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Madhya Pradesh High Court · body

2009 DIGILAW 250 (MP)

RAMLALI TIWARI v. VRINDAVAN TIWARI

2009-02-19

DIPAK MISRA, K.K.LAHOTI, RAJENDRA MENON

body2009
Judgment ( 1. ) A Division Bench of this Court vide order dated 16. 10. 2006 in this Misc. Appeal No. 2228/2003 (Smt. Ramlali Tiwari and another Vs. Vrihdavan tiwari and another) has referred following question of law for consideration by a larger Bench :- "whether in a claim ease when the claimant filed an application under section 166 of the Act, contested the case on merits and after dismissal of the claim petition on merits, in appeal the claimant may be permitted to convert his application under section 163-A of the Act. " ( 2. ) THE Division Bench found that another Division Bench of this Court in Smt. Mayabai Tomar and others Vs. Sheikh Rasheed and others M. A. No-1462/1999 dated 24. 2. 2005 reported in [2005 (II) MPWN Note 21] had indirectly permitted claimant to convert his application from section 166 to section 163-A of the Motor vehicles Act, 1988 (hereinafter referred to as act for short) while in view of law laid down by the Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. , Baroda [ (2004)5 SCC 385 ] = (2004 AIR SCW 1464) such recourse was not available to the claimant. ( 3. ) LEARNED counsel for claimants submitted that there is no specific bar in the act prohibiting such conversion. Section 163-A of the Act was introduced by the parliament by amendment (54 of 1994) w. e. f. 14. 11. 1994 as it was a subsequent amendment after coming into force of the Act w. e. f. 1. 7. 1989. The permission as sought by the appellants/claimants ought to have been granted and the judgment of Smt. Mayabai Tomar is in accordance with law. It was further submitted that the Full Bench of Karnataka High Court in Guruanna Vadi and another Vs. General Manager, Karnataka State Road Transport Corporation and another ( 2001 ACJ 1528 ) has specifically held that an application filed under section 166 of the Act may be converted into an application under section 163-A of the Act. He had also relied on Division Bench judgment of Andhra Pradesh High Court in kore Laxmi and others Vs. United India Insurance Co. Ltd. , and others ( 2005 acj 543 ) and a Single Bench judgment of Gujarat High Court in Narshiji Nagaji majirana Vs. Mangilal Amturam Bishnoi and others ( 2005 ACJ 19 ). He had also relied on Division Bench judgment of Andhra Pradesh High Court in kore Laxmi and others Vs. United India Insurance Co. Ltd. , and others ( 2005 acj 543 ) and a Single Bench judgment of Gujarat High Court in Narshiji Nagaji majirana Vs. Mangilal Amturam Bishnoi and others ( 2005 ACJ 19 ). ( 4. ) SHRI S. K. Rao, learned Sr. Adv. , appearing on behalf of respondent submitted that in view of the specific provision in section 163b of the Act such recourse was not permissible. The statute itself specifically provides that a person would be entitled to claim compensation under section 140 and 163-A, but he should file the claim under either of the sections and not under both, so the claimants before filing of application ought to had chosen the provision under which claimants were claiming compensation. After a decision in the claim petition on merits, rejecting an application under section 166 of the Act, in appeal such permission cannot be allowed to convert the claim petition under section 163-A of the Act. Reliance was placed to the Apex Court judgment in Deepal Girishbhai (supra ). ( 5. ) IN this case the question of law referred by the Division Bench is very specific and we have to examine whether after dismissal of application under section 166 of the Act, which was contested on merits before the trial Court, in appeal the claimant may be permitted to convert his application under section 163-A of the Act. The claimants who were wife and son of Late Ashrafilal Tiwari filed their claim petition under section 166 of the Act claiming Rs. 25,20,000/- as compensation. The husband of appellant no. 1 Ashrafilal was an Accountant in the office of Commissioner Tribal Welfare Department, Bhopal and was posted at Shahdol. He was drawing Rs. 6,660/- salary and at the time of death he was 35 years old. On 30. 11. 2001 the date on which accident occurred he was in the village. The father of the deceased purchased a tractor just few days before the death of deceased and asked the deceased to help in agricultural work on an assurance that he shall be paid the same amount which he was drawing from the government Department. The deceased on such assurance was helping his father in agricultural work. The deceased was having valid licence to drive tractor. The deceased on such assurance was helping his father in agricultural work. The deceased was having valid licence to drive tractor. On the date of accident he was in the field belonging to his father and was using the tractor for agricultural work. The tractor was fitted with cultivator and when he was reversing the tractor all of a sudden tractor gone out of control and fell down in the well. The deceased alongwith the tractor fell in the well and came down below the tractor resulting in his death. On the aforesaid facts wife and son of the deceased claimed compensation, on various counts, for Rs. 25,20,000/- against the respondents. ( 6. ) THE respondents contested the case: The defence of respondent no. 1 owner of the vehicle was that he was not liable for compensation as his tractor was insured with respondent no. 2 the insurer. The respondent no. 2 contested the case on various grounds including that the deceased was not in the employment of respondent no. 1, but was driving the tractor as son of respondent no. 1. There was no relationship between the respondent no. 1 and deceased, of master and servant, so the insurance company was not liable to pay the compensation. ( 7. ) THE Tribunal on the pleadings framed issues, recorded evidence and dismissed the claim petition on the ground that the deceased was not in the employment of respondent no. 1 at the time when he was driving the tractor and accident occurred resulting in death, of Ashrafilal. The accident occurred because of negligence of the deceased and insurance company was not liable for payment of compensation. Though the Tribunal found that at the time of accident the tractor was insured with respondent no. 2 and there was no breach of terms of the policy. ( 8. ) AGAINST the dismissal of claim petition by the Motor Accident Claims Tribunal, rewa in claim case no. 77/2003, the claimants filed an appeal before this Court which is registered as M. A. No. 2228/2003. In the appeal, the appellants filed an application on 20. 1. 2004 for considering the claim petition under section 163-A of the Act. ( 9. ) AGAINST the dismissal of claim petition by the Motor Accident Claims Tribunal, rewa in claim case no. 77/2003, the claimants filed an appeal before this Court which is registered as M. A. No. 2228/2003. In the appeal, the appellants filed an application on 20. 1. 2004 for considering the claim petition under section 163-A of the Act. ( 9. ) TO consider the question referred by the Division Bench it would be appropriate if releyant provisions, sections 140, 166, 163a and 163b of the Act are referred, which reads as under :- Act, which was contested on merits before the trial Court, in appeal the claimant may be permitted to convert his application under section 163-A of the Act. The claimants who were wife and son of Late Ashrafilal Tiwari filed their claim petition under section 166 of the Act claiming Rs. 25,20,000/- as compensation. The husband of appellant no. 1 Ashrafilal was an Accountant in the office of Commissioner Tribal Welfare Department, Bhopal and was posted at Shahdol. He was drawing Rs. 6,660/- salary and at the time of death he was 35 years old. On 30. 11. 2001 the date on which accident occurred he was in the village. The father of the deceased purchased a tractor just few days before the death of deceased and asked the deceased to help in agricultural work on an assurance that he shall be paid the same amount which he was drawing from the government Department. The deceased on such assurance was helping his father in agricultural work. The deceased was having valid licence to drive tractor. On the date of accident he was in the field belonging to his father and was using the tractor for agricultural work. The tractor was fitted with cultivator and when he was reversing the tractor all of a sudden tractor gone out of control and fell down in the well. The deceased alongwith the tractor fell in the well and came down below the tractor resulting in his death. On the aforesaid facts wife and son of the deceased claimed compensation, on various counts, for Rs. 25,20,000/- against the respondents. ( 6. ) THE respondents contested the case: The defence of respondent no. 1 owner of the vehicle was that he was not liable for compensation as his tractor was insured with respondent no. 2 the insurer. The respondent no. 25,20,000/- against the respondents. ( 6. ) THE respondents contested the case: The defence of respondent no. 1 owner of the vehicle was that he was not liable for compensation as his tractor was insured with respondent no. 2 the insurer. The respondent no. 2 contested the case on various grounds including that the deceased was not in the employment of respondent no. 1, but was driving the tractor as son of respondent no. 1. There was no relationship between the respondent no. 1 and deceased, of master and servant, so the insurance company was not liable to pay the compensation. ( 7. ) THE Tribunal on the pleadings framed issues, recorded evidence and dismissed the claim petition on the ground that the deceased was not in the employment of respondent no. 1 at the time when he was driving the tractor and accident occurred resulting in death, of Ashrafilal. The accident occurred because of negligence of the deceased and insurance company was not liable for payment of compensation. Though the Tribunal found that at the time of accident the tractor was insured with respondent no. 2 and there was no breach of terms of the policy. ( 8. ) AGAINST the dismissal of claim petition by the Motor Accident Claims Tribunal, rewa in claim case no. 77/2003, the claimants filed an appeal before this Court which is registered as M. A. No. 2228/2003. In the appeal, the appellants filed an application on 20. 1. 2004 for considering the claim petition under section 163-A of the Act. ( 9. ) TO consider the question referred by the Division Bench it would be appropriate if releyant provisions, sections 140, 166, 163a and 163b of the Act are referred, which reads as under :- "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 I from an accident arising out of the use of a motor vehicle or motor vehicles, the 1 owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, I 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. 166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in subjection (1) of section 165 may be made -. 166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in subjection (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. (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. 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 or 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 Workmens Compensation Act, 1923 (8 of 1923 ). Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens 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 ander either of the said sections and not under both. " Section 140 of the Actprovides liability to pay compensation on the principle of no fault liability. This section provides maximum limit of compensation in respect of death of any person for Rs. 50,000/- and in respect of permanent disablement of any person for Rs. 25,000/ -. The proviso of sub-section (5) provides that the amount of compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163a. Meaning thereby that the legislation has treated section 140 and section 163a at par and while considering these two applications i. e. Section 140 or 163a, any amount paid earlier by way of compensation under any other law was liable to be reduced from the amount of compensation payable under either of the sections. , section 166 of the Act provides application for compensation. Proviso of sub-section (2) provides that where any claim for compensation under section 140 is made, in such a case the application shall contain a separate statement to that effect immediately before the signature of the applicant: Meaning thereby in an application under section 166 of the Act relief under section 140 can be claimed. Section 163a of the Act provides special provision as to payment of compensation on structured formula basis. Structured formula has been provided in second schedule of the Act. Section 163b specifically provides that where the person is entitled to claim compensation under section 140 and. Section 163a of the Act provides special provision as to payment of compensation on structured formula basis. Structured formula has been provided in second schedule of the Act. Section 163b specifically provides that where the person is entitled to claim compensation under section 140 and. 163a he shall file claim either of sections and not under the both. Now in the light of specific provision contained in section 163b the question may be examined. Section 163 and section 163b have been inserted in the statute book w. e. f. 14. 11. 1994 providing structural formula based on second schedule inserted alongwith these sections. It is a new provision based on the principle of no fault liability and is an alternative remedy to provision of section 166 of the act. Section 163a of the Act is also an alternative to provision of section 140 dealing with no fault liability. According to section 163-B one can claim compensation either under section 140 or 163-A, but not under both the sections. The words "he shall file claim under either of sections and not under both the section" specifically indicates the intention of legislation that the legislation provided remedy of filing claim petition under either of section, so before filing of section the claimant has to take a decision whether he would file an application under section 140 or under section 163-A of the Act. The compensation under section 140 is based on the principle of no fault liability and provides fix amount in respect of death or for permanent disablement, while compensation under section 163-A based on structured table given in second schedule. Though both the sections provide compensation on the principle of no fault liability and as such wrongful act negligence or fault of owner or driver need not be pleaded and proved. Clause (1) of section 163a gives overriding effect to the provisions contained in the act or any other law in force or any instrument having the force of law and gives effect to the provisions of the Act. Section 166 provides application for compensation to the person who may claim compensation without any limit. Clause (1) of section 163a gives overriding effect to the provisions contained in the act or any other law in force or any instrument having the force of law and gives effect to the provisions of the Act. Section 166 provides application for compensation to the person who may claim compensation without any limit. The claims tribunal is empowered to assess the compensation according to the loss caused to the claimant because of death or injury occurred in the accident without any limit, while under section 163a of the Act, the amount of compensation is limited and can be claimed in respect of the victim or injury, whose annual income was not more than Rs. 40,000/- p. a. , or has to confine the compensation to the maximum limit specified in the Second schedule, while under section 166 of the Act no such limit is prescribed. ( 10. ) NOW in the light of the aforesaid statutory, provisions, the judgment of this court in Smt. Mayabai Tomar (supra) may be seen. . In Smt. Mayabai Tomar the claimants were widow and minor children of the deceased Ravindra Singh tomar, who had claimed compensation of Rs. 10 lacs because of death of Ravindra singh Tomar in the motor accident occurred on 23. 4. 1997. The Tribunal on appreciation of evidence dismissed the claim petition holding that the deceased himself was responsible for the accident and the accident had not occurred due to negligent driving of the truck. In an appeal against the dismissal of claim petition before this Court oral prayer was made for conversion of the application filed by the claimants before the Claims Tribunal from section 166 to section 163-A of the act. The prayer made by the claimants was not seriously objected by the owner, driver and insurer. The Division Bench considering the aforesaid situation deemed it appropriate to remit the matter to the tribunal with liberty to the claimants to file an application before the Tribunal under section 163a of the Act. However the directions were issued to the Tribunal to consider and decide such application in accordance with law. In Guruanna Vadi (supra) the Full Bench Karnataka High Court considering the reference answered six questions, in which reply of question no. However the directions were issued to the Tribunal to consider and decide such application in accordance with law. In Guruanna Vadi (supra) the Full Bench Karnataka High Court considering the reference answered six questions, in which reply of question no. 6 is relevant in which the Full Bench answered thus :- "a claimant during the pendency of the provision at the original or appellate stage can amend his claim petition under section 166 of the petition under section 163-A provided he satisfied other conditions such as income factor, etc," The Division Bench of Andhra Pradesh High Court in Kore Laxmi (supra)while hearing the matter, considering the prayer of claimant, turned down the objection of insurer that the claimants who had filed application under section 166 of the Act, but the Tribunal applied the second schedule of the Act under section 163a of the Act and awarded compensation. ( 11. ) RECENTLY the Apex Court considered the question in Deepal Girishbhai (supra) held in para 57 of the judgment that the remedy for payment of compensation under section 163a and 166 being final and independent of each other. The statute provided, that the claimant cannot pursue his remedy thereunder simultaneously. One must opt/elect either for proceeding under section 163a or 166 of the Act, but not under both. The Apex Court in para 59, 60 and 61 of the judgment considering the issue held thus :- "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 awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor 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 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. The answer to both the aforementioned questions must be rendered in the negative. 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. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of 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. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example. Sections 140 and 161 in case of hit-and-run motor accident, from the amount of compensation payable under the award on the basis of fault liability under Section 166 of the Act, the same has expressly been provided for and having regard to the fact that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under Section 163-A of the Act, it must be held that the scheme of the provisions under Sections 163-A and 166 are distinct and separate in nature. The Apex Court considered the intention of Parliament in enactment of the aforesaid provisions held that the scheme of provisions under sections 163a and 166 are distinct and separate in nature. The Apex Court clarified the position in para 62, 63 and 67 of the judgment which may be referred thus :- "a claimant during the pendency of the provision at the original or appellate stage can amend his claim petition under section 166 of the petition under section 163-A provided he satisfied other conditions such as income factor, etc," The Division Bench of Andhra Pradesh High Court in Kore Laxmi (supra)while hearing the matter, considering the prayer of claimant, turned down the objection of insurer that the claimants who had filed application under section 166 of the Act, but the Tribunal applied the second schedule of the Act under section 163a of the Act and awarded compensation. ( 11. ( 11. ) RECENTLY the Apex Court considered the question in Deepal Girishbhai (supra) held in para 57 of the judgment that the remedy for payment of compensation under section 163a and 166 being final and independent of each other. The statute provided, that the claimant cannot pursue his remedy thereunder simultaneously. One must opt/elect either for proceeding under section 163a or 166 of the Act, but not under both. The Apex Court in para 59, 60 and 61 of the judgment considering the issue held thus :- "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 awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor 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 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. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of 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. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example. Sections 140 and 161 in case of hit-and-run motor accident, from the amount of compensation payable under the award on the basis of fault liability under Section 166 of the Act, the same has expressly been provided for and having regard to the fact that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under Section 163-A of the Act, it must be held that the scheme of the provisions under Sections 163-A and 166 are distinct and separate in nature. The Apex Court considered the intention of Parliament in enactment of the aforesaid provisions held that the scheme of provisions under sections 163a and 166 are distinct and separate in nature. The Apex Court clarified the position in para 62, 63 and 67 of the judgment which may be referred thus :- "the claimants in appeal arising out of dismissal of claim petition on merits tinder section 166 of the Act cannot be permitted to convert the claim petition under section 163a of the Act" Now the Misc. Appeal be placed before the Division Bench for consideration of the case of appellants/claimants on merits after hearing the parties of the appeal. Order accordingly.