Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 271 (PNJ)

NEW INDIA ASSURANCE CO. LTD. v. RUPINDER KAUR

2014-02-04

ANITA CHAUDHRY

body2014
JUDGMENT : Anita Chaudhry, J. 1. This appeal has been preferred by the insurance company assailing the award dated 29.7.2010 passed by Motor Accidents Claims Tribunal, Patiala, who allowed the claim application and awarded a sum of Rs. 3,41,000 in favour of the claimants and against the respondents. The grievance of the appellant is that the claim was not maintainable as the deceased was drawing a salary of Rs. 20,755 and he had restricted the claim on the basis of income of Rs. 40,000 per year to bring his claim within the provision of Second Schedule. The second grouse raised was that the legal representatives had lodged a claim of compensation for the death of a person, who had borrowed the vehicle from the owner and the claim should have been dismissed. 2. In order to dispose of the issues raised in this appeal, it is necessary to refer to the facts. Kesar Singh along with his brother Malkiat Singh was going on a motor cycle. Kesar Singh was driving the vehicle. They had reached a turning point near village Malomajra at about 7/8 p.m. when the motor cycle met with an accident with another vehicle. Kesar Singh received multiple grievous injuries whereas Malkiat Singh fell on the side and did not suffer any injury. Kesar Singh remained admitted in the hospital from 8.5.2009 to 14.5.2009. He was shifted to Amar Hospital, Patiala where he remained up to 24.5.2009. He was then shifted to DMC, Ludhiana and died on 31.5.2009. 3. Kesar Singh was 52 years old and was driver with P.R.T.C., Patiala and was drawing a salary of Rs. 19,034.80 per month. The claimants had filed an application under section 163-A and claimed compensation of Rs. 15,00,000. It was also pleaded that though the income of Kesar Singh was much higher but for the purpose of filing claim petition under section 163-A, the income of the deceased may be considered as Rs. 40,000 per year. 4. Respondent No. 1 took the plea that the accident had taken place with some unknown vehicle and not the motor cycle which he was driving. The insurance company denied the accident and pleaded that it was a case of manipulation and the claim under section 163-A was not maintainable. It was pleaded that there was delay in lodging the F.I.R. 5. The insurance company denied the accident and pleaded that it was a case of manipulation and the claim under section 163-A was not maintainable. It was pleaded that there was delay in lodging the F.I.R. 5. From the pleadings, following issues were framed : (1) Whether deceased Kesar Singh died in a motor accident caused due to rash and negligent driving of offending vehicle (motor cycle) No. PB 13-J 2077 by its driver, respondent No. 1, in the area of village Malomajra? OPA (2) Whether the claimants are entitled to compensation? If so, to what amount and from whom? OPA (2-A) Whether Kesar Singh, deceased, was not holding a valid driving licence at the time of accident? If so, its effect? OPR-2 (3) Relief. 6. Though the issue regarding negligence had been framed but while recording the finding on issue No. 1, the Tribunal came to the conclusion that the death had occurred while the vehicle was in use and the motor cycle had been hit from behind by an unknown vehicle. The issues were answered in favour of the claimants. On issue No. 2, the Tribunal took note of the fact that Kesar Singh was drawing salary of Rs. 19,034.80 per month, which had been proved from the salary certificate but observed that as the claimants had restricted their claim to Rs. 40,000 per year, therefore, the income was taken as Rs. 40,000 per year and after deducting 1/3rd on account of personal expenses. After applying the multiplier of 11, the compensation was calculated at Rs. 2,86,000. Rs. 10,000 was added under the head of funeral expenses. The claimants were also allowed a sum of Rs. 45,000 spent on the treatment. 7. The contention raised on behalf of the appellant is twofold. Firstly, that the claim petition under section 163-A was not maintainable as the deceased was having an income of over Rs. 20,000 per month and the claim could not have been filed under section 163-A. The next argument was that the owner and the insurer of the vehicle, which had caused the accident, were not impleaded as party and claim against the owner and the insurer of the motor cycle could not be allowed when there is a specific plea that the vehicle had dashed against another vehicle. Reliance was placed upon an unreported judgment in United India Insurance Co. Reliance was placed upon an unreported judgment in United India Insurance Co. Ltd. v. Gurpreet Kaur, F.A.O. No. 32 of 2010; decided on 9.7.2010 (P & H). 8. The contention, on the other hand, was that since the vehicle was insured and the accident even if on account of negligence of the victim is proved even then the insurance company can be made liable and the insurance company cannot avoid its liability under section 163-A. It was contended that the insured had paid the premium for the driver and any person holding an effective driving licence including the insured were persons who were entitled to drive and there was a contractual agreement and the insurance company was liable to pay the compensation. It was urged that the claim could be restricted to bring it within the amount provided in the Second Schedule to the Motor Vehicles Act, 1988. Reliance was placed upon United India Insurance Co. Ltd. (The) Vs. Smt. Rekha and Others, (2007) ACJ 2614 and National Insurance Co. Ltd. v. Bharat Singh, F.A.O. No. 1631 of 2009; decided on 15.4.2009 (P & H). 9. The first issue is whether section 163-A would cover the cases wherein negligence of the victim was the cause of the accident. The Supreme Court in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , observed thus : "(66) We may notice that section 167 of the Act provides that where the death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, 'under the provision of the Act', 'provisions of this Act', 'under any other provisions of this Act' or 'any other law or otherwise'. In section 163-A, the expression 'notwithstanding anything contained in this Act or in any other law for the time being in force' has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to section 166 and the concept of social justice has been duly taken care of." 10. In the face of the position of law the Apex Court in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , held that there can be no escape from the conclusion that it is permissible even for a driver, whose own wrongful act, neglect or default might have formed the cause of the accident resulting into his own injuries, to maintain an application for compensation under section 163-A. 11. Let me now deal with the issue, namely, whether a person whose annual income is more than Rs. 40,000 is entitled to make an application under section 163-A, claiming compensation? 12. It is of paramount importance to note that in case of The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V. Kodala and Others etc. etc., (2001) 5 SCC 175 , a two-Judge Bench of Supreme Court held that the benefit of section 163-A can be availed of by a claimant by restricting his income at a slab of Rs. 40,000 which is the highest slab in the Second Schedule appended to section 163-A. In other words, in Kodala (supra), the view of the Apex Court was that even a person, who earns more than Rs. 40,000 annually, can take the benefit of section 163-A by restricting his income to the slab of Rs. 40,000 and thereby dispense with the onus to prove wrongful act, neglect or default on the part of the driver or the owner of the vehicle concerned. This view of the Apex Court can be discerned from the observations which run thus: "(16) ...However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs. 40,000 which is the highest slab in the Second Schedule which indicates that the legislature wanted to give benefit of no fault liability to a certain limit." 13. Disagreeing, however, with the views expressed in The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V. Kodala and Others etc. etc., (2001) 5 SCC 175 , that under section 163-A, even a person whose annual earnings is more than Rs. Disagreeing, however, with the views expressed in The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V. Kodala and Others etc. etc., (2001) 5 SCC 175 , that under section 163-A, even a person whose annual earnings is more than Rs. 40,000 can maintain a claim for compensation by restricting his income to Rs. 40,000 annually, a three-Judge Bench in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , has held : "(67) ... However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of section 163-A, the annual income of Rs. 40,000 shall be treated as a cap. In our opinion, 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 the other claims are required to be determined in terms of Chapter XII of Motor Vehicles Act." 14. From what has been observed and held above in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , it is abundantly clear that section 163-A can be resorted to by only that person whose annual income is not above Rs. 40,000. 15. In the backdrop of the eligibility criterion, which the Apex Court had laid down in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , when I revert to the facts of the present case, what becomes glaringly noticeable is that there is no dispute that the victim's monthly income was Rs. 20,000 and hence, his annual income was more than Rs. 40,000. In the face of this undisputed fact one has no option but to hold that the present petition made under section 163-A could not have been filed. In view of the finding above, it is not necessary to go into the next issue. The appeal filed by the appellant is allowed.