New India Assurance Co. Ltd. vs Vivek Thakur & Ors
2012 Latest Caselaw 3144 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on: 17th February, 2012
                                       Pronounced on: 11th May, 2012
+       MAC APP. 692/2007

        NEW INDIA ASSURANCE CO. LTD.     ..... Appellant
                 Through:     Mr. K.L. Nandwani, Advocate

                                   Versus

        VIVEK THAKUR & ORS                           ..... Respondents
                     Through:           None

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                           JUDGMENT

G. P. MITTAL, J.

1. The Appellant impugns a judgment dated 07.09.2007 whereby in a Petition under Section 163-A of the M.V. Act preferred by the Respondents No.1 to 3, a compensation of `4,31,900/- was awarded in their favour.

2. The Appellant's (Insurance Company's) grievance is that there were two vehicles involved in the accident i.e. a TSR bearing No.DL-1RE-3360 in which the deceased was travelling and a stationary bus bearing No.DL-1PB-1906 which was owned by Sukhchain Singh (the Respondent No.7) and was insured with the Appellant New India Assurance Co. Ltd. It is stated that although there was no negligence on the part of the driver of the

bus and the TSR driver being solely liable, having rammed the TSR in the stationary bus, the Claims Tribunal erred in fastening the entire liability on the Appellant. It is further the contention of the Appellant Insurance Company that the Claims Tribunal had no power to ask the Insurance Company to satisfy the award in the first instance and then decide on the liability. It is urged that in the absence of any evidence, the deceased's income should have been taken as `15,000/- per annum. The multiplier of 16 adopted by the Claims Tribunal, argues the learned counsel is also on the higher side.

3. There is no appearance on behalf of the Respondents No.1 to 3 or the owner & the driver of the TSR.

4. It has to be borne in mind that in a Claim Petition under Section 163-A of the Motor Vehicles Act, the Claimants are not required to raise a plea that the death or permanent disablement in respect of which the claim had been made was due to any wrongful act, neglect or default of the owner or of the vehicle or the vehicles concerned or of any person. In the circumstances, the contention raised on behalf of the Appellant that there was no negligence on the part of the bus driver and thus the Appellant was not liable to indemnify the owner and pay the compensation is without any substance. Moreover, a perusal of the testimony of PW2 SI V.K. Sharma shows that the bus was abandoned on a public way which was not an authorized parking space. There was neither any indicator nor any signal

indicating the presence of the bus. He further deposed that the bus was in a drivable condition and there was no problem as to its motorability.

5. Section 163-A enables a Claimant to claim compensation without proving any negligence on the part of the owner of the vehicle involved in the accident and there is no indication in the provision as to from which owner/insurer the Claimants would claim the compensation, if more than one vehicle is involved in the accident. Since in the case of composite negligence, the Claimants can elect to sue and recover compensation from all or any of the tortfeasor. Thus under Section 163-A of the Act also it would be the option of the Claimant to claim compensation from all or any of the owner/insurer of the vehicle involved in the accident. I am fortified in this view by a Division Bench Judgment of Kerala High Court in United India Insurance Company Ltd. v. Ratheesh, MANU/KE/1687/2011, wherein while relying on United India Insurance Company Ltd. v. Madhavan, 2011 (3) KLT 452 and after analyzing the provisions of Section 140 and 163-A of the Motor Vehicles Act, the Division Bench held as under:

"13. The legislature in 1994 introduced S.163A into the Statute book. While under S.140 even without proving any fault only a specific amount alone could be claimed, under S. 163A comprehensive claim can be staked for compensation by the victims who have suffered permanent disablement or legal heirs of a deceased victim.

14. Provisions of S.40 of the M.V. Act make it clear that payment under S.140 is only ad hoc and interim. The claimants are entitled, even after claiming the amount under S.140 of the M.V. Act, to claim the entire amount of compensation which would otherwise be payable by resort to S.166 of the M.V. Act. The only stipulation is that the amount paid under S.140 must be adjusted towards the amount that would be payable under S.166 of the M.V. Act.

15. The legislature, with long experience of working S.140, and its predecessor provisions had introduced 163A into the Motor Vehicles Act in 1994 and in S.163A of the M.V. Act significantly there is no reference at all to the nature of liability of owners/insurers if there is plurality of vehicles involved in the accident. The difference is significant. It would not be an inadvertent omission. S.140 speaks of the arrangement when plurality of vehicles are involved. The liability is declared to be joint and several. But when it came to S.163A of the M.V. Act the legislature did not incorporate such a stipulation.

16. Why? The query is pored. We have already noted that it could not be an inadvertent omission and this is eminently clear from S.163A(2) of the M.V. Act which eloquently conveys to the court that the legislature was cognizant and seized of the possibility of plurality of vehicles being involved in the accident wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or of any other person need not be proved in a claim under S.163A of the M.V. Act, it is declared in S.163A(2). This definitely reveals to the court that it was a conscious deviation from the scheme that was stipulated under S.140 of the M.V. Act.

17. So far as S.140 of the M.V. Act is concerned, it is now trite that claim can be raised against either or both owners/insurers of the vehicles. The decision

in Oriental Insurance Co. Ltd. v Lakshmikutty Amma & Ors., 1999 ACJ 597 (D.B.) makes the position clear that the Tribunal need not identify at the stage of award of compensation under S.140 of the M.V. Act all the vehicles (persons) liable to pay compensation. It is therefore evident that a claim under S.140 can be staked against the owner of either vehicle. The insurer consequently will be liable to indemnify the owner of the vehicle liable.

18. We requested the learned counsel to advance arguments at the Bar as to why totally different semantics and dynamics have been employed by the legislature while enacting S.163A of the M.V. Act. Significantly it is not even mentioned in S.163A that the liability is joint and several. Even under S.140 of the M.V. Act claim can be staked against either or both the owner/owners of the vehicle. It therefore appears to us to be evident that in a claim under S.163A also the choice/option must be for the claimant to stake claim against either or both owner/insurer of the vehicles involved in the accident.

xxxx xxxx xxxx xxxx xxxx

22. We are unable to find any other reason as to why a different language is used under Ss.140 and 163A of the M.V. Act by the legislature so far as the nature of the liability of the owner/insurer is concerned, when plurality of vehicles are involved. Consequently, therefore, it appears to us, that the option is entirely on the claimant to stake his claim against either or both owners/insurers of the vehicles involved in a claim under S.163A of the M.V. Act. That right/option of his got to be protected."

6. The Division Bench posed before it a question whether this will lead to innocent owners or insurers being compelled to pay the

compensation and the guilty/offending owners/insurers to go scot free. It was held that since Section 163-A was introduced as a social measure, the use of the terminology betrays a want of commitment. Paras 26 to 31 of the report are extracted hereunder:

"26. Will not this lead to the innocent owners/insurers being compelled to pay compensation while the guilty/offending owners/insurers go scot free? Where is justice in such an event? Will not the law offend the primary constitutional mandate under Article 21 that any law has to be fair, just and reasonable? A flurry of questions are thrown at the Court. We are in the least impressed by these queries. In the scheme of S.163A there is no place for words like „innocent‟ and „offending‟. Even the use of the terminology betrays a want of commitment to the laudable goals of the statutory provisions under S.163A and its very scheme. The statutory concern is only that the victims must be compensated. To ensure that, the option must be and has been conceded to the claimant. He is the best judge to decide what would ensure payment to him. He can and has hence been conceded the option.

27. Going by the purpose that S.163A has to achieve, the argument that the singular expressions in a statute take in the plural also and hence all the owners/insurers are together covered by the expression "the owner of the vehicle or authorized insurer" in S.163A cannot be accepted. The further argument that the liability hence rests on all the owner/insurers equally cannot be accepted. The language of S.163A and the purpose that it has to serve does not persuade or permit us to accept such an interpretation.

28. If the primary accent under S.163A is to provide a social security scheme, we are satisfied that the option must be given to the target group of the

beneficent provision to stake the claim against any of the owners/insurers who is made liable under S.163A. The liability under S.163A appears to be a joint and separable liability. Either or both (or any or all) who have been saddled with the liability under S.163A can be proceeded against by a claimant at his option under S.163A of the M.V.Act.

29. It is not as though the concept is alien to the law. In the case of joint and several liability in tort option is given to the claimant to proceed against either or both the tort feasors. Reference to page 171 in the Law of Tort by Ratanlal and Dhirjalal, 21 st Edition may in this context be relevant. We extract the relevant portion below:

Joint tort feasors are jointly and severally, liable for the damages caused from the tort. They may be sued jointly or separately. If sued jointly damages may be levied from all or either. Each is responsible for the injury sustained by his common act.

It is a suit for composite negligence plaintiff is not entitled to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules of remoteness of damages, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover or the whole more than his whole damage. He has a right to recover full amount of damages from any of the defendants.

(emphasis supplied)

30. If that can be the case of tortuous liability, we find it absolutely safe to come to the conclusion that the same principle must apply in a claim under S.163A of the M.V.Act. The legislature has advisedly and very cautiously not limited the option of the claimant when he stakes a claim under S.163A of the M.V. Act. He is not

obliged to claim against both (or all) the insurers/owners. It is open to the claimant to choose the person from whom he should stake and recover the claim. M

31. There can be many a reason which can prompt the claimant to choose to proceed against one of the many persons liable under S.163A of the M.V. Act. Where two vehicles are involved in the accident and one of them is not covered by a valid policy of insurance that is an eminently acceptable reason as to why the claimant should choose to stake the claim against the owner/insurer of one vehicle and not the other. There may also be instances like the one that presented itself in Ningamma v. United India Insurance Co. Ltd., 2009 ACJ 2020 where the insurer of one of the vehicles may be entitled to claim absolution from liability under S.163A of the M.V. Act. If the purpose to be achieved by the statutory provision is a social security scheme, the accent must be to ensure that the claimant gets the amount under such social security scheme without dispute and at the earliest. If that be so, certainly our conclusion that the claim can be staked against either or both at the option of the claimant must be held to be sound."

7. Thus, there is no escape from the conclusion that a Claimant choosing a remedy under Section 163-A of the Motor Vehicles Act is entitled to sue and recover compensation as per the structured formula from the owner/insurer of any or all the vehicles involved in the accident. Turning to the instant case, the Respondents No.1 to 3 chose to implead and claim compensation from the owners of the both vehicles involved in the incident. Since the bus was insured, the Appellant was also

impleaded as insurer of bus No.DL-1PB-1906. The Claims Tribunal instead of making both the owners and the insurer (of the vehicle which was insured) liable to pay the compensation jointly or severally or in a specific proportion, made the Appellant liable to pay the compensation holding that determination of liability will be done later on in this very Claim Petition after the compensation is paid by the Appellant. The Claims Tribunal held as under:

"26. Lot of arguments were advanced under this head. Ld. counsel for the petitioner Sh. Jitender Kamra categorically argued that no apportionment of liability can take place in this case for the reasons that rashness and negligence is not required to be determined in a U/s 163-A. Counsel Sh. D.N. Sharma for the Insurance Company, Sh. Om Parkash and Sh. Yogender on the other hand requested for apportionment of the liability on the ground that they shall have to enter into another round of litigation for determination of the same. It is no more res integra that in a case U/s 163-A, apportionment of liabilities cannot be done as doing of the same will amount to entering into the realm of deciding rashness and negligence which is not within the scope of Section 163-A and therefore, I deem it expedient to allow the argument of Sh. Jitender Kamra and prefer to leave the question open for its decision after payment of compensation to the claimants in order to achieve the object of providing the earliest possible help to the victims of the accident. As the liabilities of the vehicles involved in the accident is joint and several in a case U/s 163-A, all the respondents are liable jointly and severally as far as claimants are concerned. In view of the submissions made coupled with the fact that evidence has been led on the point of

ownership as well as on the point of negligence by parties, I deem it expedient to observe that after payment of compensation to the claimants respondents will be at liberty to move this Tribunal for determination of the remaining contentions vis-a- vis who is the owner and what is the respective proportion of liability interse between the driver, owner and insurer of the vehicles involved in the accident. In order to provide the earliest and easy payment, insurance company i.e. respondent no.5 New India Assurance Company is directed to make the payment in the first instance. It is given the liberty to move this court after making of the payment about decision of respective liabilities and other questions connected with the same. It is hereby observed that the same shall be determined on the basis of the records of this petition and there will be no need of filing of separate petition and of leading of evidence. The reason weighting heavily in my mind for leaving the question to be decided at a later stage is that if question of apportionment is decided at this stage, it is definitely going to delay the payment to the victims of accident."

8. Since the question of negligence in a Claim Petition under Section 163-A of the Motor Vehicles Act is not to be determined irrespective of the fact whether one or more than one vehicle is involved in the incident, the question of actual liability ought not to have been postponed by the Claims Tribunal. Since the Respondents No.1 to 3 claimed compensation from the owner of both the vehicles and the insurer of bus No.DL-1PB-1906, they all could have been made liable to pay the compensation jointly or severally or in equal

proportion. Thus, instead of remanding back the case to the Claims Tribunal on this issue, I would hold that both the owners of the vehicles involved in the incident were equally liable to pay the compensation in equal proportion. The liability was joint and several, the Respondents No.1 to 3 could recover the compensation from any of them. The Appellant Insurance Company was, therefore, liable to pay the compensation held payable to the Respondents No.1 to 3.

9. Adverting to the contention that in the absence of any evidence as to the deceased's income a notional income of `15,000/- should have been taken into consideration, to say the least, is without any substance. It is true that a Claims Tribunal and the Court would have jurisdiction to entertain the Claim Petition under Section 163-A where the income of the deceased was upto `40,000/-. In the absence of any proof of income, the Court can take the minimum wages. The deceased in this case was a graduate engaged in teaching. This part of PW1's testimony was not challenged in the cross-examination. The minimum wages of a graduate on the date of the accident was more than `3,300/- per month. The Claims Tribunal was, therefore, justified in accepting PW1's testimony that the deceased was earning `3,300/- per month. Thus, there is no fault in the quantum of compensation of `4,31,900/- awarded by the Claims Tribunal.

10. In view of the discussion above, the liability being joint and several, the Appellant would be under obligation to satisfy the award with a right to recover 50% from the owner of the TSR No.DL-1RE-3360. The Appellant Insurance Company shall deposit the balance amount of compensation along with the interest as awarded by the Claims Tribunal within six weeks with the Registrar General of this Court.

11. The Appellant and the Respondents No.4 to 8 are directed to appear before the Claims Tribunal for determination of the ownership of TSR No. DL-1RE-3360 and for recovery of 50% of the compensation from the owner/insurer, if any, of the TSR.

12. The Appeal is allowed in above terms.

13. A copy of the judgment be sent to the concerned Claims Tribunal for necessary action in the matter.

(G.P. MITTAL) JUDGE MAY 11, 2012 pst