrongdoer, he was not entitled to
any compensation. Para 16 of the report in Sinitha & Ors.
(supra) is extracted hereunder for ready reference:-
"16. At the instant juncture, it is also necessary to
reiterate a conclusion already drawn above, namely, that
Section 163A of the Act has an overriding effect on all
other provisions of the Motor Vehicles Act, 1988. Stated
in other words, none of the provisions of the Motor
Vehicles Act which is in conflict with Section 163A of the
Act will negate the mandate contained therein (in Section
163A of the Act). Therefore, no matter what, Section 163A
of the Act shall stand on its own, without being diluted by
any provision. Furthermore, in the course of our
determination including the inferences and conclusions
drawn by us from the judgment of this Court in Oriental
Insurance Company Limited v. Hansrajbhai v. Kodala,
(2001) 5 SCC 175, as also, the statutory provisions dealt
with by this Court in its aforesaid determination, we are
of the view, that there is no basis for inferring that
Section 163A of the Act is founded under the "no-fault"
liability principle. Additionally, we have concluded
herein above, that on the conjoint reading of Sections 140
and 163A, the legislative intent is clear, namely, that a
claim for compensation raised under Section 163A of the
Act, need not be based on pleadings or proof at the hands
of the claimants showing absence of "wrongful act",
being "neglect" or "default". But that, is not sufficient to
determine that the provision falls under the "fault"
liability principle. To decide whether a provision is
governed by the "fault" liability principle the converse
has also to be established, i.e., whether a claim raised
thereunder can be defeated by the concerned party
(owner or insurance company) by pleading and proving
"wrongful act", "neglect" or "default". From the
preceding paragraphs (commencing from paragraph 12),
we have no hesitation in concluding, that it is open to the
owner or insurance company, as the case may be, to
defeat a claim under Section 163A of the Act by pleading
and establishing through cogent evidence a "fault"
ground ("wrongful act" or "neglect" or "default"). It is,
therefore, doubtless, that Section 163A of the Act is
founded under the "fault" liability principle. To this
effect, we accept the contention advanced at the hands of
the Learned Counsel for the Petitioner."
8. In this case, no evidence was led by the Respondents that the
accident took place on account of the deceased's fault i.e. on
account of any wrongful act, neglect or default of the deceased
himself. Simply because there was a smell of liquor, no such
inference can be drawn. The Claims Tribunal, therefore, erred
in reducing the compensation awarded.
9. The compensation amount is restored to `4,89,488/- which shall
carry interest @ 7.5 % per annum from the date of filing of the
petition till the date of payment, as awarded by the Tribunal.
10. The enhanced amount of ` 1,22,372/- along with interest shall
be deposited by the Respondent No.3 Insurance Company
within 30 days in UCO Bank, Delhi High Court Branch, New
Delhi which shall be held in fixed deposits for a period of three
years in the name of the First Appellant and shall be utilized by
her for her own benefit as well as for the benefit of the Second
and the Third Appellants.
11. The Appeal is allowed in above terms. No costs.
(G.P. MITTAL)
JUDGE
FEBRUARY 03, 2012
vk
