Common Judgment:
1. These three appeals have arisen out of the two awards from the claims of same accident.
1-a. The injured claimant by name K.Lokaiah, the pillion rider of the motor cycle bearing No.AP 03 L 1740 filed O.P.No.174 of 2007 filed u/sec.166 of the Motor Vehicle Act,1988 (for short, the Act ) initially and later amended to Section 166 of the Act, on the file of the learned Chairman, Motor Vehicles Accidents Claims Tribunal-cum-III Addl.District Judge at Tirupati (for short, Tribunal ),against the owner and Insurer of the tractor and trailer bearing No.AP03 V 9516 and 9517 for a claim of Rs.3,00,000/- for the grievous injuries sustained by him while proceeding on the motor cycle supra being ridden by G.Subramanya Raju(deceased) caused by the rash and negligent driving of the driver of said tractor and on contest, the tribunal by its award dated 23.10.2009 granted compensation of Rs.57,000/- with interest at 6%p.a. by fixing liability against both the respondents. Aggrieved by the same, preferred the appeal MACMA No.332 of 2010 with the contentions in the grounds of appeal that the tribunal ought to have calculated the loss of earning power on the basis of the loss of income as per percentage of 25% permanent disability certified by the P.W.2 and also in the absence of rebuttal evidence, that the tribunal failed to consider the evidence of P.W.2 doctor who certified Injury No.1 is grievous and underwent a surgery and screw was fixed and therefrom the claimant cannot run and jump and he gets pain while walking and the same disables the claimant from carrying out avocation as contractor and the tribunal ought to have awarded the amount to the extent of 25% suffered by him, and the amount awarded is utterly low to enhance.
1-b. Whereas, the claimants, none other than wife, two major daughters of the deceased by name G.Subramanyam Raju filed O.P.No.175 of 2007 for a claim of Rs.15,00,000/-, which on contest the tribunal dismissed. Aggrieved by the same, the claimants preferred the appeal in MACMA No.365 of 2010 with the contentions in the grounds of appeal that the tribunal failed to see that the R.W.2 driver of the tractor categorically admitted in the cross-examination that the accident arose on account of his negligence, that the tribunal ought to have believed the version of P.W.2 Lokaiah-the claimant in O.P.No.174 of 2007 who clearly narrated circumstances under which Ex.B.1 complaint was given and in that regard only he filed a private complaint which was registered as Cr.No.18 of 2016 and the tribunal dismissed the claim by giving undue importance to the opinion formed by the police, hence to set aside the award by allowing the appeal by granting compensation as prayed for.
1-c. The 2nd respondent-Insurer of the alleged tractor supra belongs to the 1st respondent of the claim petition O.P.No.174 of 2007(in O.P.No.175 of 2007 also the self-same Insurer) preferred MACMA No.440 of 2010 with the contentions in the grounds of appeal that the claim is untenable, baseless and the accident is result of negligence of rider of the bike and in Cr.No.3 of 2016 police filed final report against the deceased Subramanya Raju as accused since died closed and the first claimant of O.P.No.175 of 2007 being wife of deceased filed a private complaint that was forwarded to the police who registered Cr.No.18 of 2016 and after investigation referred as false thereby the driver of the tractor and trailer no way at fault and the claims are liable to be dismissed.
2.The factual matrix is that on 10.01.2006 while the deceased G.Subramanyam Raju, as a rider along with his friend Lokaiah(claimant in O.P.No.174 of 2007) as a pillion rider were going on a Hero Honda Splendor motor cycle supra on the extreme left side and when they reached near Vethala Thaduku village, Narayanavanam Mandal, at about 2.00 A.M., the tractor supra being driven by the rash and negligent driving of its driver dashed to the motor cycle, due to which the rider Subramanya Raju died on the spot and Lokaiah received grievous injuries. The driver of the tractor took Lokaiah to Community Health Centre, Puttur and taking advantage of the injuries of Lokaiah, prepared a false complaint and obtained signature of Lokaiah and lodged a complaint before Narayanavanam police station against the deceased to escape from punishment. Said Lokaiah after regaining consciousness, filed a private complaint against driver of Tractor.
3. Heard learned counsel for respective claimants who submits that the tribunal gravely erred in dismissing the claim once there is involvement of the tractor and trailer also instead of awarding compensation, for claim u/sec. 163-A of the Act, there is no need to plead or prove negligence of rider of bike or opposite vehicle against which the claim is maintained for the compensation to award as per schedule II of the M.V.Act and thereby to allow the claims and in the injuries claim saying the said amount awarded is utterly low as the injured also suffering with permanent disability which effects his avocation and in death claim submits that the deceased was RTC driver earning at about Rs.10,000/- p.m. as salary and aged about 49 years and the claimants lost breadwinner and thereby entitles to compensation and the dismissal as wrong.
4. Whereas, it is the submission of the leaned counsel for the Insurer in their appeal against the injuries claim awarding compensation and stating as tribunal rightly dismissed the death claim holding negligence of deceased rider of bike and the tribunal could also even dismiss the injuries claim with the same analogy for not entitled to come to different analogy thereby sought for dismissal in support of the appeal grounds of said Insurer against the injuries claim in opposing the other two appeals of the claimants also.
5. Heard all the three appeals at length for common disposal and perused the material on record.
6. So far as the maintainability of the claims concerned, before discussing the further facts, it is necessary to state the scope of the provisions of the Motor Vehicles Act, 59 of 1988, amended by Act, 54 of 1994 and further amended by Act, 39 of 2001. It is needless to say, the Chapters 10 to 12 are not only inter-related but also interlinked. Section 140 is incorporated in Chapter X, Section 163A is incorporated in Chapter XI and Section 166 is incorporated in Chapter XII are with different wording. The wording of Section 140(3) is with self same wording of Section 163A(2), however, there is no similar wording of Section 140(4) in Section 163A to take away the defence right specifically like in Section 140(4). It is to say, in a claim filed under Section 140 or 163A, the claimant shall not be required to plead and establish the death or permanent disablement relating to the claim were due to wrongful act, neglect or default of owner or owners of the vehicle or vehicles concerned or any other person. A close reading of this provision speaks the claimants are not required to plead or prove negligence of the deceased or injured as well as negligence of the person owned the vehicle against whom the claim is made or in case of more than one vehicle involved of negligence of any one of them or composite or contributory negligence as the case may be of the vehicles drivers or other person.
7. So far as the claim under Sections 140, 163A and 166 concerned, it clearly provides by Sections 163-B and 141 that the claim can be filed under either of said sections and not under both; whereas a person who filed application under Section 140 is entitled to file an independent application under Section 166 with claim therein or simultaneously or later subject to these provisions as the case may be. Therefrom, so far as claim under Section 163A concerned, there is no requirement and proof of fault even not an interim measure. Similarly, from reading of Section 168 r/w 166 of the Act, Section 168(1) speaks the claim under Section 166 in determining subject to provisions of Section 162 in the award, the amount of compensation appears it to be just and specifying the person or persons to whom compensation shall be paid and the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. It indicates the determination specifically including to the extent of liability in claim under Section 166 on fault liability from pleading and proof. It is leave about sections 167 r/w 163A or 166-the compensation that can be claimed under Workmen s Compensation Act for death or bodily injury under that Act, anything contained in that Act, the claimants are entitled to compensation may claim such compensation under either of these two Acts but not under both. It appears from said arrangement also of Section 140 is incorporated in Chapter X of totally no fault liability-on proof of accident while vehicle in use, whereas Section 163A is incorporated in Chapter XI-of semi fault liability-on proof of accident while vehicle in use claimant is entitled to compensation, however does not specifically prohibit the respondent to raise plea of negligence or fault of injured/deceased or his or his vehicle driver contributory or composite negligence for no similar prohibitory clause in Section 163A similar to Section 140 and needless to say Section 166 is incorporated in Chapter XII-of totally fault liability from said combined reading of the three provisions of the three chapters in Juxtaposition, more in particular noticing the difference between Section 140(3and4) with Section 163A(2) detailed supra. This conclusion no doubt lends support from the recent two judge Bench expression of the Apex Court in National Insurance Corporation Ltd. v. Sinitha (2012) 2 SCC 356)wherein it was held by referring to the earlier two judge bench expression of the Apex Court in Oriental Insurance Co. Ltd. Vs Hansrajbhai V. Kodala (2001 (5) SCC 175)and in answering in affirmative on the aspect of claim for compensation under Section 163A of the Motor Vehicles Act can be defeated either by the owner or by the insurance company by pleading and establishing that the accident in question was based on the contributory negligence of the offending vehicle. It was observed that Section 140(3) and Section 163A(2) both are pari-materia provisions and there is no provision corresponding to Section 140(4) in Section 163A and thereby the claim for compensation under Section 163A held is fault based liability from the contributory negligence or fault negligence of deceased/claimant or disabled victim in causing the accident compensation may be reduced on such proof. However, the onus to prove contributory negligence remain on the defence in opposing the claim under Section 163A i.e. the owner and insurer can defend the claim and the Hansrajbhai V. Kodala (supra) did not decide that determination of compensation under Section 163A is based on no fault liability principle. The claim for compensation raised in Section 163-A need not be based on pleadings or proof of claimants showing absence of contributory negligence, but for onus to prove contributory or composite or total negligence of injured/deceased or of his traveling vehicle driver; lies on the shoulders of the owner or insurer, opposing and defending the claim to so establish in discharge of the burden lies on them. It was observed for the conclusion that where claim cannot be defeated on account of contributory negligence then such provision would fall under no fault liability principle. It is thereby as per Section 140(4), both claim and defence are precluded from raising any ground of fault and whereas Section 163-A is an independent provision with non-obstinate clause having over riding effect over all other provisions of the Act. It is also a rationale behind it, in saying as fault liability principle from where large compensation amount involved or compensation amount is likely to be high, it is legitimate that insurance company is not fastened with liability when offending vehicle suffered fault (wrongful act, neglect or doubtful) under alleged act. The appellant/ insurance company also placed reliance upon the decision of Bandana v. Rajesh Kumar (2013 ACJ 1239)wherein it was held by mainly relying upon Sinitha and Hansrajbhai (supra) besides Minu B.Mehta v. Balkrishna Ramchandra Nayar (1977 ACJ 118 (SC), that negligence of the victim can be decided by allowing the insurer and owner being the opposite parties to the claim to defend and fixed 25% contributory negligence on the deceased.
8. However, it is important to notice that after Hansrajbhai and before Sinitha, where correctness of the law laid down in Hansrajbhai under Section 163A came for consideration on reference made, was answered by the three judge bench expression in Deepal Girishbhai Soni and others Vs. United India Insurance Co.Ltd., Baroda [(2004) 5 SCC 385 : AIR 2004 SC 2107]in the affirmative. While so answering, it was held that though both Sections 166 and 163A are final proceedings, under Section 166 on fault liability, the duty is on the claimants to plead and prove wrongful or negligent act of opposite party to get higher compensation, whereas under Section 163A on no fault liability, there is no duty on the claimants to plead and prove wrongful or negligent act of opposite party to get compensation under the structured formula. It did not specifically say the opposite parties right to defend in this regard by the owner/insurer respondents to the claim of negligence or fault or contribution on the injured/deceased or their vehicle driver, available under Section 166 is not there and taken away under Section 163-A. Even for so holding it was not specifically considered referring to the Section 140(3) and Section 163A(2) of both are pari-materia provisions and there is no provision corresponding to Section 140(4) in Section 163A and thereby the claim for compensation under Section 163A held is fault based liability from the contributory negligence or fault negligence of deceased/claimant or disabled victim in causing the accident compensation may be reduced on such proof, that was in fact referred and answered in Sinitha supra. But for that, both the expressions in Sinitha and in Deepal Girishbhai Soni (supra) confirmed law laid down in Hansrajbhai (supra). In fact on this aspect that Deepal Girishbhai Soni was not referred in Sinitha supra while holding Section 163A is founded on fault liability principle, correctness of the law in Sinitha supra was referred to a larger bench in United India Insurance Company Vs Sunil Kumar (2014(1)SCC680)and it is pending.
9. In fact in Deepal Girishbhai Soni supra, it was observed in paras 39 to 42 that Section 163A was introduced in the Act by way of a social security scheme. It is a code by itself. Section 140 of the Act dealt with interim compensation but by inserting Section 163-A, the Parliament intended to provide for making of an award consisting of a pre- determined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. The Amendment was, thus, a deviation from the common law liability under the Law of Torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victim in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under Section 166 of the Act .
10. Thus, from a combined reading of the provisions supra with reference to the law as laid down in Sinitha, confirming Hansrajbhai supra including with reference to Deepal Girishbhai Soni supra that for the efficacious and as final relief under Section 163-A that can be maintained even negligence is on the part of the victim/claimant for there is no need of proof required much less plea, but for proof of accident while the vehicle in use, as a deviation from general law of burden on the Claimant to plead and prove negligence of the other side and with no fault of victim/claimant; however, it no way speaks from said combined reading in juxtaposition of these provisions that opposite parties are prohibited from taking defence plea and prove any negligence of victim/complainant or their vehicle driver for non-liability or proportionate liability, as maintainability of claim is one thing proved or not proved or disproved as contemplated by the general principles and as defined in Section 3 of the Indian Evidence Act is other thing.
11. Leave apart, even in case of negligence of the victim once claim is maintainable under Section 163-A to plead and prove, there is no duty on the claimant/s and they can ignore their negligence and maintain a claim, but for the controversy as to does it take away the opposite party s right to plead and prove under the common law but for such deviation is only to the extent of exempting the complainant from duty to plead and prove to avail quick relief.
12. No doubt, the Apex Court the Division Bench in Ningamma Vs. United India Insurance Company Limited (2009) ACJ 2020(referring to Deepal Girishbhai Soni supra, Oriental Insurance Company Limited Vs. Meena variyal (2007) 5 SCC 428), New India Assurance Company Limited Vs. Asharani (2003) 2 SCC 223), OICL Vs. Rajnidevi (2008) 5 SCC 736)Raj Rani Vs. OICL (2009) 13 SCC 654)and NIAC Vs. Sadananda Mukhi (2009) 2 SCC 417)observed that a claim by owner of the vehicle or the deceased once stepped into the shoes of the owner of the vehicle, no way maintainable much less to apply Section 163-A of the Act; but from the facts of deceased driving motor cycle parted from its real owner caused that accident by dashing against the bullock cart, for such claim under Section 163-A of the Act won t lie; it is to consider if at all maintainable under Section 166 of the M.V.Act in remanding the matter to the High Court in saying the claimant need not plead or establish death or permanent disability due to any wrongful act or neglect or fault of the driver and owner of the vehicle concerned against whom the claim is maintained.
13. Before coming further, though the claims say as if running tractor dashed the bike, it is clear from the evidence on record that the tractor and trailer was in fact only a parked one, no doubt without blinking lights in the night and from that also it contributed to the accident. As can be seen from the evidence on record particularly of R.3 police constable by name A.Immanuel on the death claim O.P.No.175 of 2007. Had there been any precaution of blinking lights the accident could not be the result as from that indication it could be foreseen the parked vehicle by the deceased rider of the bike in averting that, the ultimate result is dashing stationed tractor and trailer on the right side which is not meant for parking that too without blinking lights that contributed therefrom. Thus there is equal liability of the tractor trailer driver, owner and Insurer. No doubt, the deceased rider of the bike if owner of the bike or by stepping into the shoes of the owner of the bike, not entitled to maintain the claim against the said owner, unless there is PA coverage as observed in Ningamma supra. However, the facts herein are different to Ningamma supra for the reason there was no tractor trailer parked without blinking lights, but bullock cart parked on the road and the bike driver by deceased who had the vehicle from the owner with permission by stepping into the shoes of owner. The bullock cart which is not a motor vehicle and the deceased was not the third party of the bike ridden by him but for against the bullock cart for which claim under Section 166 of the M.V.Act, even no way survives but for any remedy in civil Court if there is negligence of bullock cart. Whereas herein there is negligence of the driver and owner of the tractor and trailer(motor vehicle) in its parking in night on the road without blinking lights to maintain the claim to that extent if necessary by also impleading owner and insurer of the bike as co-respondents. In this regard, the law is very clear as discussed and laid down by the Court in MACMA No.2072 of 2011.
14. From the above, once the tribunal is entitled to decide the claim and award compensation against the respondents, it is left open to the respondents to proceed against the owner and Insurer of the bike for their contribution following the expression in Khenyei Vs. NIAC Limited (2015) 9 SCC 273)for non-impleadment of the other joint tort feasors no way a ground to exonerate the insurer but for on payment to claim apportionment for equal liability to that extent.
15. With regard to the sufficiency of quantum of Rs.57,000/- awarded by the tribunal in the injury claim in O.P.No.174 of 2007 (MACMA No.332 of 2010) is concerned, as per Ex.A.3 wound certificate showing fracture to left femur, simple abrasion over left fore arm 6 x 3 cm, the P.W.2 doctor deposed of there is screw fixing by conducting operation on account of the left femur of comminuted fracture, though he deposed about 25% disability, there is no basis or proof for nothing shown from wound certificate and no discharge summery filed and no disability certificate issued much less with reference to any fresh X-ray but for saying the P.W.1 cannot jump or run from the claim of pain in walk. P.W.2 did not issue any disability certificate and did not state that P.W.1 cannot work much less as contractor with any impact therefrom his earnings. The tribunal in fact thereby taken Rs.25,000/- for the disability as a lumpsum. Rajkumar Vs. Ajakumar (2016) ACJ 1)is the authority to award lumpsum where there is no loss of earnings from any disability even.
16. Having regard to the above, even awarded 40,000/- towards any disability as even of 10% lumpsum from the compound femur fracture and Rs.25,000/- towards pain and sufferance to said compound fracture and Rs.2000/- for the abrasion to the left fore arm, Rs.10,000/- towards medical expenses and extra nourishment as awarded by the tribunal, Rs.5,000/- for second operation required for removal of implant, and Rs.18,000/- towards loss of earnings, attendant and transport charges, extra nourishment, is just to award by enhancing Rs.57,000/- to Rs.1,00,000/- so also enhancing rate of interest from 6% to 7.5% by holding that the respondents to pay the same and claim by filing execution from the owner and Insurer of the bike also for 50% liability for the equal contribution to the accident.
17.Coming to the death claim(MACMA No.365 of 2010 against award in O.P.No.175 of 2007), so far as the deceased rider of the bike, who stepped into the shoes of the owner, cannot maintain the claim u/sec.163-A of the Act, so far as his role concerned is bike owner as held in Ningamma supra, but for any personal accident claim against the bike Insurer if at all by civil suit or by consumer dispute and so far as the liability of the stationed tractor and trailer against its driver, owner and Insurer the claim is maintainable under Section 166 of the Act, as held in Ningamma supra, however there is no other joint tort feasor but for deceased and the principle laid down in Kheenyei supra herein thereby cannot be extended but for to decide under Section 168 of the Act which in a claim under Section 166 of the Act enables to determine extent of liability as laid down by the three Judge Bench of the Apex Court in NIC Vs. Swaran Singh (2004) 3 SCC 297= 2004 ACJ 1)as observed supra of equal contribution for 50% liability.
18. From the above coming to the 50% liability of the respondents-owner and Insurer of the tractor and trailer to decide the claim with reference to what is discussed supra of the settled principles by considering the claim under Section 166 of the M.V.Act; The Ex.X.2 is the service record of the deceased who was born on 21.05.1956 and by the date of accident, he completed 49 years 6 months that is also reflected from Ex.A.1 post mortem report and Ex.A.2 inquest report. The tribunal taken therefrom age as 50 years and for a person aged between 46 to 50 years as per Sarla Verma Vs Delhi Transport Corporation (2009 ACJ 1298)it is just to take multiplier 11. Even the prospective earnings increase of deceased taken at 15%, the salary certificate X.1 shows of December,2005, his salary of Rs.9246/- total including the allowance and after deductions net salary is Rs.4,550/- however only compulsory deductions therefrom to be reduced like professional tax Rs.80/- G.I. of Rs.30/- and etc., contribution savings, the net salary therefrom can be taken Rs.8,000/- with 15% increase, it comes to Rs.9,200/- after 1/3rd deduction, Rs.6133/-x 12 x 11 = Rs.8,09,600/- + Rs.50,000/- towards consortium, Rs.10,000/- towards loss of estate , Rs.25,000/- towards funeral expenses= Rs.8,94,600/-/2(half)= Rs.4,47,300/- rounded to Rs.4,48,000/-with interest at 7.5%p.a. which the claimants are entitled from respondents 1 and 2. For rest of the claims of the deceased bike rider not a third party to bike if any is against the Insurer of bike for any personal accident claim if at all covered by the policy for the risk. If at all it is shown as third party to the bike, remedy for remaining 50% compensation claim against bike owner and Insurer is left open and for that the observations above no way comes in the way.
19. In the result,
a) MACMA No.365 of 2010 (against award in O.P.No.175 of 2007) is partly allowed while setting aside the dismissal order of the tribunal and by granting compensation of Rs.4,48,000/- towards their 50% liability (out of total compensation of Rs.8,94,600/-) with interest at 7.5% p.a. from the date of petition till realization. Both the respondents are directed to pay the above compensation for the policy covers the risk. Any other available remedies if at all Insurance policy of bike covers the risk to claim are left open to approach appropriate forum as observed supra.
b) MACMA No.332 of 2010 (against award in O.P.No.174 of 2007) is partly allowed by enhancing the compensation awarded by the tribunal of Rs.57,000/- to Rs.1,00,000/- so also the rate of interest from 6% to 7.5% from the date of petition till realization, by holding that the respondents to pay the same and claim by filing execution from the owner and Insurer of the bike also for 50% liability for the equal contribution to the accident.
c) MACMA No.440 of 2010 (against award in O.P.No.174 of 2007) filed by the Insurer is disposed of in view of the observations supra and particularly from directions in the other two appeals supra.
d) There is no order as to costs. Miscellaneous petitions, if any pending, in these appeals shall stand closed.