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2021 DIGILAW 189 (JK)

National Insurance Co. Ltd. v. Mehtaba

2021-04-23

VINOD CHATTERJI KOUL

body2021
JUDGMENT : VINOD CHATTERJI KOUL, J. 1. Review of judgment dated 1st February 2021, passed by this Court in MA No. 09/2018, titled National Insurance Company Limited vs. Mst. Mehtaba and Another, dismissing the Appeal, is sought for in this petition. 2. Heard and considered. 3. Learned senior counsel appearing for Review Petitioner-Insurance Company has stated that an Appeal, being MA No. 09/2018, was filed by review petitioner against Award dated 9th November 2017, passed by Motor Accident Claims Tribunal, Anantnag. This Court while passing judgment dated 1st February 2021 in abovementioned Appeal has not considered that the claim petition had been filed before the Tribunal under Section 163A of the Motor Vehicles Act, 1988 (for short “the Act”) and, therefore, income of deceased was rightly taken as Rs. 40,000/- per annum on the basis of structured formula without any reference to fault liability. According to learned senior counsel, income of deceased is to be taken as Rs. 40,000/- drawn on the basis of structured formula in petition filed under Section 163A. 4. The submission qua computation of income by the Tribunal having been rightly taken as Rs. 40,000/- has substance, albeit in its Appeal review petitioner-Insurance Company had taken a stand that the Tribunal had awarded excessive, arbitrary and unjust compensation. 5. Section 163A of the Act deals with special provisions as to compensation on structured formula basis. The said provision was inserted vide Section 51 of the Motor Vehicles (Amendment) Act, 1994, with effect from 14.11.1994. Sub-Section (1) of Section 163A states that notwithstanding anything contained in the Act or in any law for the time being in force, or instrument having the force of law, owner of motor vehicle or 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 Second Schedule, to the legal heirs of victim, as the case may be. ‘Permanent disability’ in terms of Explanation to Sub-Section (1) of Section 163A for the purposes of sub-section (1), shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923. ‘Permanent disability’ in terms of Explanation to Sub-Section (1) of Section 163A for the purposes of sub-section (1), shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923. Sub-Section (2) of Section 163A provides that in any claim for compensation under sub-section (1), claimant shall not be required to plead or establish that death or permanent disablement in respect whereof claim has been made was due to any wrongful act or neglect or default of the owner of vehicle or vehicles concerned or of any other person. Sub-Section (3) of Section 163A envisions that 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. 6. Chapter X of the Motor Vehicles Act deals with liability to pay compensation in certain cases on the principle of no fault. As per sub-section (1) of Section 140, where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section. As per sub-section (3) of Section 140, 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. 7. Chapter XI of the Motor Vehicles Act deals with insurance of motor vehicles against third party risks. Rule 147 of the Act deals with requirements of policies and limits of liability. 7. Chapter XI of the Motor Vehicles Act deals with insurance of motor vehicles against third party risks. Rule 147 of the Act deals with requirements of policies and limits of liability. As per sub-section (1) of Section 147, in order to comply with the requirements of Chapter XI, a policy of insurance must be a policy which - (a) is issued by a person who is an authorized insurer and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2): (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. 8. In Deepal Girishbhai Soni vs. United India Insurance Company Ltd. (2004) 5 SCC 385 , a three-Judge Bench of the Supreme Court held that in Section 163A of the Act, 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 the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A 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. 9. Section 163A 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. 9. The Supreme Court in Ningamma vs. United India Insurance Company Ltd. (2009) 13 SCC 710 , after referring to paragraph 42 of the Three-Judge Bench decision in the case of Deepal Girishbhai Soni (supra) held that the Parliament by introducing Section 163A in the Act provided for payment of compensation on structured formula basis by mandating the owner of a motor vehicle or the authorised insurer would be liable to pay compensation, as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be, in a claim made under sub-section (1) of Section 163 A of the Act. 10. Taking into account submissions made by learned senior counsel for review petitioner-Insurance Company and above discoursed well-settled legal position on the subject, the instant review petition deserves to be allowed and judgment dated 1st February 2021 needs to be reviewed. 11. For the reasons discussed above, instant review petition is disposed of and judgment dated 1st February 2021, passed by this Court in MA No. 09/2018, titled National Insurance Company Limited vs. Mst. Mehtaba and Another, is reviewed and modified as regards compensation of Rs. 9,26,800/- along with interest @ 6% per annum, granted by this Court. And, accordingly, the compensation in the amount of Rs. 4,56,700/- along with interest, given by the Tribunal vide Award dated 9th November 2017 in claim petition, being File No. 126/Claim titled Mst. Mehbaba vs. Mohammad Afzal Sheikh and Another, need not be interfered with and is, accordingly, upheld. 12. Review petitioner-Insurance Company shall pay Rs. 4,56,700/- along with interest @ 6% per annum from the date of claim petition till its final realization. Amount, if any, received by claimant/respondent no. 1 shall be deducted from the amount as awarded by the Tribunal. 13. Disposed of in terms of above. 14. Copy of this judgment be also sent to the Tribunal.