The Oriental Insurance Company ... vs Smt. K.Padmavathi
2023 Latest Caselaw 1737 Tel

      THE HON'BLE SMT. JUSTICE M. G. PRIYADARSINI

                 M.A.C.M.A. No.2652 of 2017

JUDGMENT:

This appeal is preferred by the Oriental Insurance

Company Limited, questioning the order and decree, dated

13.02.2017 passed in M.V.O.P.No.790 of 2014on the file of

the Chairman, Motor Accident Claims Tribunal-cum-

XIIIAdditional Chief Judge (FTC), City Civil Court, Hyderabad

(for short, "the Tribunal").

2. For the sake of convenience, the parties hereinafter

referred to as they are arrayed before the learned Tribunal.

3. The facts, leading to the present appeal in nutshell, are

as under:

The claimants, who are the mother-in-law and mother of

one K. Anuradha (hereinafter referred to as 'the deceased'),

filed claim-petition under Section 163-A of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') claiming

compensation of Rs.9,00,000/- for the death of the deceased

in a vehicular accident, which occurred on 18.03.2013. It is

stated that on the fateful day, at about 08:45 hours, while the

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deceased was proceeding on motor cycle bearing No. AP 10

BC 0856, as a pillion rider from Pillaipally village towards

picket, Secunderabad and when she reached Muthoot

Finance, Mettuguda, Secunderabad, she met with the

accident and died on spot. The concerned Police registered a

crime for the offence under Section 304-A I.P.C. The

claimants filed the aforesaid O.P. against respondent Nos.1

and 2, who are the owner and insurer of the motor cycle

respectively.

4. Before the Tribunal, while respondent No.1 remained ex

parte, respondent No.2 filed counter denying the allegations

in the petition and contended that there is contributory

negligence on the part of the driver of offending vehicle i.e.,

motor cycle bearing No. AP 10 BC 0856 who was riding the

bike in rash and negligent manner with high speed and met

with the accident. The age and income of the deceased at the

time of accident was also disputed. It is stated that the

compensation claim is excessive.

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5. The Tribunal, considering the claim and the counter

filed by the insurer of the offending vehicle, and on evaluation

of the evidence, both oral and documentary, has allowed the

said claim petition and awarded a total sum of

Rs.11,35,000/- as compensation along with the interest

@ 9% per annum from the date of filing of the claim petition

till the date of realization payable by respondent Nos.1& 2

jointly and severally. Challenging the same, the present

appeal is filed by the Insurance Company.

6. Learned counsel for the claimants sought to sustain the

impugned order passed by the Tribunal as the Tribunal had

adequately granted the compensation, as such, the same

needs no interference by this Court.

7. On the other hand, learned Standing Counsel for the

Insurance Company submits that the order of the Tribunal is

contrary to law, weight of evidence and probabilities of the

case. It is also submitted that the Tribunal grossly erred in

entertaining the claim petition and also making the Insurance

Company liable to pay compensation and entertaining though

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the accident occurred due to the gross negligence on the part

of the deceased, who was a pillion rider at the material time of

accident. It is further submitted that the Tribunal failed to

see the provisions of the Motor Vehicles Act before fixing the

liability on the Insurance Company. It is also submitted that

the Tribunal grossly erred in taking the annual income of the

deceased at Rs.60,000/- without any documentary evidence.

It is also submitted that the interest awarded by the Tribunal

is on higher side and it should not be more than 7.5% per

annum.

8. It is the main contention of the learned Standing

Counsel for the appellant, Insurance Company, that the

deceased was the wife of the insured who was riding the

insured vehicle and was admittedly responsible for the

accident and hence, the claim petition under Section 163-A of

the Act is not maintainable. But it is to be observed that the

deceased was in fact not the owner of the vehicle which was

otherwise owned by the respondent No. 1. In a claim case

under Section 163(A) of the Motor Vehicle Act, the question of

negligence and fault on the part of the driver of the offending

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vehicle need not be taken into consideration. Therefore, the

said contention is hereby rejected. Even the contention of the

learned Standing Counsel that the claimants being the

mother and mother-in-law of the deceased are not the legal

heirs and not entitled to maintain the claim petition is also

devoid of merits and the same is rejected.

9. In United India Insurance Co. Ltd. V. Sunil Kumar1

the Apex Court held as under:-

"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid Section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section

AIR 2017 SC 5710

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163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.

9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."

10. In the instant case also, the claimants filed claim-

petition under Section 163-A of the M.V. Act. Since the

claim-petition is filed under Section 163-A of the M.V. Act, it

is not open for the Insurance Company to raise any defence of

negligence on the part of the deceased. Therefore, the

contention of the learned Standing Counsel for the Insurance

Company as to the contributory negligence on the part of the

deceased is hereby rejected.

11. Insofar as the quantum of compensation is concerned,

the most important point which arises for consideration is,

"whether in the petitions filed under Section 163-A of the

M.V.Act, the ratio or law laid down by the Apex Court in

Smt.Sarla Verma v. Delhi Transport Corporation and

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another2; National Insurance Company Limited Vs.

Pranay Sethi and others3, or Reshma Kumari vs Madan

Mohan4 is applicable".

12. After gone through the above three cases carefully, this

Court is of the considered opinion that in those matters, the

Apex Court was considering applicability of proper multiplier,

proper deductions; compensation for the loss of future

prospects and proper compensation under conventional

heads, only in respect of the claims arising under Section 166

of the M.V.Act.

13. In paragraph 17 of the judgment in the case of "Smt.

Sarla Verma (2 supra) the Apex Court observed as under:-

"17. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia inserting Section 163A and the Second Schedule with effect from 14.11.1994. Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be

(2009) 6 SCC 121

2017 ACJ 2700

(2013) 9 SCC 65

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awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000/- to Rs.40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs.40,000/-, by applying the formula : (2/3 x AI x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation."

14. Even in National Insurance Company Ltd. Vs Pranay

Sethi and others (3 supra), the Larger Bench of the Apex

Court considered the applicability of proper multiplier,

compulsory deductions for personal expenses of the deceased,

additional compensation for the loss of future prospectus and

proper compensation under conventional heads that is loss of

consortium, loss of estate and funeral expenses, only in the

claim Petitions filed under Sections 166 of M.V. Act. Thus,

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the law laid down by the Apex Court in above referred cases is

not applicable in the claim petitions filed under section 163-A

of the M.V. Act.

15. In the case on hand, the claim petition is filed under

Section 163-A of the MV Act. Therefore, while determining the

compensation, only the structural formula formulated under

Section 163-A and Second Schedule of the M.V.Act can be

considered. As per the evidence on record, the deceased was

aged about 23 years as on the date of her death. Therefore,

as per the structural formula under Section 163-A Second

Schedule of M.V.Act, proper multiplier applicable in the case

on hand is '18' as adopted by the Tribunal. After considering

the evidence available on record, the Tribunal has taken the

income of the deceased at Rs.60,000/- per annum, which is

on higher side. Considering the facts and circumstance, this

Court is inclined to fix the income of the deceased at

Rs.40,000/- per annum, which is just and reasonable. From

this, 1/3rd is to be deducted towards personal expenses of the

deceased. After deducting 1/3rdamount towards her personal

and living expenses, the contribution of the deceased to the

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family comes to Rs.26,666/- per annum. Adopting multiplier

'18', the total loss of dependency comes to Rs.4,79,988/-

(Rs.26,666/- x 18). In addition to the above, the claimants

also entitled to Rs.2,000/- towards funeral expenses;

Rs.5,000/- towards loss of consortium and Rs.2,500/-

towards loss of estate. As observed above, the ratio of Pranay

Sethi (3 supra)is not applicable to the claim petition filed

under Section 163-A of the M.V.Act. Therefore, no

compensation can be added towards loss of future prospects.

So also, under conventional head, compensation of

Rs.77,000/- cannot be awarded, as contended by the learned

Counsel for the claimants. Thus, in all, the claimants are

entitled to just compensation of Rs.4,86,988/-.

16. Insofar as the rate of interest is concerned, the

claimants are entitled to interest @ 7.5% per annum on the

compensation awarded by the Tribunal from the date of

petition till realization, as per the decision of the Apex Court

in Rajesh and others v. Rajbir Singh and others5.

5 2013 ACJ 1403 = 2013 (4) ALT 35

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17. In the result, the MACMA is partly allowed by reducing

the compensation awarded by the Tribunal from

Rs.11,35,000/- to Rs.4,86,988/- which shall carry interest at

7.5% p.a. from the date of petition till the date of realization to

be payable by respondent No. 2. The enhanced amount shall

be apportioned between the claimants in the same proportion

in which original compensation amounts were directed by the

Tribunal. Time to deposit the compensation is one month

from the date of receipt of a copy of this judgment. No costs.

Pending Miscellaneous Applications, if any, shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

Date: 24.04.2023 gms/tsr

MGP, J Macma_2652_2017

THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

M.A.C.M.A. No.2652 of 2017

DATE: 24-04-2023

gms/tsr