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Rajasthan High Court · body

2022 DIGILAW 1545 (RAJ)

Ganesh Bairwa v. Ramphool Bairwa

2022-05-12

ANOOP KUMAR DHAND

body2022
JUDGMENT 1. Both the appeals arise out of a common judgment and award, hence, same are being decided together. 2. These appeals have been submitted against the judgment and award dated 16.02.2018 passed by the Court of learned Special Judge of Printing and Stationery Embezzlement Cases- cum- Motor Accident Claims Tribunal, Jaipur District-Jaipur in claim case Nos. 461/2017 (Old 356/2016) New Mact Main 71/2018 & 460/2017 (Old 355/2016) New Mact Main 70/2018 by which the claim petitions filed under Section 163A of the Motor Vehicles Act, 1988 by the injured-claimnats- Ganesh Bairwa S/o Shri Ramphool Bairwa & Girraj S/o Shri Govind @ Jayram were partly allowed. 3. The issues in these appeals are 'Whether the amended Section 164 can be taken into account in the pending appeals against the claim petition filed under Section 163A of the Motor Vehicles Act, 1988 for deciding the quantum of compensation and whether the appeal is a continuous part of the claim proceedings?' Counsel for the claimants-appellants submitted that the claim petitions were submitted by the claimants-appellants under Section 163(A) of the Motor Vehicles Act. 4. Counsel for the claimants-appellants further submitted that the injured-claimants submitted various medical bills exceeding the amount of Rs. 15,000/- but the Tribunal has granted a lump- sum amount of Rs. 15,000/- only, in view of the mandate of Section 163A of the Act of 1988, which needs suitable enhancement by this Court in view of the amended provisions contained under Section 164 of the Act of 1988. 5. Counsel for the claimants-appellants further submitted that both the injured-claimants have sustained more than 18% permanent disability and their earning capacity have been seriously affected, so the amount awarded by the Tribunal is quite meager, which needs suitable enhancement by this Court. 6. Counsel for the respondent-Insurance Company submitted that as per the provisions contained under Section 163(A) of the Motor Vehicles Act, the maximum amount of 15,000/- was permissible for medical bills, so the Tribunal has not committed any error in awarding the amount of Rs. 15,000/- towards medical bills. Though the counsel for the respondent opposed the arguments raised by the counsel for the claimants-appellants, but he was fair enough to submit that these appeals may be decided as per the amended provisions of Section 164 of Motor Vehicles Act, 2019. 7. Heard Counsel for the parties and perused the record. 8. 15,000/- towards medical bills. Though the counsel for the respondent opposed the arguments raised by the counsel for the claimants-appellants, but he was fair enough to submit that these appeals may be decided as per the amended provisions of Section 164 of Motor Vehicles Act, 2019. 7. Heard Counsel for the parties and perused the record. 8. It is not in dispute that under the Provisions of Section 163(A) of the Act of 1988, maximum amount of Rs. 15,000 could be awarded for medical bills but after the amendment in the various provisions of the Motor Vehicles Act, the legislature has come up with a new provisions under Section 164 of the Act of 2019. 9. Section 163A of the Act was originally inserted to provide for a pre-determined formula for payment of compensation to victims of motor vehicular accident on the basis of age/income of the deceased or the person suffering permanent disablement. It contains a non obstante clause and the owner of the motor vehicle involved in the accident or the authorized insured is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, in terms of the Second Schedule, to the legal representatives of the victim or the victim. In a claim application filed under Section 163A of the Act, 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 vehicle concerned or of any other person. The comprehensive scheme has been formulated for the purpose of grant of adequate compensation without the burden to prove that the accident occurred due to negligence, etc. on the part of the driver of the motor vehicle or any other fault arising out of the motor vehicle involved in the accident. On the other hand, if the claim application is filed under Section 166 of the Act the burden of proof remains on the claimant to prove that the accident had occurred due to an act of rash and negligent driving of the motor vehicle. In case of a claim application preferred under Section 166 of the Act, the Tribunal is required to assess just compensation. In case of a claim application preferred under Section 166 of the Act, the Tribunal is required to assess just compensation. Thus, the victim of an accident has or his dependents have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. 10. It is found that after delivery of the impugned judgment and award dated 16.02.2018 of the Tribunal and during the pendency of the appeal, the Central Government has amended the Second Schedule in exercise of the power conferred by sub- section (3) of Section 163A of the Act, which has replaced the earlier Second Schedule to the Act. The amended Second Schedule has come into effect from 22.05.2018. The amended Second Schedule has provided for a lumpsum amount of Rs. 5,00,000/- (Rupees five lakhs) as compensation in case of death. The amended Second Schedule has not provided for any other formula for calculation or any slab of income for claiming compensation under Section 163A of the Act. 11. A question that naturally arises is whether in the case in hand, the compensation is required to be assessed in terms of the Second Schedule that existed on the date of filing of the claim application or the amended Second Schedule will become applicable. The question has been decided by the Gauhati High Court in National Insurance Company Limited vs. Bijaya Bhuyan and others, reported in (2018) 5 GLT 72. Taking into view the basic object of introducing Section 163A and also amendment of the Second Schedule which is held to be a procedural matter and the social welfare object of the legislation itself as well as the context in which the amendment has occurred, the Court has observed that the amended Second Schedule has to be taken into account in the pending proceeding under Section 163A for deciding the quantum of compensation. Since the appeal is a continuation of the proceeding, the Court has held that the amended Second Schedule has to be taken into account in case of a pending appeal also in deciding the claim under Section 163A of the Act. 12. It has come to the notice of the Court that Chapter XI containing Sections 145 to 163, 163A, 163B and 164 of the Motor Vehicles Act, 1988 has, in the meantime, been substituted by the Motor Vehicles Act (Amendment) Act, 2019 (32 of 2019) w.e.f. 01.09.2019. 12. It has come to the notice of the Court that Chapter XI containing Sections 145 to 163, 163A, 163B and 164 of the Motor Vehicles Act, 1988 has, in the meantime, been substituted by the Motor Vehicles Act (Amendment) Act, 2019 (32 of 2019) w.e.f. 01.09.2019. Section 164 has substituted Section 163A which was inserted by Act 54 of 1994 in the Motor Vehicles Act. The amended Second Schedule which had come into effect from 22.05.2018, has also been omitted by Act 32 of 2019. At present, Section 164 of the Motor Vehicles Act, 1988, as amended, reads as under: 164. Payment of compensation in case of death of grevious hurt, etc. (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 authorized insurer shall be liable to pay in the case of death or grievous hurt due to any accident arising out of the use of motor vehicle, a compensation, of a sum of five lakh rupees in case of death or of tow and a half lakh rupees in case of grievous hurt to the legal heirs or the victim,as the case may be. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or grievous hurt 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 of the vehicle or of the vehicle concerned or of any other person. (3) Where, in respect of death or grievous hurt due to an accident arising out of the use of motor vehicle, compensation has been paid under any other law for the time being in force, such amount of compensation shall be reduced from the amount of compensation payable under this section. 13. At the time, when the accident took place, the second schedule of the Act of 1988, as it stood then, applied to Section 163A of the Act. Subsequently, the Second Schedule was amended w.e.f 22.05.2018 by which flat compensation of Rs. 5 lacs was fixed in case of death and Rs. 2.5 lacs in case of grievous hurt to the legal heirs or the victim, as the case may be. Subsequently, the Second Schedule was amended w.e.f 22.05.2018 by which flat compensation of Rs. 5 lacs was fixed in case of death and Rs. 2.5 lacs in case of grievous hurt to the legal heirs or the victim, as the case may be. But by the 2019 amendment of the Act, which has become effective w.e.f. 01.09.2019, Section 163A and the second Schedule of the Act have been renewed. Section 164 of the Act of 1988 has come into force w.e.f 01.09.2019 and Section 163A and the Second Schedule, have been removed. 14. The only other avenue open to award higher amount on claim under Section 163A in respect of fatal accident, would be to seek application of the 2018 amendment to the Second Schedule of the Act or the equivalent 2019 amendment to the Act, which provides for a flat compensation of Rs. 5 lacs in case of death and Rs. 2.5 lacs in case of grievous hurt. As the Act of 1988, in the matter of Motor Vehicles Act, which has to be regarded as a beneficial legislation, it stands to reason that the amendment of 2018 to the Second Schedule and the subsequent 2019 amendment to the Act would have to be given effect in this claim where accord and satisfaction might not have been achieved after adjudication. 15. The Punjab and Haryana High Court in the case of Manpreet Kaur Vs. Sukhdev Singh & Anr., in FAO No.390 of 2019 (O & M) decided on 16.07.2021 has held that the appeal is continuation of the claim proceedings and held in para 18 to 26 and 28 as under:- ' 18. A comparative perusal of the above shows the intent and endeavor of the legislature was and continues to be to liberalize, simplify and shorten the process and procedure for speedy payment of compensation in the cases, in which it is payable without any obligation on the part of claimant 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 of any other person. In such cases, to avoid unnecessary delay and/or needless evidence, the quantum of compensation is also pre-determined. 19. In such cases, to avoid unnecessary delay and/or needless evidence, the quantum of compensation is also pre-determined. 19. Now adverting to the award impugned herein, whereby a compensation of Rs.2,00,000/- has been awarded for the death of the appellant's son while Rs.5,000/- for the funeral expenditure, thus a total Rs.2,05,000/-. 20. The accident resulting in death of the victim took place on 24.06.2017. The claim petition was registered on 24.01.2018. Pre-determined compensation under Section 163-A was enhanced to Rs.5,00,000/- w.e.f. 22.05.2018, whereas the award was rendered by the Tribunal on 05.10.2018. Instant appeal, no doubt, is continuation of the same claim proceedings. 21. In Union of India versus Rina Devi 2018 (3) RCR (Civil) 40, Apex Court noted the issue of apparent conflict in earlier two judgments viz Rathi Menon versus Union of India (2001) 3 SCC 714 and Kalandi Charan Sahoo versus General Manager, Civil Appeal No.5608 of 2017 decided on 25.4.2017, as to the relevant date for applying the rate of compensation when different rate is applicable at the time of filing of claim and on the date of the order. It has been held by Supreme Court as under: '15.4 Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon (supra) and Kalandi Charan Sahoo (supra) stands explained accordingly. The 4- Judge Bench judgment in Pratap Narain Singh Deo (supra) holds the fiel on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.' (emphasis supplied) 22. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.' (emphasis supplied) 22. In the case in hand, the Tribunal vide its order dated 05.10.2018, awarded compensation of Rs.2,00,000/- for death, obviously as per the unamended Second schedule. Notwithstanding, that during the pendency of the claim petition before the Tribunal, vide notification dated 22.05.2018 the Second Schedule to the Act had already been amended, and by then the prescribed rate of Rs.5,00,000/- had become applicable. 23. To my mind, the ratio of Union of India v. Rina Devi (supra) was/is squarely applicable to the instant case. Here the compensation of Rs.5,00,000/- as provided/prescribed on the date of award of the Tribunal is higher than amount of Rs.2,05,000/- with interest awarded by the Tribunal on the basis of rate applicable on the date of death. As such, the higher of the two amounts has to be given to give effect to the mandate of beneficial legislation. To that extent, the learned Tribunal clearly fell in legal error by not granting the compensation of Rs.5,00,000/- as duly notified by the Central Government. 24. However, in a subsequent judgment rendered by Supreme Court in Ramkhiladi and another versus The United India Insurance Company and another in Civil Appeal No. 9393/2019 decided on 07.01.2020, as relied upon by the learned counsel for respondent No.2, it was held as under: '5.8 However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018 i.e. much prior to the amendment in the 2nd Schedule. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018 i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule .' It would be seen that in the peculiar facts of Ramkhiladi's case, claimants were disentitled to the benefit of the amendment to the 2nd Schedule. While doing so, the specific question of law settled in and the ratio rendered in Union of India v. Rina Devi, supra were not gone into. Being so, view taken in the peculiar facts of Ramkhladi and another versus The United India Insurance Company, supra does help respondent No.2. Not only Ramkhiladi is distinguishable and inapplicable in the facts of the instant case, but even otherwise, the opinion expressed therein does not out-weigh the ratio rendered in Union of India v. Rina Devi. 25. In the parting, learned counsel argues in the alternative, that in a recent Apex Court judgment rendered in Rajendra Singh and others versus National Insurance Company Limited and others reported in 2020 (3) RCR (Civil) 26, wherein compensation was claimed under Section 166 of the Act on the death of a 12 year old minor child, a compensation of only Rs.2,95,000/- was awarded. He also relies on another Apex Court judgment rendered in Reshma Kumari and others versus Madan Mohan and another reported in 2013 (9) SCC 65 , wherein it was held that notional income of child should be taken as Rs.15,000/- per month. He contended that, accordingly, by applying multiplier of 15 and (15,000 x 15), a compensation of Rs.2,25,000/- for death would meet ends of justice in the instant case and by adding Rs.5,000/- as funeral expenditure, a total compensation of Rs.2,30,000/- would suffice by enhancement of Rs.25,000/-. 26. The aforesaid arguments of learned counsel for respondent No.2-Insurance Company are being noted only for the sake of rejection. Neither of these judgments, cited by him, is applicable in the instant case. The claims therein were under Section 166 of the Act of 1988. 26. The aforesaid arguments of learned counsel for respondent No.2-Insurance Company are being noted only for the sake of rejection. Neither of these judgments, cited by him, is applicable in the instant case. The claims therein were under Section 166 of the Act of 1988. I have held that in present case, the compensation is payable under Section 163-A of the Act read with the amended Second Schedule as applicable on the date of award and compensation is strictly on the no fault principle. It is, therefore, not necessary for me to go into the issue of multiplier and/or the notional income and/or any other parameters applicable to the claims under Section 166 of the Act of 1988. 28. As a result of above discussion, the impugned award dated 05.10.2018 passed by the learned Tribunal is modified and the compensation awarded is enhanced to Rs.5,05,000/- with interest at the rate of 7% per annum from the date of institution of claim petition. The enhanced compensation, after adjusting the payment, if any, already made, be disbursed to the appellant/claimant within two months from the receipt of certified copy of this order, otherwise the same shall bear interest at the rate of 9% per annum from the date of this order till payment.' 16. Even the Gauhati High Court in the case of National Insurance Company Ltd. Vs. Suren Ch. Ray & Ors., in MACApp. 140/2018, decided on 25.06.2020 has held that the appeal is a continuation of proceedings. The Court has held that the amended Second Schedule has to be taken into account in case of a pending appeal against the claim filed under Section 163A of the Act and it has been held in Para 21 as under:- '21. Despite substitution of Section 163A with the present Section 164 and the omission of the Second Schedule, the interpretation given by this Court in National Insurance Company Limited V. Bijaya Bhuyan reported in (2018) 5 GLT 72 that the provision contained therein is a procedural one is found applicable to the case in hand. It may be iterated that the claim application was filed under Section 163A of the Act and the compensation awarded by the Tribunal was not determined in terms of the Second Schedule. It may be iterated that the claim application was filed under Section 163A of the Act and the compensation awarded by the Tribunal was not determined in terms of the Second Schedule. Thus, in the light the above discussion and in the fact situation obtaining in the present case, the amount of compensation needs to be modified in terms of present Section 164 to the amended act which has provided for an amount of compensation of Rs.5,00,000/- (Rupees five lakhs) in case of death. Under a policy of insurance for motor vehicle, it is the owner-insured who is indemnified by the insurer as per the terms and conditions laid down in the policy. The liability under the then Section 163A or under the present Section 164 to the Act is on the owner-insured of the motor vehicle who is ordinarily indemnified by the insurer as per the contract of insurance. Thus, in the case in hand, the claimant No.1 who was also the owner-insured, cannot be a recipient of compensation. Consequently, the direction contained in impugned judgment and award dated 31.03.2016 regarding payment of compensation to the claimants is required to be modified. Thus, in the above facts and circumstance obtaining in the case in hand, the appeal is allowed in part and the amount of compensation is accordingly modified by directing the insurer to pay an amount of Rs.5,00,000/- (Rupees five lakhs) to the claimant No.2 and the claimant no.3 along with interest @6% per annum from the date of filing of the claim application i.e. 04.01.2014 till the date of deposit.' 17. The identical controversy came before the Division Bench of Calcutta High Court in the case of Urmila Halder Vs. New India Assurance Co. Ltd. & Ors. reported in 2018 SCC Online Calcutta 11751, and the same was dealt in Para 8, 12, 13, 14 and the same was decided in Para 125 which reads as under:- ' 8. Mr. Mondal was also heard to advance a submission based on a development of recent origin. He brought to our notice a notification dated May 22, 2018 issued by the Central Government in exercise of power conferred by sub-section (3) of Section 163-A of the 1988 Act (hereafter 'the said notification' for short), and prayed for application thereof to determine compensation payable to the appellant. 12. He brought to our notice a notification dated May 22, 2018 issued by the Central Government in exercise of power conferred by sub-section (3) of Section 163-A of the 1988 Act (hereafter 'the said notification' for short), and prayed for application thereof to determine compensation payable to the appellant. 12. It is, thus, evident from the new schedule that Rs.5,00,000.00 is payable under sub-section (1) of Section 163-A of the 1988 Act for a claim arising out of death. Should the appellant succeed in her contention that the new schedule ought to apply, she ought to be entitled to it. This has been the thrust of Mr. Mondal's contention. 13. Upon noticing the said notification and considering that numerous claim applications under Section 163-A of the 1988 Act have been pending before the various motor accident claims tribunals of this State and that this Court is also in seisin of a good number of appeals under Section 173 thereof, wherein awards under Section 163-A are under challenge, we thought of rendering a decision upon hearing all the learned advocates who generally appear before us to argue appeals under Section 173 of the 1988 Act. This was intended to avoid repetition of arguments every time a quantum appeal challenging an award under Section 163-A comes up for consideration as well as to facilitate speedy disposal of all the pending claim applications and the appeals in the light of our findings and observations. 14. With that in view, we invited such learned advocates to address us on the following issue : Whether, after the amendment brought about by the said notification, the new schedule would be applicable to pending claim applications under Section 163-A before the motor accident claim tribunals as well as the appeals arising out of awards delivered thereunder prior to May 22, 2018? 125. Therefore, the conclusion seems to be inescapable that while deciding pending claim applications/appeals post May 22, 2018, the new schedule ought to be applied by the tribunals/this Court for determining compensation payable to the legal heirs of an accident victim or to the victim himself regardless of whether the new schedule is beneficial to them or not. The issue framed in paragraph 12 is, accordingly, answered.' 18. Hence, in view of judgments of Manpreet Kaur (supra) and Suren Ch. The issue framed in paragraph 12 is, accordingly, answered.' 18. Hence, in view of judgments of Manpreet Kaur (supra) and Suren Ch. Ray (supra), Urmila Halder (Supra) this Court is of the view that these appeals are continuation of the proceedings and the amended Section 164 has to be taken into consideration for deciding the same. 19. Counsel for the respondent-Insurance Company is not in a position to dispute the amended provisions of the Motor Vehicles Act of 2019 and the controversy has been resolved in the cases of Manpreet Kaur (supra), Urmila Halder (supra) and Suren Ch. Ray (supra). In order to settle the controversy in the light of the above judgments, this Court deems it just and proper to award a lump- sum amount of Rs. 2,50,000/- (including the amount already awarded by the Tribunal) to the injured claimants-appellants- Ganesh Bairwa S/o Shri Ramphool Bairwa & Girraj S/o Shri Govind @ Jayram each under all the heads including medical bills respectively. 20. In view of the discussion made above, both the appeals are partly allowed. 21. All pending application(s), if any, also stand(s) disposed of. 22. Thus, the amount of Rs.1,41,000/- (2,50,000-1,09,000 = 1,41,000) in claim case No. 461/2017 (Old 356/2016) New Mact Main 71/2018 & Rs. 1,43,000/- in claim case No. 460/2017 (Old 355/2016) New Mact Main 70/2018 are enhanced. 23. The respondent-Insurance Company is directed to pay the enhanced amount of Rs. 1,41,000/- & 1,43,000/- to the injured claimants-respondents respectively in addition to the amount already awarded by the Tribunal vide judgment dated 16.02.2018 within a period of two months from date the receipt of the certified copy of this Judgment. 24. Copy of this judgment be placed in the connected appeal.