Jammu & Kashmir High Court
New India Assurance Co. Ltd vs Mohd. Bashir And Another on 1 September, 2021
Serial No. 20
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Mac App No. 12/2020
CM No. 298/2020
New India Assurance Co. Ltd. ...Appellant(s)/Petitioner(s)
Through:- Mr. Jugal Kishore Gupta, Advocate
v/s
Mohd. Bashir and another ...Respondent(s)
Through:- None
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The instant appeal filed under Section 173 of the Motor Vehicles
Act, (for brevity, „the Act‟), is directed against an interim award dated
14.10.2019 passed by the Motor Accident Claims Tribunal, Poonch (for
brevity, „the Tribunal‟), in a claim petition bearing No. 127/MACT titled
"Bashir Ahmed and another vs. New India Assurance Co. Ltd."
Facts:_
2. In a vehicular accident dated 21.05.2017, one Mohd. Arif driving
his own vehicle (Alto Car) bearing registration No. JK12A-304 is stated to
have died. A claim petition is stated to have been filed before the Tribunal
for compensation under Section 163A of the Act by the
claimants/respondents herein.
3. The appellant herein states to have filed objections to the claim
petition contending inter-alia therein that the deceased being owner and
driver of the offending vehicle did not entitle the claimants to file the claim
petition and lodge a claim for compensation thereof. The Tribunal is stated
to have passed the impugned order/award in favour of the
claimants/respondent herein without rendering any decision on the
objections raised by the appellant-company.
4. The appellant challenges the impugned award inter-alai on the
grounds that the same has been passed by the Tribunal without appreciating
the objections and passed the same contrary to the facts of the case and law
on the point, in that, under Section 163-A of the Act, there is no provision
for passing of an interim award in a claim petition filed under Section 163-A
as only a final award can be passed by Tribunal therein.
5. According to the learned counsel for the appellant, under Section
163-A, compensation is awarded without any proof of fault whereas for
getting compensation on the basis of fault liability, claimant is required to
prove wrongful act, neglect or default of the owner of the vehicle or vehicle
concerned.
6. According to the learned counsel for the appellant, award of
compensation under Section 163-A is of predominant formula for payment
of compensation to road accident victims and that formula itself is based on
criteria similar to determine the compensation under Section 168.
7. According to the learned counsel, the object of introducing Section
163-A in new Act is to avoid a delay in determination of compensation.
Heard learned counsel for the appellant and perused the
record.
8. Before adverting to the grounds urged in the appeal, it would be
appropriate to refer to Section 163-A of the Motor Vehicles Act, which
provides and reads as under :-
"[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."
9. A plain reading of Section 163A would suggest that the same was
inserted by Act No. 54 of 1994 w.e.f 14.11.1994. The compensation payable
under Section 163-A is almost based on relevant criteria for determining the
compensation such as annual income, age of the victim and multiplier to be
applied. In addition to the figure which is arrived at on the basis of said
criteria, schedule also provides that amount of compensation shall not be
less than Rs. 50,000/-. It provides for fixed amount of general damage in
case of death and for disability in non-fatal accident, para 5 of the schedule
provides for determination of compensation on the basis of permanent
disability.
10. The purpose of this Section and the schedule is based on the object
to avoid long drawn litigation and delay in payment of compensation to the
victim or his heirs who are in dire need of relief. If such affected claimant
opts for accepting the lump sum compensation based on structured formula,
he would get relief at the earliest. It also gives a vital advantage of not
pleading or establishing any wrongful act or neglect or default of the owner
of the offending vehicle or vehicles. However, this benefit can be availed of
by the claimant only by restricting his claim on the basis of income at a slab
of Rs. 40,000/-, which is the highest slab in the Second Schedule.
Compensation amount is paid in a claim petition filed under Section 163-A
without pleading or proof of fault, on the principle of social justice as a
social security measure because of ever increasing motor vehicles accidents
as has been held by the Apex Court in case titled as "Oriental Insurance
Company Limited and others vs. Hansrajbhai V. Kodala and others"
reported in 2001 (5) SCC 175.
11. Having regard to the principles and propositions laid down by the
Apex Court in the Judgment supra, the Tribunal seemingly has erred while
passing the impugned award granting the interim compensation/award in
favour of the claimants, moreso, when the claim petition admittedly has been
filed by the claimants-respondents herein in terms of Section 163-A.
12. Resultantly, the appeal succeeds, the impugned award is set-aside.
The Tribunal shall proceed ahead with the adjudication of the claim petition
in accordance with law. The statutory amount deposited by the appellant
herein before this Court be refunded to the appellant along with interest, if
any, accrued thereon.
13. Disposed of.
(JAVED IQBAL WANI)
JUDGE
Jammu
01.09.2021
SUNIL-I
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No
