Rajila Beevi vs Silamani
2021 Latest Caselaw 1929 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                         OP (MAC).No.89 OF 2020

 I.A.NO.245/2019 IN OPMV 1215/2017 OF IV ADDITIONAL MACT, KOLLAM


PETITIONER/PETITIONER:

             RAJILA BEEVI,
             AGED 51 YEARS,
             W/O. LATE ASHRAF, RESIDING AT 683A(8/683A),
             NAVAS MANZIL, 7 MEETHOOR, VAMANAPURAM PANCHAYATH,
             THIRUVANANTHAPURAM DISTRICT, PIN-695 606.

             BY ADVS.
             SRI.R.RAJESH (VARKALA)
             SRI.M.KIRANLAL
             SRI.T.S.SARATH
             SRI.MANU RAMACHANDRAN
             SHRI.SAMEER M NAIR
             SHRI RETNAKUMAR K.

RESPONDENTS/RESPONDENTS:

      1      SILAMANI,
             S/O. SASIDHARA, RESIDING AT H.NO. 2/1,
             THADATHIRIKATHU VEEDU, PALKULAM, KALLARA P.O,
             VAMANAPURAM, NEDUMANGAD,
             THIRUVANANTHAPURAM, PIN-695 608.

      2      ABDUL MAJEED,
             S/O. MUHAMMED ISMAIL, RESIDING AT 541, KARICHANTHU
             VEEDU, 10, KURINCHILAKKAD, KALLARA,
             THIRUVANANTHAPURAM, PIN-695 608.

      3      THE BRANCH MANAGER,
             UNITED INDIA INSURANCE CO. LTD, SITUATED AT BRANCH
             OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695541.

      4      THE MANAGING DIRECTOR,
             KSRTC, SITUATED AT FORT ,
             THIRUVANANTHAPURAM, PIN-695 023.

      5      MADHUMOHANAN G,
             S/O. GOPALAN, RESIDING AT THODIYIL VEEDU, THAZHAM
             SOUTH, CHATHANOOR P.O, KOLLAM, PIN-691 572.
 OP (MAC).No.89 OF 2020       2



      6      THE BRANCH MANAGER,
             SITUATED AT NEW INDIA ASSURANCE CO. LTD. BRANCH
             OFFICE, THIRUVANANTHAPURAM, PIN-695 541.

      7      SHANAVAS,
             S/O.LATE ASHRAF, RESIDING AT 683A (8/683A), NAVAS
             MANZIL, 7 MEETHOOR, VAMANAPURAM PANCHAYATH,
             THIRUVANANTHAPURAM DISTRICT, PIN-695 606.

      8      NAVAS,
             S/O. LATE ASHRAF, RESIDING AT 683 A (8/683A), NAVAS
             MANZIL, 7 MEETHOOR, VAMANAPURAM PANCHAYATH,
             THIRUVANANTHAPURAM DISTRICT, PIN-695 606.

             R3 BY ADV. SRI.P.K.MANOJKUMAR
             R4 BY ADV. SRI.P.C.CHACKO(PARATHANAM)
             R6 BY ADV. SRI.ZIYAD RAHMAN

     THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 19.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (MAC).No.89 OF 2020               3




                                                                   'CR'

                                JUDGMENT

An application to amend a claim petition filed under Section 166 of

the Motor Vehicles Act, 1988 ("the Act" for short) to one under Section

163A of the Act was filed by the petitioner, which stands rejected by the

impugned order. The Tribunal was of the view that the nature and

character of the petition would change if the amendment is allowed. The

petitioner contends otherwise. The sustainability of the order passed by

the IV Additional Motor Accidents Claims Tribunal, Kollam is under

challenge in this petition filed under Article 227 of the Constitution of the

Constitution of India.

2. Sri. Ashraf, the husband of the petitioner, was a fish vendor.

The respondents 7 and 8 are the children of the petitioner. On 12.8.2014

at about 5 a.m, while Ashraf was travelling in an auto rickshaw driven by

one Al Ameen, transporting a consignment of fish, the auto rickshaw

dashed on a KSRTC bus. Serious injuries were sustained by the occupants

of the auto rickshaw and they were pronounced dead on the next day. The

sons of the petitioner are working elsewhere and she had to burden the

consequences. She was given legal advice to file a claim under Section 166

of the Motor Vehicles Act seeking compensation. In the petition so filed as

O.P. (M.V.) No. 1215/2017, the monthly income of the deceased was given

as Rs.15,000/-. This, according to the petitioner, was based on the

suggestion of the Advocate whom she had engaged. The petitioner states

that she is in urgent need of money and when she made further enquiries,

she was advised to seek amendment of the petition to one under Section

163A of the Motor Vehicles Act and seek compensation on structured

formula basis. Invoking Rule 395 of the Motor Vehicle Rules and Order VI

Rule 17, she filed an application seeking to amend the claim petition and

sought for grant of compensation under Section 163A of the Act. The

Tribunal, by the impugned order, rejected her application seeking

amendment on the ground that the amendment if allowed would change

the entire nature and character of the petition.

3. I have heard Sri. R. Rajesh, the learned counsel appearing for

the petitioner, Sri. Jacob Mathew, the learned Senior counsel appearing for

the 6th respondent, Sri. P.K. Manoj Kumar, the learned counsel appearing

for the 3rd respondent, Sri P.C.Chacko, the learned counsel appearing for

the KSRTC.

4. Sri. Rajesh, the learned counsel appearing for the petitioner,

submitted that the claim petition was filed after the death of her husband.

Her husband had no fixed income from fish vending. However, it was as

suggested by her counsel that she was persuaded to lodge the claim by

making such assertions. Later, when she received advice and realised that

what was pleaded for was untenable, she requested her counsel to seek

amendment of the petition to one under Section 163A of the Act. It is

submitted by the learned counsel that the provisions of the Act are

benevolent in nature but the learned Tribunal, by adopting a hyper

technical approach, has rejected her request for amendment.

5. The learned counsel appearing for the respondents contended

that if, by the amendment, the entire nature and character of the petition

would change, the same cannot be allowed. In order to bring her claim to

one under Section 163A of the Act, the petitioner, in the application for

amendment, has stated that the monthly income be altered as Rs.3,300/-

per mensem.The structured formula covered under Section 163A of the

MV Act is applicable only to persons who belong to the socially weaker

sections whose annual income is below Rs.40,000/-. After having admitted

earlier that the monthly income of the deceased was Rs.15,000/- the

reduction of his income to bring the application to one under Section 163A

smacks of mala fides is the submission.

6. I have considered the submissions advanced and have

perused the records.

7. It would be profitable at this juncture to have a glance at the

statutory provisions. Section 140 deals with the liability to pay

compensation in certain cases on the principles of no fault. Section 140

reads as follows:

140. Liability to pay compensation in certain cases on the principle of no fault.--(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any

other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.

(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:

Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.

8. The provisions of Section 140 of the MV Act is intended to

provide immediate succour to the injured or the heirs and legal

representatives of the deceased. Hence, normally, a claim under Section

140 is made at the threshold of the proceedings and the payment of

compensation under Section 140 is directed to be made by an interim

award of the Tribunal which may be adjusted if in the final award, the

claimants are held entitled to any larger amounts. (Eshwarappa @

Maheswarappa and Another v. C.S.Gurushanthappa and Another 1.

9. The next provision which may be of some relevance is Section

141 of the MV Act which reads as follows:

141. Provisions as to other right to claim compensation for death or permanent disablement.--

(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in section 163A such other right hereafter in this section referred to as the right on the principle of fault to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.

(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and--

1 [(2010) 8 SCC 620]

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.

10. Sub-section (1) of S.141 makes the compensation under S.140

independent of any claim of compensation based on the principle of fault

under any other provision of the Motor Vehicles Act or under any other law

but subject to any claim of compensation under S.163A of the Act. Sub-

sections (2) and (3) further provide that even while claiming compensation

under the principle of fault (under S.166) one may claim no fault

compensation under S.140 and in that case the claim of no fault

compensation shall be disposed of in the first place and the amount of

compensation paid under S.140 would be later adjusted if the amount

payable as compensation on the principle of fault is higher than it.

11. Section 163A was inserted by Act 54 of 1994 which came into

force from 14.11.1994. The said provision has been inserted to provide for

a new pre-determined structured formula for payment of compensation to

road accident victims on the basis of age/income of the deceased or the

person suffering permanent disablement. Section 163A and Section 163B

reads thus:

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 of 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.

163B. Option to file claim in certain cases.-- Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and

not under both.

12. The Second Schedule referred to in sub clause (3) of Section

163A of the Act provides for a structured formula for the purpose of grant

of compensation to a third party involved in a fatal accident/injury.

However, the note appended to the said Schedule provides that the

amount of compensation so arrived at in the case of fatal accident claims

shall be reduced by 1/3rd in consideration of the expenses which the

victim would have incurred towards maintaining himself, had he been

alive.

13. When Section 140 of the Act dealt with interim compensation,

Section 163A of the Act is intended to provide for making an award

consisting of a predetermined sum without insisting on a long drawn trial

or without proof of negligence in causing the accident. An award made

under Section 163A is in full and final settlement of that claim as would

appear from the different columns contained in the Second Schedule

appended to the Act. In other words, the intention of the Parliament was

to lay a comprehensive scheme for the purpose of grant of adequate

compensation to a section of victims who would require the amount of

compensation without fighting any protracted litigations for proving that

the accident occurred owing to the negligence on the part of the driver of

the motor vehicle or any other fault arising out of use of a motor vehicle.

In other words, when a claim under Section 140 is in addition to any other

claim which may be made under any other law for the time being in force,

an award under Section 163A is final.

14. Chapter XII of the Act deals with constitution of Claims

Tribunals, application for compensation, option regarding claims for

compensation in certain cases, award of the Claims Tribunal, procedure

and powers etc. Section 166 of the Act deals with Application for

compensation, which reads as follows:

166. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the

legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2). Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) xxxx

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.

15. Section 166 of the Act provides for a complete machinery for

laying a claim on fault liability.

16. In Deepal Girishbhai Soni v. United India Insurance Co.

Ltd.2, the Apex Court had occasion to consider the correctness of the

judgment of the Bench of two Judges in Oriental Insurance Company

2 [2004 (2) KLT 395]

Ltd. v. Hansrajbhai V Kodala3. In the said judgment, the Apex Court

had explained the nuances of Section 140, 163A, 166 and 167 of the Act

and its interplay with each other. Reference to paragraph Nos.51, 52 and

57 of the judgment would be apposite.

"51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140.

52. It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the minds of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims both under Section 163-A and Section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity.

xxxxxxxxxxxxxxxxxxxxx

57 We, therefore, are of the opinion that the

3 [AIR 2004 SC 2107]

remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163- A or under Section 166 of the Act, but not under both.

17. It was thus held that since Section 166 of the Act provides for

a complete machinery for laying a claim on fault liability, the question of

giving an option to the claimant to pursue their claims both under Section

163-A and Section 166 do not arise. Sections 163-A and 166 being final

and independent of each other as statutorily provided, a claimant cannot

pursue his remedies thereunder simultaneously. The claimant may have to

opt to go either for a proceeding under Section 163-A or under Section

166 of the Act, but not under both.

18. In Sherifa Beevi and Others v P.Komu and Others 4, a

learned Single Judge of this Court had occasion to consider the possibility

of an amendment of a petition filed under Section 163A. It was held in

paragraph No. 5 as follows:

5. The further question to be considered is regarding the possibility of an amendment of a petition filed under S.163A. The statutory bar is only in pursuing a claim under both provisions, S.140 and 163A and of course under S.163A and 166. As far as the former situation of S.140 and 163A is concerned, the same is

4 [2006 (4) KLT 857]

to be excluded, apparently in view of the amount of compensation stipulated under both sections. Under S.140, in the case of death, the no fault compensation payable is Rs. 50,000. It has to be noted that both S.140 and 163A deal with situations of death and permanent disablement only. Under the structured formula as provided under S.163A in the case of death the stipulated amount under Note 2 to the Second Schedule as per S.163A is minimum Rs. 50,000. Note 2 reads as follows:

"Amount of compensation shall not be less than Rs.

50,000."

Thus to have a purposive and meaningful interpretation of the provisions, the bar under S.163B that a claimant "shall file the claim either under S.140 or under S.163A" should be understood to mean that a claim for compensation that is pursued and maintained should be either under S.140 or 163A in one situation and in the other situation under S.163A or 166. In that view of the matter, a claimant in an application under S.163A of the Motor Vehicles Act is certainly entitled to amend the claim to be one under S.140 and 166. The bar is only that there cannot be a simultaneous claim under S.140 and 163A or S.163A and 166. In the instant case the application for amendment is to amend a petition filed under S.163A to one under S.140 read with S.166. Under law, as already stated above, the claimants are certainly entitled to such an amendment since the same is permissible under S.395 of the Act read with R.17 of O.6 CPC, and read with S.140, 163A, 163B and 166 of the Motor Vehicles Act.

19. Now, turning to the question as to whether it is permissible for

a Tribunal to allow a claimant to amend his application from the one made

under Section 166 to an application under Section 163A, what needs to be

noted is that the foundation for making an application under both the

proceedings are fundamentally different. In an application under Section

166, fault on the part of the driver of the vehicle involved in the accident

must be proved. However, the proof of such fault is dispensed with, when

an application is made under Section 163A. The bar under Section 163-B

that a claimant "shall file the claim either under Section 140 or under

Section 163-A" can only mean that a claim for compensation that is

pursued and maintained should be either under Section 140 or under

Section 163-A in one case scenario or under Section 163-A or under

Section 166 in the other scenario. In that view of the matter, a claimant in

an application under Section 166 of the Motor Vehicles Act is certainly

entitled to amend the claim to be one under Section 163A. The bar is only

that there cannot be a simultaneous claim under Sections 140 and 163-A

or Sections 163A and 166. In other words, the option has been left to the

claimant by the legislature. While the accident itself gives cause of action

for relaxation of compensation under Section 163A, the cause of action for

sustaining a claim under Section 166 is not merely the accident, but a

tortious act of failing to take care, which the owner or the driver of the

vehicle owes to the injured or the deceased, as the case may be. However,

in either case, the foundation for the claim is the accident, for, even in a

claim made under Section 166, the accident forms an integral and non

severable part of the cause of action.

20. This apart, as held by the Apex Court in Girishbhai Soni

(supra), the relevant provisions of the Act, which is undisputedly in the

nature of a social welfare legislation, are beneficial in nature. It is

intended to advance social justice and to provide succour to beleaguered

individuals during times of misery. Merely for the reason that the wife of

the deceased, who had no fixed income, gave an inflated amount at the

time of filing the claim petition is no reason to scuttle her request for

amendment of the application. The learned Tribunal has seriously erred in

rejecting the application for amendment on the ground that the entire

nature and character of the petition would be altered.

Resultantly, this writ petition will stand allowed. Ext.P3 order is set

aside. The IV Additional Motor Accidents Claims Tribunal shall consider

Ext.P2 application afresh and pass fresh orders.

Sd/-

                                          RAJA VIJAYARAGHAVAN V
   ps/26/1/2021                                       JUDGE





                            APPENDIX
   PETITIONER'S EXHIBITS:

   EXHIBIT P1            A TRUE COPY OF APPLICATION O.P(M.V)
                         1215 OF 2017 FOR COMPENSATION UNDER
                         SEC. 166 CLAIM PETITION BEFORE THE
                         MACT, KOLLAM.

   EXHIBIT P2            A TRUE COPY OF APPLICATION I.A. 245 OF
                         2019 FOR AMENDMENT OF SEC. 166 CLAIM
                         PETITION BEFORE MACT, KOLLAM DATED
                         09.08.2019.

   EXHIBIT P3            A TRUE COPY OF THE ORDER DISMISSING THE
                         EXT P2 I.A 245 OF 2019 APPLICATION BY
                         THE IVTH ADDITIONAL MACT, KOLLAM DATED
                         10.03.2020.

   RESPONDENTS EXHIBITS:NIL



                                           //TRUE COPY//

                                           P.A TO JUDGE