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2006 DIGILAW 2036 (PNJ)

National Insurance Company Limited v. Baljit Kaur

2006-05-11

VINOD K.SHARMA

body2006
Judgment Vinod K. Sharma, J. 1. This appeal has been filed by National Insurance Co. Ltd. against the judgment/award passed by the learned Motor Accidents Claims Tribunal, rup Nagar (for short the Tribunal) under sec. 163-A of the Motor Vehicles Act, 1988 . 2. The brief facts of the case as brought out in the claim petition are that on 3.3.2000 some unknown persons snatched an amount of Rs.2,300 from one Tirath Ram, while he was proceeding on tractor No. PB 12-B 1813 from Chamkaur Sahib to his village bassi Gujaran. The culprits after snatching the amount slipped away on scooter No. PB 12-4771 and on alarm being raised Ranjit singh and Jatinder Singh stopped their scooter and thereupon Tirath Ram narrated the incident of snatching. The said persons took Tirath Ram on the pillion of their scooter and started following the unknown culprits. Lakhwinder Singh deceased and kishan Singh met them on the way and the whole incident was narrated to them also. Kishan Singh and Lakhwinder Singh also joined them in following the culprits and the police party of Bela Chowk also joined them in search of the culprits by making efforts to stop scooter No. PB 12-4771. Said culprits took a turn towards Behrampur and when they reached in the area of village Wajidpur, they intentionally turned their scooter with intention to obstruct scooter of Lakhwinder singh bearing registration No. CH 01-B 3473 to dissuade him and it was on account of wrong driving of the culprits that the scooter of Lakhwinder Singh got deflated and became out of control which struck against a shisham tree planted by the roadside and resultantly, he received multiple injuries and finally succumbed to his injuries. The accident, thus, was the result of use of scooter No. CH 01-B 3473 when the culprits tried to dissuade him from following them. It was pleaded that due to the wrong driving of culprits the accident had taken place. F. I. R. No.15 dated 3.3.2000 under sections 356, 207, 279 and 304, indian Penal Code, was registered in Police station, Chamkaur Sahib. The deceased at the time of his death was 32 years of age and was employed in Food Corporation of india as labourer at Chamkaur Sahib and was also carrying on his agricultural work and dairy farm. F. I. R. No.15 dated 3.3.2000 under sections 356, 207, 279 and 304, indian Penal Code, was registered in Police station, Chamkaur Sahib. The deceased at the time of his death was 32 years of age and was employed in Food Corporation of india as labourer at Chamkaur Sahib and was also carrying on his agricultural work and dairy farm. It was the case of the claimants that they were entirely dependent on the income of deceased Lakhwinder Singh and due to the sudden termination of his life in the said accident, they suffered huge mental, financial and social loss. The said scooter was owned by the respondent Nos.1 and 2 and the same was insured with national Insurance Co. Ltd. , respondent no.3. The parents of Lakhwinder Singh, i. e. , Sadhu Singh and Lakshmi Kaur were joined as pro forma respondents. On these pleadings petition for compensation was filed. 3. Lakhbir Singh, respondent No.1, did not contest the claim, who was proceeded ex parte, whereas the claim was contested by the respondent No.2 pleading that Lakhbir singh was the owner of the scooter in question and Ranjit Singh had nothing to do with the same. National Insurance Co. Ltd. separately contested the claim petition by taking preliminary objection that the claim petition against the insurance company was not maintainable as the driver of scooter No. CH 01-B 3473 was not holding a valid and effective driving licence issued by the competent authority at the time of the accident. It was also pleaded that the claim petition was bad for non-joinder and misjoinder of necessary parties as insurer of scooter No. PB 12-4771 had not been impleaded as a party. However, on merit it was admitted that the scooter No. CH 01-B 3473 was insured with the answering respondent. It was denied that any accident took place with scooter No. CH 01-B 3473. It was also the case of the insurance company that the claim petition has been filed to claim illegal compensation. 4. Respondent Nos.4 and 5 supported the case of the claimants and prayed for the grant of compensation to them also. 5. On the pleadings of the parties the learned Tribunal was pleased to frame the following issues: (1) Whether death of Lakhwinder Singh took place on 3.3.2000 in the area of village wajidpur out of the use of scooter no. CH 01-B 3473? 5. On the pleadings of the parties the learned Tribunal was pleased to frame the following issues: (1) Whether death of Lakhwinder Singh took place on 3.3.2000 in the area of village wajidpur out of the use of scooter no. CH 01-B 3473? OPP (2) Whether the claimants are the only legal representatives and dependants of the deceased? OPP (3) Whether the deceased Lakhwinder singh was not holding a valid driving licence at the time of accident? OPR (4) Whether the claim petition is bad for non-joinder and misjoinder of necessary parties? OPR (4-A) Whether scooter No. CH 01-B 3473 was being driven in violation of the terms and conditions of the insurance policy? OPR (5) Whether the claimants are entitled to claim compensation? If so, to what amount and from whom? OPP (6) Relief. 6. Issue Nos.1, 2 and 3 were taken up together and it was held by the learned tribunal that death of Lakhwinder Singh took place out of use of scooter No. CH 01-B 3473 and the claimants along with Sadhu singh and Lakshmi Kaur were held to be the legal heirs of the deceased. It was also held that Lakhwinder Singh held a valid driving licence at the time of the accident. Issue No.4 was also decided against the respondent insurance company and it was held that the claim petition was not bad for misjoinder and non-joinder of necessary parties. On issue No.4-A, it was held that scooter was not being driven for organised racing. Rather, Lakhwinder Singh was helping the other persons for chasing the culprits and naturally issue No.4-A was also decided against the respondents. On issue No.5, the learned Tribunal noticed that at the time of the accident the deceased was earning rs.10,000 per month and no evidence was led in rebuttal and by relying upon a judgment of this court reported as National insurance Co. Ltd. V/s. Indu Shama, 2000 acj 808 (Pandh), learned Tribunal came to the conclusion that the claim petition was maintainable. Learned Tribunal in view of the provisions of sec. Ltd. V/s. Indu Shama, 2000 acj 808 (Pandh), learned Tribunal came to the conclusion that the claim petition was maintainable. Learned Tribunal in view of the provisions of sec. 163-A of the Act held that the income of the deceased was to be considered as Rs.40,000 only, and keeping in view the age of the deceased a multiplier of 17 was applied and compensation to the tune of Rs.4,53,340 was awarded in favour of the claimants along with a sum of Rs.2,000 for funeral expenses and rs.5,000 for loss of consortium and in this way total compensation was awarded to the tune of Rs.4,60,340 against Lakhbir Singh and National Insurance Co. Ltd. and the liability was held to be joint and several. The compensation was apportioned between the claimants and respondent Nos.4 and 5. Costs of the petition were also awarded. 7. Mr. L. M. Suri, learned senior counsel appearing for the appellant by placing reliance on the judgment of Hon ble Supreme court reported as Deepal Girishbhai Soni v. United India Insurance Co. Ltd. , 2004 acj 934 (SC), argued that provisions of sec. 163-A of the Act are in the nature of social welfare provision providing for a distinct scheme and only those persons whose annual income is up to Rs.40,000 could take the benefit thereof and other claims were required to be determined in terms of Chapter XII of the Act. Para 67 of the judgment is reproduced as below: "we, therefore, are of the opinion that kodala s case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of sec. 163-A, the annual income of Rs.40,000 shall be treated as a cap. In our opinion, the proceeding under sec. 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 the other claims are required to be determined in terms of Chapter XII of the Act. " 8. The Hon ble Supreme Court was further pleased to hold that the compensation under secs. 163-A and 166 are final and independent of each other as was statutorily provided and, therefore, it was not open to pursue the remedy simultaneously. 9. All the other claims are required to be determined in terms of Chapter XII of the Act. " 8. The Hon ble Supreme Court was further pleased to hold that the compensation under secs. 163-A and 166 are final and independent of each other as was statutorily provided and, therefore, it was not open to pursue the remedy simultaneously. 9. Learned counsel for the appellant also placed reliance on a Division Bench judgment of this court in the case of Himachal road Trans. Corpn. V/s. Baldev Kumar nayyer, 2007 ACJ 678 (Pandh), to contend that the Tribunal cannot treat the petition filed under sec. 166 of the Act under sec. 163-A by restricting the income to rs.40,000. In the said case, this court by placing reliance on Deepal Girishbhai sonis case, 2004 ACJ 934 (SC), set aside the award passed under sec. 163-A of the Act and remanded the case back for decision on the petition filed under section 166 of the Act in accordance with law. 10. Nobody has put in appearance on behalf of the respondents. 11. The learned Tribunal had allowed the claim petition filed under sec. 163-A of the Act by relying upon the judgment of Hon ble single Judge of this court in Indu sharma s case, 2000 ACJ 808 (Pandh), by holding that the reading of sec. 163-A did not indicate that this was to apply only if annual income of the deceased was within the range of Rs.40,000. The Hon ble single Judge came to the conclusion that close scrutiny of the Second Schedule showed that the legislature has specified various multipliers keeping in view the age of the victims and further guidelines have been given about the other amounts of compensation under various heads such as funeral expenses, loss of consortium and loss to estate. However, in view of the judgment of the Hon ble Apex Court which is relied upon by the Division Bench of this court, it cannot be said that the said judgment lays down good law and can be deemed to have been impliedly overruled. 12. It has been categorically laid down by the Hon ble Supreme Court in the case of Deepal Girishbhai Sonis case, 2004 acj 934 (SC) that the provisions of section 163-A of the Act would be applicable if the income is up to Rs.40,000 per annum and to no other person. 12. It has been categorically laid down by the Hon ble Supreme Court in the case of Deepal Girishbhai Sonis case, 2004 acj 934 (SC) that the provisions of section 163-A of the Act would be applicable if the income is up to Rs.40,000 per annum and to no other person. The Hon ble Division bench of this court by relying upon the judgment of Hon ble Supreme Court in deepal Girishbhai Sonis case (supra) has further laid that a petition under sec. 166 of the Act cannot be treated to be one under sec. 163-A by restricting the income at rs.40,000 per annum. 13. It is not in dispute that in the present case, the income of the deceased was shown to be Rs.10,000 per month and, therefore, the claimants were not entitled to invoke the provisions of sec. 163-A of the Act. Therefore, I agree with the contention raised by the learned counsel for the appellants that petition under sec. 163-A of the Act, in the present case, was not competent. It has not been shown whether any application under sec. 166 of the Act was also filed and, therefore, no comments are called on this aspect of the matter. 14. In view of the finding recorded above, this appeal is accepted and the award of the learned Tribunal is set aside by holding that application under section 163-A of the Act was not competent. Appeal allowed.