J.B. Koshy, J.
1. Husband of the first respondent sustained fatal injuries in a motor accident. While the deceased was riding a Scooter owned by the 6th respondent on 11.12.1999, accidentally the Scooter dashed at a stone and he fell down from the vehicle and sustained serious head injuries which resulted in his death. His dependents filed an application for compensation under Section 163-A of the Motor Vehicles Act. The Tribunal awarded compensation under Section 163-A. The insurance of the vehicle was admitted. There was no pleading in the written statement that rider of the vehicle was not covered under the policy. Since there was valid insurance policy of the Scooter, the appellant insurance company was directed to deposit the amount. Contention of the insurance company is that no other vehicle or person was involved in the accident. Since there is no other person involved in the accident, Section 163-A is not applicable. There is no finding or contention that the rider of the Scooter was negligent. Accidentally the motor cycle dashed against a stone and he fell down. Section 163-A is based on strict liability principle. The need for Section 163-A was explained by the Hon'ble Supreme Court in Oriental Insurance Co. v. Hansrajbhai : [2001]2SCR999 . The Supreme Court in the above case held that if the Insurance Company is permitted to prove that insured is not at fault, though his vehicle is involved then the whole purpose of Legislature in introducing Section 163-A will be frustrated. It was further held that if the insurance company is permitted to prove the negligence even of the victim or no negligence of the insured, then the purpose for which the Legislature introduced Section 163-A would be frustrated. Sections 140 and 163-A are based on strict ilability principle formulated in Rylands v. Fletcher 1861-73 All ER (Reprint) 1. A joint reading of Sections would show that for death or permanent disablement suffered due to accident arising out of the use of motor vehicles, the claimants need not prove the wrongful act or neglect or default of anyone. So, third party need not be involved in this case. The Apex Court in Kaushnuma Begum and Ors. v. New India Assurance Co. Ltd. : [2001]1SCR8 awarded compensation where the accident occurred due to the bursting of tyres. A Full Bench of this court has considered the matter in detail in National Insurance Co. Ltd. v. Malathi C. Salien : 2003(3)KLT460 . Various decisions of the courts as well as scope of Section 163-A were mentioned therein and held that merely because the victim was the rider of the vehicle and no other vehicle was involved in the accident, compensation cannot be denied. Section 163-A reads as follows:
163-A. 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 the use of motor vehicle, compensation, as indicated in the Second Schedule, the legal heirs or the victim, as the case may be.
Explanation. - For the purposes of this sub-section, 'permanent disability' shall have he same meaning and extent as in the Workman's 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.
2. A reading of Section 163-A shows that liability is strict and compensation is payable. Learned Counsel cited the decision of the Karnataka High Court in Appaji v. M. Krishna . In that case, it was also proved that the accident occurred due to the negligence of the driver himself. In this case, insured is not the victim. Owner of the scooter was another person. Whether insured can claim compensation from the insurance company for his own negligence is a different question. Apart from that, here there is no proof that the accident occurred due to the contributory negligence of the claimant. It is a pure accident. In any event, question of negligence is not an issue to be considered while disposing of an application under Section 163-A. However, if claimants want full compensation, they have to ask for compensation under Section 166 and if application is filed under Section 166, negligence of the driver of the offending vehicle has to be proved. That is dispensed with here in Section 163-A. However, claimants will be entitled to compensation only as per the structured formula. In this connection, we give below the differences between Sections 166 and 163-A on that basis of various decisions of this court:
---------------------------------------------------------------------------------------Table 1: Difference Between Section 163-A and Section 166---------------------------------------------------------------------------------------Sl.No. Section 163-A Section 166---------------------------------------------------------------------------------------1. The victims are not required to prove The victims are compulsorily required tonegligence under this section. prove negligence.---------------------------------------------------------------------------------------2. Claim under this Section is based on Claim under this Section is based on'no feult liability'. 'tortious liability'.---------------------------------------------------------------------------------------3. Only evidence regarding the factum Evidence regarding negligence, variousof accident and vehicle involved in other aspects regarding claim forthe accident, age of the motor compensation etc. are to be established accident victim, income of the by the claimant by a long drawn out trial.claimant etc. need be proved. A longdrawn out trial is not contemplated---------------------------------------------------------------------------------------4. Only general damages limited by Special damages can also be claimed.schedule can be awarded.---------------------------------------------------------------------------------------5. Income at the time of accident is Not only income at the time of accidenttaken into consideration but also future prospects certain to takeshape may be taken into consideration.---------------------------------------------------------------------------------------6. In an application under Section 163-A, It is the tribunal which has to adjudicatein case of fatal accident, amount is and come to the conclusion as to whichfixed and incase of negligence, multiplier will be applicable.multiplier is fixed on the basis of agegroup as stated in schedule II a part ofsection.---------------------------------------------------------------------------------------7. The age of the victim alone is relevant There are number of factors which theto arrive at the number of multiplier tribunal have to take into considerationFor example - who are the dependents,either heirs or parents and their age.---------------------------------------------------------------------------------------8. Age of heirs and parents is not taken The age of heirs and age of parents hasinto consideration while deciding the to be considered in deciding themultiplier under Section 163-A. multiplier in application under Section166 when accident victim is unmarried.---------------------------------------------------------------------------------------9. If claimant is not an earning person, The tribunal is required to adjudicate andSection 163-A provides for a decide the minimum income may be onminimum notional income. presumptions.---------------------------------------------------------------------------------------10. On furnishing the data as to age of the Such schedule is not available for claimsvictim, schedule provides a ready under Section 166, but, second schedulereckoner to calculate the award shall be taken only for guidance.amount under Section 163-A.---------------------------------------------------------------------------------------
3. In Section 163-A, a fired sum is mentioned in the schedule for death, whereas, Compensation has to be calculated for permanent disablement on the basis of the multiplier method fixed. Here, since it is a death, dependency compensation is fixed. One claimant was aged 28. For a motor accident victim aged 25 but not exceeding 30 with annual income of Rs. 18,000/-, the total compensation fixed was Rs. 3,06,000/-. One third has to be deducted and dependency compensation payable will be only Rs. 2,04,000/-. Tribunal has awarded Rs. 2,16,000/-. Therefore, an excess amount of Rs. 1,12,000/- was awarded under that dead. Therefore, the total compensation payable will be only Rs. 2,15,000/- instead of Rs. 2,27,000/-.
4. The appeal is allowed to the above extent with interest and costs as awarded by the Tribunal.