Delhi High Court
Bajaj Allianz General Insurance ... vs Kamla Devi & Ors on 20 November, 2014
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20.11. 2014
+ MAC Appeal No. 452/2012 & CM No. 7679/2012
BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD. .....Appellant
Through: Mr.A.K.Soni, Advocate.
versus
KAMLA DEVI & ORS. ..... Respondents
Through: Mr. Vikas Negi and Mr. Manoj
Kumar, Advocates for R-1 to 4.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(Oral)
1. The present appeal is filed seeking to impugn the award dated
18.01.2012.
2. The brief facts which led to filing of the claim petition under Section
163 A of the Motor Vehicles Act, 1988 are that the deceased i.e. Mahender
Singh on 19.09.2008 was driving his vehicle around Rajaji Marg, Delhi. A
tree fell on the said vehicle as a result of which the deceased sustained fatal
injuries. The vehicle was owned by respondent No.5. Respondents No. 1 to
4 are the legal heirs of the deceased who are said to be dependent on the
deceased for livelihood. The claim petition was filed under Section 163 A
of the Motor Vehicles Act.
3. Based on the evidence on record, the Tribunal awarded a total
compensation of Rs.4,06,100/- as follows:
MAC. A 452/2012 Page 1 of 5
Loss of dependency : Rs.3,86,100/-
Funeral Expenses : Rs.5,000/-
Loss of consortium : Rs. 5,000/-
Loss of estate : Rs.5,000/-
Loss of love and affection : Rs.5,000/-
Total : Rs.4,06,100/-
4. Learned counsel appearing for the appellant has made two
submissions. He firstly submits that the present claim petition is barred
under the ESI Act as admittedly the LRs of the deceased are receiving a
pension of Rs. 6,000/- per month from ESI. It is further urged that
respondent No.5 has paid a sum of Rs.2 lacs vide cheque as compensation to
respondent No1. Reliance is also placed on Section 2(8) and 53 of the ESI
Act to contend that the present claim petition is barred. Secondly, it is stated
that the personal deduction of 1/4th is erroneous.
5. As far as the first submission is concerned, reliance is placed as
contended on Section 53 and Section 2(8) of the ESI Act. Section 53 reads
as follows:-
"53. Bar against receiving or recovery of compensation or
damages under any other law-An insured person or his
dependents shall not be entitled to receive or recover, whether
from the employer of the insured person or from any other
person, any compensation or damages under the Workmen's
Compensation Act, 1923 (8 of 1923), or any other law for the
time being in force or otherwise, in respect of an employment
injury sustained by the insured person as an employee under
this Act."
6. Hence, Section 53 is applicable when the workman suffers an
employment injury. An employment injury is defined under section 2(8) of
MAC. A 452/2012 Page 2 of 5
the Act which reads as follows:-
"(8)"employment injury" means a personal injury to an
employee caused by accident or an occupational disease
arising out of and in the course of his employment, being an
insurable employment, whether the accident occurs or the
occupational disease is contracted within or outside the
territorial limits of India ;"
7. The Tribunal did not accept the said contention of the appellant
holding that Section 163A is a non-obstante clause and would be applicable
to the present facts.
8. Section 163A of the M.V. Act reads as follows:-
"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."
9. Hence Section 163 A of the M.V.Act which is inserted by an
Amendment Act in 1994 would apply "notwithstanding anything contained
in this act or in any other law for the time being in force or instrument
having the force in law".
10. In the above context, reference may be had to the judgment of three-
Judges Bench of the Supreme Court in Deepal Girishbhai Soni and others,
v. United Insurance Co. Ltd., Baroda AIR 2004 SC 2107. The Supreme
Court held as follows:
"66....In Section 163-A, the expression "notwithstanding
anything contained in this Act or in any other law for the
MAC. A 452/2012 Page 3 of 5
time being in force" has been used, which goes to show
that the Parliament intended to insert a non-obstante
clause of wide nature which would mean that the
provisions of Section 163-A would apply despite the
contrary provisions existing in the said Act or any other
law for the time being in force. Section 163-A of the Act
covers cases where even negligence is on the part of the
victim. It is by way of an exception to Section 166 and the
concept of social justice has been duly taken care of."
11. Even otherwise, it is settled law that normally the later law, even
though general, would prevail over the earlier law in case of conflict.
Section 53 of the ESI Act was introduced by an Amendment of 1966 in the
said statute. Section 163 A of the M. V. Act was introduced in 1994.
12. The Supreme Court in the case of 'P. Raghava Kurup and Anr. vs.
V. Ananthakumari and Ors. (2007) 9SCC 179: MANU/SC/0933/2007'
"13. Our attention was invited to a decision of this Court
in S. Prakash and Anr. v. K.M. Kurian and Ors.
MANU/SC/0348/1999MANU/SC/0348/1999 :
[1999]3SCR610 their Lordships have very clearly held
that if language of general provision is clear and
unqualified, it prevails over special provision, and special
provision must give way to general provision if legislative
intent was to establish a rule of universal application.
Their Lordships have further held by referring to an
earlier decision of this Court in Ajoy Kumar Banerjee and
Ors. v. Union of India and Ors.
MANU/SC/0263/1984MANU/SC/0263/1984 :
(1984)ILLJ368SC as follows:
The general rule to be followed in case of conflict
between two statutes is that the later abrogates the earlier
one. In other words, a prior special law would yield to a
later general law, if either of the two following conditions
MAC. A 452/2012 Page 4 of 5
is satisfied:
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the
earlier enactment.
If either of these two conditions is fulfilled, the later law,
even though general, would prevail".
13. Accordingly, even if there is a conflict between Section 163 A of the
Motor Vehicles Act and Section 53 of the ESI Act, Section 163 A of the
Motor Vehicles Act i.e. the later would prevail.
14. Hence in view of the above, there is no merit in the submission of the
said appellant.
15. Coming to the second submission, the Tribunal has deducted 1/4th
towards personal expenses of the deceased. It is on record that the deceased
is survived by four dependents, namely, respondent No.1, the widow and
three dependent children. Hence, deduction of 1/4th is in order.
16. There is no merit in the appeal and the same is dismissed.
JAYANT NATH, J.
NOVEMBER 20, 2014
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