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2005 DIGILAW 490 (HP)

UNITED INDIA INSURANCE CO. v. SHIV RAM

2005-12-23

DEEPAK GUPTA

body2005
JUDGEMENT Deepak Gupta, J.: This appeal under Section 173 of the Motor Vehicles Act ~ by the Insurance Company has been filed against the award of the Motor Accident Claim Tribunal, Kullu, in MAC Petition No. 14 of 2000 decided on 10.5.2002 whereby he has awarded a sum of Rs.1,42,000/- as compensation. 2. The claimants are the husband, sons and daughters of Smt. Lali. She was travelling in Bus No. HP-34-6525 belonging to Kullu Transport Company. The bus was driven by Tek Chand and was insured with the appellant Insurance Company. According to the claimants the bus was being driven rashly and negligently and one stone fell on the road from the hill side and the bus driver suddenly applied the brakes and due to the jerk Lali struck against the iron road placed on the seat in front of her and suffered injuries on the side of her breast She was brought to hospital where she died. 3. The respondents in their reply stated that in fact a huge boulder roller down toward the road from the hill side in front of the bus. To avoid any impact and casualties the driver had to suddenly apply brakes and stopped the bus. In case the brakes had not been applied there could have been a major disaster resulting in death and injury to a number of persons. It was claimed that there was no negligence on the part of the driver of the bus and hence the claim petition should be dismissed. 4. The learned Tribunal on the basis of the evidence led before it agreed with the respondents that the accident did not occur due to the rash and negligent driving of the driver of the bus. He in fact held that under the compulsion of the circumstances the driver was forced to bring the bus to a halt since he saw the big boulder falling on the road. The Tribunal however went on to hold that even though the petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the Act) may not be maintainable the petition could be converted into one under Section 163-A of the Act and the petitioners would be entitled for compensation under no fault liability under Section 163-A and has awarded Rs.1,42,000/- in all. 5. 5. The Insurance Company in the present appeal challenges the award on the ground that once it was proved that the accident had not occurred due to the rash and negligent driving of the driver of the bus no liability could be fastened upon the insurance Company. It is also alleged that in fact the deceased died due to cardiac respiratory failure and not due to the accident with the bus and as such also no claim was payable. 6. I have heard Mr. Harish Behl, learned counsel for the appellant and Mr. C.B. Singh, learned counsel for the claimants. 7. The first question which arises for decisions is whether the petition which was filed under Section 166 of the Act could be converted to one under Section 163-A of the Act? Mr.C.B. Singh in support of this proposition relies upon the judgment of the Rajasthan High Court in United India Insurance Co. Ltd. Vs. Smt Mehtab Bai and others, 2000 (1) T.A.C. 255 where a petition under Section 163-A was permitted to be converted under Section 166 of the Act He also relies upon certain observations of the Apex Court in The Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala, AIR 2001 SC 1832. 8. As far as the judgment of the Rajasthan High Court is concerned, in that case the petition was filed under Section 163-A of the Act even though the accident had occurred prior to 14.11.1994 when the said provision was inserted in the Motor Vehicles Act. In these circumstances the Court heW that the petition under Section 163-A was not maintainable and should be treated under Section 166 of the Act. The judgment of the Apex Court in Kodalas case in my views does not help the petitioners. This judgment clearly says that Section 163-A is an alternative to Section 166. The judgment in Kodalas case has been later considered by a three judge. Bench of the Apex Court in Deepal Girishbahi Soni and others vs. United Insurance Co. Ltd. Baroda, (2004) 5 SCC 285. In this case the Apex Court has made certain pertinent observations after referring to the relevant provision of the Motor Vehicles Act. The apex Court in Deepals case supra has held as follows: "42. Bench of the Apex Court in Deepal Girishbahi Soni and others vs. United Insurance Co. Ltd. Baroda, (2004) 5 SCC 285. In this case the Apex Court has made certain pertinent observations after referring to the relevant provision of the Motor Vehicles Act. The apex Court in Deepals case supra has held as follows: "42. Section 163-A was, thus, enacted from grant of immediate relief to a Section of the people whose annual income is not more than Rs.40,000/-having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made would appear from the different columns contained in the Second Schedule appended to the Act the same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended 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 litigation for proving that the accident occurred owing to negligence on the party of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle." After making the aforesaid observations the Apex Court also considered whether a claimant could file a petition both under Sections 163 and 166 of the Act. With regard to this question the Apex Court held as follows:- "52. It may be true that Section 163-8 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 abundati cautela so as to remove any misconception in the minds of the parties to the (is 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 x. 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. 53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby. (See Regional Director, ESI Corpn. V. Ramanuja Match Industries, (1985) 1 SCC 218.). 59. The question may be considered from different angles. As for example, if in the proceedings under Section 166 of the Act, after obtaining compensation under Section 163-A, the award fails to prove that the accident took place owing to negligence on the part of the driver of if it is found as of fact that the deceased or the victim himself was responsible therefore as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part of the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof? 60. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question to adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under Section 163-A of the Act is interim in nature." The Apex Court further went on to hold that the provisions of Section 163- could only be invoked by those victims where the annual income of the deceased/ injured was less than Rs. 40,000/- per annum. The relevant observations are as follows:- "67. 40,000/- per annum. The relevant observations are as follows:- "67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a Cap. In our opinion, the proceedings under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act" The clear-cut enunciation of law by the Apex Court is that the two remedies under Sections 163-A and 166 of the Act are separate and distinct remedies and any claimant has a right to opt for one of the two and cannot opt for both. In the present case the claimants opted to fie a claim petition under Section 166 of the Motor Vehicles Act Further the claimants alleged that the deceased was earning Rs. 4000/- per month i.e. Rs. 48,000/- per annum and, therefore, also the claimants in this case could not have invoked the provisions of Section 163-A. therefore, the learned Tribunal erred in holding that the claimants were entitled to compensation under Section 163-A even while rejecting their petition under Section 166 of the Act. 9. The next contention is that the accident does not arise out of the use of the motor vehicles accident In this behalf Mr. Behl submits that there is nothing on record to show that the deceased died as a result of the injuries sustained in the accident. The evidence on record shows that after the brakes were suddenly applied near village Sajhla the deceased Lali continued to sit in the bus till Nagar and at Nagar she and her companion got down. When Lali got down she had some pain in the chest and was taken to the hospital where she was declared dead. Dr. Satish Rana has been examined as PW-1. He has conducted the post mortem on Lali. According to him the death of the deceased had occurred due to myocardial infarction leading to cardio respiratory failure. He has also proved the post mortem j report Ext. Dr. Satish Rana has been examined as PW-1. He has conducted the post mortem on Lali. According to him the death of the deceased had occurred due to myocardial infarction leading to cardio respiratory failure. He has also proved the post mortem j report Ext. PW-1 /A. In this report no external or internal injury is shown to any part of the body of the deceased and the opinion of the doctor is that the deceased died due to myocardial infarction leading to cardio respiratory failure. In view of this medical evidence if cannot be said that the deceased died as a result of the use of the motor vehicle. 10. Mr.C.B. Singh, has cited a judgment of the Jammu and Kashmir High Court in National Insurance Co. Ltd. vs. Shiv Dutt Shanna, 2005 (1) TJLC. 404, where passengers travelling in a bus were taken out and killed by terrorists. In my opinion the ratio of that case does not apply since in that case the court specifically came to the conclusion that the bus crew had been negligent in not checking the bus. 11. In the present case it is clear that there was no negligence on the part of the bus driver of the bus crew since the brakes had been suddenly applied due to the boulder falling down. There is no proof that the claimant suffered any injury by the sudden application of the brakes. Even if it be assumed that she hit the road affixed on the seat in front of her, there is no evidence to show that her death which was a result of heart attack had any connection with the same. There is no evidence to show that there was any external or internal injury to her body or that the heart attack was caused because of the sudden application of brakes. It is also clear from the evidence that she did not died immediately at the site of the accident but travelled on to Nagar, got down from the bus and then complained of chest pain and was taken to Manali. All these facts go to show that there was no connection between the alleged injuries suffered in the accident and her death. In view of the above discussion, the appeal is allowed. The award of the Tribunal is set-aside and the claim petition is dismissed. All these facts go to show that there was no connection between the alleged injuries suffered in the accident and her death. In view of the above discussion, the appeal is allowed. The award of the Tribunal is set-aside and the claim petition is dismissed. There will be no order as to costs.