A.B. Pal, J.
1. The same common judgment and award dated 22.3.2005 by the Motor Accidents Claims Tribunal, Aizawl passed in M.A.C. Case Nos. 79 and 80 of 2002 being impugned in the above two appeals preferred by the insurer appellant, I propose to dispose them by this common judgment.
2. In a motor accident that occurred on 2.5.2002, Lalthangveli and her husband K. Zomuana, sustained injuries. The vehicle bearing registration No. MZ 01-B 0498 involved in the accident was a truck, which they hired for carrying the sandstone. It was found later that the accident had taken place due to failure of the brake system and not due to any negligence on the part of the driver. No criminal case was, therefore, registered against the driver of the vehicle. The injuries sustained by the wife rendered her permanently disabled to the extent of 30 per cent only. The husband came to be permanently disabled to the extent of 3 per cent only.
3. While deciding the claim of compensation, the learned Tribunal accepted the claim of monthly income of the wife to be Rs. 3,500 (rupees three thousand five hundred) and multiplied the same by 12 and 17 (multiplier). 30 per cent (being disablement) of the said amount came to be Rs. 2,14,200, which has been added by an amount of Rs. 1,721 on medical expenses, Rs. 10,000 on non-pecuniary damages and Rs. 20,000 on mental stress to make the total amount of Rs. 2,55,921 (rupees two lakh fifty-five thousand nine hundred twenty-one). In case of the husband his income of Rs. 6,000 p.m. has been accepted by the Tribunal. The said amount has been multiplied by 12 and 13 multiplier and then 3 per cent (being disablement) of the said amount brought the loss of income to Rs. 28,080. The amount is added by Rs. 1,116 for medical expenses, Rs. 10,000 for non-pecuniary damages and Rs. 7,500 on account of pain and suffering and yet another Rs. 10,000 for loss of amenities of life. Total amount thus has been brought to Rs. 56,696 and rounded to Rs. 56,700. In both the cases interest at the rate of 9 per cent per annum has been allowed from the date of filing of the claim petition. Both the awards are under challenge on technical issue and the method of assessment as well.
4. I have heard Mr. M. Guite, learned Counsel for the appellant as well as Ms. Helen Dawngliani, learned Counsel for the respondent No. 1 and Mr. A.R. Malhotra, learned Counsel for the respondent No. 2.
5. The challenge to the said judgment is firstly on the ground that the claim cases were filed under Section 163-A of Motor Vehicles Act ('the Act'), the essential precondition of filing such a claim being that the annual income of the victim should not be more than Rs. 40,000. The claimant's wife stated in her claim application that her income was Rs. 3,500 per month, i.e., Rs. 42,000 annually. Similarly the monthly income of the husband has been stated to be Rs. 6,000, i.e., Rs. 72,000 annually. Thus, both the claims are not maintainable under Section 163-A of the said Act. On the question whether the claim cases can be treated under Section 166 of the Act, the learned Counsel for the appellant-insurer would argue that the two provisions being mutually exclusive such conversion is not legally permissible, in support of his submission the learned Counsel has placed reliance on a decision of this Court in New India Assurance Co. Ltd. v. Phelishsa Bakai . In the said case a Division Bench of this Court held, thus:
(75) ...Motor Vehicles Act, 1988, lays down two comprehensive and independent, but complete in itself mechanism for receiving compensation for injuries sustained or death caused in motor vehicular accidents. Both the schemes for compensation, one conceived under Section 166 and the other perceived by Section 163-A are mutually exclusive and independent of each other and it is for a person who wants to claim compensation, to decide as to which procedure or mechanism he or she would opt for.
(76) ... when it is left with the claimant to choose the course of action, no one can maintain a claim both under Section 166 as well as Section 163-A. The Motor Vehicles Act, 1988, also does not conceive of a situation when based on an application made under Section 166, the Tribunal, on its own on the failure of the claimant to prove fault, can award compensation by taking recourse to Section 163-A. When a claimant makes an application for compensation under Section 166 and also receives interim compensation under Section 140, he shall, so long as his application for compensation remains pending under Section 166, prove, as a condition precedent for obtaining compensation under Section 166, that the accident took place due to fault or negligence or default of the owner or owners of the vehicle or vehicles concerned or of any other persons.
6. It would be apparent from the above that when in a case under Section 166 the claimant failed to prove fault, it is not open to the Tribunal to convert it under Section 163-A, only because the same does not require the claimant to prove any fault on the part of the driver. In the present case the claim petitions were filed by filling up prescribed forms wherein the last column of Section 163-A of the Act, 1998 was written, presumably by the lawyer of the claimants. The Tribunal in its first order dated 29.8.2002 in both the cases just mentioned that the claim petitions had been filed under Section 163-A of the Act. There is no mention in the said order under what provision the Tribunal, after perusing the claim petitions, registered those cases. In the claim petition by the husband monthly income was shown to be Rs. 6,000 and in the claim petition by the wife, the same was shown to be Rs. 3,500 p.m., both being more than Rs. 40,000 annually. It was, therefore, the duty of the Tribunal to mention clearly in the first order under what provision such claims had been registered. When the structured formula provided under Section 163-A of the said Act is not intended to cover the cases where the annual income of the victim is more than Rs. 40,000, it was not legally permissible for the Tribunal to register and adjudicate such claims under Section 163-A. No doubt, even in a claim case under Section 166 of the Act, the Tribunal is at liberty to take aid from the structured formula in the absence of credible evidence and materials on record. Taking of such aid does not ipso facto bring a claim case under Section 163-A of the Act, when the income of the victim is more than Rs. 40,000 annually. As there is nothing to show that the claim cases in hand were registered under Section 163-A of the Act and as the annual income of the claimants were shown to be more than Rs. 40,000 in the claim petitions, there is no reason to take a view that those were registered under Section 163-A of the Act for determination of the compensation as per the structured formula. Both the cases should be taken as cases under Section 166 of the said Act. Once again it has to be made clear that there is no legal bar to apply the structured formula even in cases under Section 166 of the Act.
7. There is no dispute about the multiplier chosen in the method applied for the purpose of calculation of the amount. But, it has been argued on behalf of the appellant that there is no provision for awarding compensation for non-pecuniary damages. No evidence on such non-pecuniary damages has been placed on the record and, therefore, in the absence of the same it was not appropriate for the Tribunal to award Rs. 10,000 in favour of the claimant. It is true, the structured formula does not contemplate non-pecuniary damages presumably for the reason that compensation on all heads, pecuniary and non-pecuniary, have been covered by the said formula. Once the Tribunal has taken assistance of the structured formula he cannot go beyond that and accordingly compensation awarded must be deemed to have covered both pecuniary and non-pecuniary damages. Apart from the amount to be awarded as per structured formula, the further amount not more than Rs. 5,000 can be awarded for pain and suffering. On medical expenses the award cannot exceed Rs. 15,000. In both the cases the amount on medical expenses is only Rs. 1,721 and Rs. 1,116 only. There is no provision in the said formula to award compensation on mental stress in life. This being the position the wife is not entitled to Rs. 10,000 on non-pecuniary damages. She is, however, entitled to Rs. 5,000 only towards pain and suffering. The total amount would thus come to Rs. 2,14,200 (loss of income) + Rs. 1,721 (medical expenses) + Rs. 5,000 (pain and suffering) = Rs. 2,20,921. Similarly, the husband is entitled to Rs. 28,080 (loss of income) + Rs. 1,116 (medical expenses) + Rs. 5,000 (pain and suffering) = Rs. 34,196. The awards impugned shall, thus, stand modified to the above amount.
8. Another question raised by learned Counsel for the insurer is that in view of the judgment by the Apex Court in New India Assurance Co. Ltd. v. Asha Rani : AIR2003SC607 , the insurer is entitled to recover the amount from the owner, but such a direction has not been given. Per contra, Mr. Malhotra, would submit that it is on record that the vehicle was hired by the couple for the purpose of carrying sandstone. Therefore, being the owner of the goods they are covered by the policy. Consequently, the insurer cannot be absolved from the liability to pay the compensation. This argument of Mr. Malhotra, has much force and, therefore, the same is accepted.
9. For the reasons and discussions as aforementioned, both appeals are partly allowed and the judgment and award impugned stands modified to the extent that the respondent wife shall get Rs. 2,20,921 (rupees two lakh twenty thousand nine hundred twenty-one) only and the respondent husband shall get Rs. 34,196 (rupees thirty-four thousand one hundred ninety-six) only. The interest part of the award is, however, upheld. There shall be no order as to costs.