Telangana High Court

National Insurance Company Limited And ... vs Kosari Laxmi on 13 March, 2025

                                   1




      THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

                     M.A.C.M.A.NO.44 OF 2021

JUDGMENT:

This appeal is filed by the Insurance Company aggrieved by

the Order and Decree dated 15.05.2020 in M.V.O.P.No.144 of 2016

passed by the Motor Accident Claims Tribunal-cum-I Additional

District Judge, Adilabad (for short "the Tribunal").

2. For convenience and clarity, the parties herein are referred to

as they were arrayed before the Tribunal.

3. The case of the petitioners before the trial Court was that the

deceased was proceeding on a motorcycle from New colony, Sirpur-

T Pit Mohalla, along with relative Banda Diwakar and that when

they reached near Nagamma Cheruvu, suddenly, one lorry bearing

No.Ap-36-Y-2196 being driven by its driver in a rash and negligent

manner at high speed, dashed the motorcycle of the deceased as a

result of which the deceased fell down on the road and that the

lorry ran over his head, resulting in death of the deceased on the

spot. The wife and children of the deceased have filed a claim

petition before the trial Court.

4. The respondent Nos.1 and 3 who are the driver and owner of

the lorry remained ex-parte.

ETD,J MACMA No.44_2021

5. The respondent Nos.3 and 4-Insurance Company filed

counter denying the averments of the petition, the age, avocation,

income of the deceased and also the manner in which the accident

has occurred. They further contended that the accident occurred

due to the rash and negligence of the motor bike rider and that

there was no negligence of the lorry driver.

6. Based on the above pleadings, the Tribunal has framed the

following issues for consideration:-

1. Whether the accident dated 28.02.2016 was due to the rash and negligent driving of lorry bearing No.AP-36-Y-2196 and the said accident resulted in the death of deceased Kosari Ashok or whether there was any contributory negligence on the part of deceased?

2. Whether the petitioners are entitled for compensation. If so, to what amount and from whom?

3. To what relief ?

7. To prove their case, the petitioners got examined PWs 1 and

2 and Exs.A1 to A10 were marked. On behalf of the respondents

RW1 Was examined and Ex.B1 was marked.

8. Based on the evidence on record, the Tribunal has granted a

compensation of Rs.5,00,000/-. Aggrieved by the said order and

decree, the present appeal is filed by the insurance company.

9. Heard Sri Raj Kumar Grandhi, learned counsel for the

appellants and Sri S. Surender Reddy, learned counsel for the

respondents.

ETD,J MACMA No.44_2021

10. Learned counsel for the appellants has submitted that the

Tribunal has erred in fixing the liability on the Insurance Company

and that it has grossly committed an error by converting the

application under Sections 166 to 163-A of the M.V Act and went

ahead in awarding compensation, without there being any

application by the claimants. Therefore, they prayed to set aside

the orders passed by the Tribunal by allowing this appeal.

11. Learned counsel for the respondents has argued that too

technical approach in deciding the motor accident claims is not

proper and that the Tribunal has rightly granted the compensation

by treating the petition to be under Section 163-A because, it is a

beneficial legislation. He therefore, prayed to uphold the order and

decree passed by the trial Court.

12. Perused the record.

13. Based on the above rival contentions, this Court frames the

following points for determination:

"1) Whether the claim petition filed under Section 166 can be converted to that of Section 163-A of the M.V Act ? If so can the Tribunal do it suo-motu?

2) Whether the insurer of motor bike is a necessary party to the petitioners claim?

3) Whether the order and decree dated 15.05.2020 passed by the trial Court need any interference?

       4)    To what relief?"
                                                                               ETD,J
                                                                  MACMA No.44_2021




14.   POINT NO.1:

a)    The main question that arises for consideration in this

appeal is that whether the petition filed under Section 166 of the

M.V.Act can be converted to that under Section 163-A of the

M.V.Act.

b) Since, the main question revolves around Section 166 and

Section 163-A of the M.V Act, the relevant provisions are extracted

herein for the sake of reference:-

Section 166:- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of the 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.

1 [(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.] ETD,J MACMA No.44_2021

2***** [(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.]

Section 163-A:- (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.

Section 165- Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

Explanation:-.For the removal of doubts, it is hereby declared that the expression claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles includes claims for compensation under Section

164.

(2). A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3). A person shall not be qualified for appointment as a member of a Claims Tribunal unless he(a)is, or has been, a Judge of a High Court, or(b)is, or has been, a District Judge, or(c)is qualified for appointment as a High Court Judge [or as a District Judge.

ETD,J MACMA No.44_2021

(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.

Thus a plain reading of the above provisions makes it clear

that under Section 163-A, the claimant need not prove rash and

negligence of the driver of the offending vehicle and it is based on

no fault liability while in claim petition under Section 166 of the

M.V Act; the petitioner has to plead and prove the rash and

negligence of the driver of the offending vehicle.

c) In Deepal Girish Bhai Soni Vs. United Insurance

Company Limited 1, it was held by the Apex Court that the

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 there under

simultaneously. Therefore, it must be held that the scheme of the

provisions under Section 163-A and 166 are distinct and separate

in nature and the relevant provisions of the Act are beneficial in

nature.

d) In Rukmani Devi Vs. New India Assurance Company

Limited 2, the High Court of Delhi has observed that it is a

beneficial piece of legislation and, therefore, endeavour has to be as

to how best the intention of the legislature can be achieved so as to

(2004) 5 SCC 385

2009 ACJ 2202 ETD,J MACMA No.44_2021

safeguard the interest of the victims of the accident rather than

defeating the same. It is the duty of the Courts to interpret the

statute to see that the true intention of legislature is achieved. It is

further observed that, Section 163-A of the M.V Act was introduced

in the Act by way of a social security scheme but payment of

compensation under Section 163-A and under Section 166 are

independent of each other and statutorily provided, a claimant

cannot pursue both the remedies simultaneously. It was held that

by virtue of the law laid down in Deepal Girish Bhai Soni's case

cited (supra 1), it becomes manifest that the bar is on taking

simultaneous remedies under Sections 163-A and 166 of the M.V

Act, but there cannot be any bar that the claimant cannot choose

at any stage of the case to convert their petition from Section 166

to Section 163-A of the M.V Act and that the only restriction

created by the Statute under Section 163-A of the M.V Act is that

the said provision is meant only for those whose annual income is

upto Rs.40,000/- and all other claimants can approach the

Tribunal under Section 166 of the M.V Act.

e) In United India Insurance Company Limited Vs.

Madhavan M 3, it was held by the High Court of Kerala that the

right of the claimant to request that his claim lodged initially under

2011 SCC Online Ker 4212 ETD,J MACMA No.44_2021

Section 166 of the Motor Vehicles Act may be converted and

treated as one under Section 163-A of the Motor Vehicles Act

cannot possibly be doubted. Deepal Girishbhai Soni (supra 1)

does not fetter the option of the claimant who chooses to press the

claim either under Section 166 or under Section 163-A of the

Motor Vehicles Act if the claim under the other section has not

been decided and ordered earlier.

f) In Prem Devi Vs. Jagdish Kumar 4, the claim petition

preferred under Section 166 of the M.V Act was dismissed by the

Tribunal on the ground that the negligence on the part of the driver

of the crime vehicle was not established. At the time of hearing the

appeal, a statement was made by learned counsel for the

appellants that the appeal may be converted to one under Section

163-A of the Act and the compensation may be awarded on the

basis of the structured formula. The Delhi High Court has

examined the question as to whether if a petition under Section

166 of the Act is dismissed for want of proof of negligence on the

part of the alleged tortfeasor, would a subsequent petition under

Section 163-A on the same cause of action be barred. It was held

that Admittedly, in the subsequent petition under Section 163-A of

the Act, the claimant would not be required to prove and plead the

2012 SCC Online Del 3301 ETD,J MACMA No.44_2021

negligence. The subsequent petition would not be barred under

Order-II Rule-2 CPC as the claim under Section 163-A of the Act

was not permissible in the earlier petition. Thus, when there is no

prohibition or embargo on filing a petition under Section 163-A

after dismissal of a Petition under Section 166 of the Act, a victim

cannot be debarred from amending a Petition under Section 166 to

one under Section 163-A of the Act.

It was further held that, on the basis of Supreme Court

decision in Deepal Girishabhai Soni (supra 1) , it can be said that

the Claims Tribunal cannot suo-moto convert a petition under

Section 166 to the one under Section 163-A of the Act if negligence

is not proved. Girishabhai Soni (supra) does not foreclose the right

of a party to convert a Petition under Section 166 to under Section

163-A in an Appeal if a Claimant otherwise satisfies the Court that

the amendment should be allowed.

g) In United India Insurance Company Limited Vs. Rita

Devi 5, again the Delhi High Court was confronted with the similar

question of whether the claim petition filed and decided under

Sectionn 166 of the M.V Act can be converted into one under

Section 163-A of the M.V Act. In this case, the claim petition which

was filed under Section 166, the Tribunal concluded that rash and

2014 SCC Online-Del 7523 ETD,J MACMA No.44_2021

negligent driving of the driver of the truck is not established, but

has held that the Court can take recourse to Section 163-A and

grant relief, even if rash and negligent driving is not proved and the

Tribunal has thus permitted the claimants to convert the petition.

The Delhi High Court has discussed Deepal Girishbhai Soni

(supra 1) and has held that the bar is on taking simultaneous

remedies under Section 163-A and 166 of the M.V Act. But there

cannot be any bar that the claimant cannot choose at any stage of

the case to convert their petition from Section 166 to Section 163-A

of the M.V Act. Denying such right of conversion, during the

pendency of case would defeat the very social objective of granting

speedy and expeditious compensation to the victims of the accident

cases.

h) In Valsamma Chacko and Another Vs. M.A. Titto and

Others 6, the claim petition made under Section 166 was dismissed

by the Tribunal observing that the accident occurred due to the

negligence of the driver of the crime vehicle. The same was

challenged before the High Court and the High Court has upheld

the rejection. At the stage of appeal, a plea was made by the

claimants for treating their claim petition under Section 163-A.

However, the High Court adhering to the decision in Deepal

2025 Live Law (SC) 271 ETD,J MACMA No.44_2021

Girishbhai Soni (supra 1) declined the same. Against this

background, this matter came up before the Apex Court. The Apex

Court has held that in cases where no claim has been made out

under Section 166, the Tribunal may give an opportunity to the

claimants to convert their claim under Section 163-A, even if not

sought voluntarily by them. Further, it was opined that in the

present case where owner and insurer of both the vehicles were

made a party, a 'no fault liability' could be imposed on the insurer

of the other vehicle as a third-party claim.

i) It was further held in Valsamma Chacko case (supra 6) at

paragraph No.11 "indeed, the finding that if the accident occurred due to the

fault of one's own driver, but even in such a case, the claimants would be

prohibited from moving an application under Section 163-A of the Act; if they had

unsuccessfully moved an application under Section 166 of the Act, is a difficult

proposition in law to be accepted; especially given the beneficial nature of the

provision which is also one incorporated, notwithstanding the other provisions of

the Act or any other law in force." By observing so, the Apex Court has

referred the matter to the Honourable Chief Justice of India for

constituting a three-Judge Bench for re-consideration of the issue.

j) In the present case, the petition was filed under Section 166

of the M.V Act, but however, the rash and negligence of the

offending driver could not be proved by the petitioner. A perusal of

the complaint and the charge sheet reveals that the deceased lost ETD,J MACMA No.44_2021

his balance over the vehicle and fell down on the road, when he

saw tipper coming in the opposite direction, and as he fell down on

the road, the rear tyre of the said tipper ran over the head of the

deceased due to which he suffered crush injury on the head and

died on the spot. Since, it is borne out by record that the deceased

lost his balance and fell down from the motor bike, the insurance

company has strongly contended that the bike rider was not

confident and so he could not control the motor bike and fell down

and that it is only due to his negligence that the accident occurred.

However, the trial Court after hearing both the counsel on record

has observed that though the rash and negligence of the driver of

tipper is not proved by the claimant, it can be as well held that the

accident occurred out of the use of tipper and therefore, the owner

and insurer of the tipper are made liable to pay compensation and

he further held that though it is a petition filed under Section 166

of the M.V Act, it can be safely converted into that of Section 163-A

of the M.V Act. Then the application under Section 166 was suo-

motu converted into that under Section 163-A by the Tribunal.

k) In view of the statutory position and also in the light of the

decisions laid down by the Apex Court in Deepal Girishbhai Soni

(supra 1) and Valsamma Chacko (supra 6), it is held that the

petition filed under Section 166 can be converted into that of ETD,J MACMA No.44_2021

Section 163-A to help the victims. Since the matter is being

referred to a larger bench of the Supreme Court, this Court refrains

from expressing any opinion about the suo-motu conversion of

claim petition from Section 166 to 163-A of M.V Act by the Courts.

However, it is clear from the above precedents that, the objective of

the legislation is to compensate the victims who have suffered a

loss due to an accident. In a death case, it is the loss of life which

nobody can compensate but as a solace, some compensation is

awarded to the bereaved family members. So also in the case of

injuries, if the petitioners are not able to prove the rash and

negligence of the driver of the offending vehicle and if the claim

petition cannot be considered under Section 163-A, the petitioner

would be left without any compensation. In the present case, the

Tribunal has awarded a compensation of Rs.5,00,000/- to the

claimants by taking re-course to Section 163-A in a petition filed

under Section 166 of M.V Act without there being any application

by the claimants and the claimants have withdrawn 50% of the

awarded amount. Thus, in the fact and circumstances, it is held

that the suo-motu action of the Tribunal in converting the

application under Section 166 to that of Section 163-A is justified.

ETD,J MACMA No.44_2021

15. POINT NO.2:

The deceased was proceeding on motor bike, he lost his

balance as he saw the tipper coming in the opposite direction, fell

down from the bike and was ran over by the tipper. The contention

of the claimants is that the accident occurred due to the use of

tipper vehicle bearing No.AP-36-Y-2196, and thus the owner and

insurer of tipper are made parties to the petition. While the

appellants contend that since he was proceeding on a bike and fell

down, the owner of bike is also necessary party and that the claim

petition is bad for non-joinder of the necessary party.

l) It is pertinent to refer to Order-1, Rule-IX of C.P.C and the

same is extracted hereunder for the sake of reference:-

" No suit shall be defeated by reason of the mis- joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party."

m) A necessary party is one without whom a case cannot be

decided in its finality. In the present case, the accident occurred

when the deceased fell down from the bike and was ran over by

tipper. Now the question remains; whether the petition can be

maintained even without the presence of the insurer of the motor

bike. The insurer of bike would be a proper party, but not a

necessary party. Even without the insurer of motor bike being a ETD,J MACMA No.44_2021

party to the proceedings, the case can be proceeded with and the

compensation can be awarded. Therefore, it is held that the insurer

of motor bike is not a necessary party and that the petition is not

bad for its non-joinder.

Therefore, point No.2 is answered against the appellant and

in favour of the respondents.

16. POINT NO.3:

In view of the reasoned findings, arrived at point Nos.1 and

2, this Court holds that the Order and Decree dated 15.05.2020

passed in M.V.O.P.No.144 of 2016 by the Motor Accident Claims

Tribunal-cum-I Additional District Judge, Adilabad, do not need

any interference.

17. POINT NO.4:

In the result, the appeal is dismissed upholding the Order

and Decree dated 15.05.2020 in M.V.O.P.No.144 of 2016 passed by

the Motor Accident Claims Tribunal-cum-I Additional District

Judge, Adilabad. No costs.