1. This Appeal is filed by the insurance company being aggrieved by the judgment and award passed in MVC. No. 2680/2000 dated 4.7.2003 by MACT , Bangalore (SCCH 7) challenging the liability to pay compensation.
2. The relevant facts of the case are that the on 17.2.2003 at about 10.45 p.m. one Muniyappa was riding scooter bearing No. KA 01/J-8690 on Hosur Lashker Road from Adugodi towards Madiwala, Bangalore. When he came near 'Pizza Corner', a pedestrian came in front of the scooter suddenly and in order to avoid an accident, Muniyappa turned the scooter towards the extreme left side of the road and dashed against the road divider and fell down and sustained serious injuries and later died in the Hospital, contending that they had lost the bread earner of the family, the legal representatives of Muniyapa filed a claim petition under Section 166 of the MV Act but later during the course of trial got the petition amended to one under Section 163A as per the order of amendment dated. 4.10.2002.
3. On receipt of notice from the Tribunal, Respondent No. 5 herein, the owner of the scooter appeared and filed his written statement denying the accident and seeking dismissal of the petition. The appellant insurance company filed its written statement denying the entire averments of the claim petition and specifically contending that the deceased Muniyappa was himself negligent in causing the accident Therefore, his legal representative are not entitled to maintain the claim petition as there was violation of the terms and conditions of the policy and therefore sought for dismissal of the same.
5. Based on the above pleadings, the Tribunal framed the following issues.
1. Whether the petitioners prove that the deceased M-Muniyappa, S/o Muniswamy died in road traffic accident that occurred on 17.2.3000 at about 10.45 p.m on Hosur road near Pizza Comer, Adugodi (within the limits of Adugodi Police Station) when he was proceeding on scooter No. KA-O1/J-8690?
2. Whether the petitioners prove that, they are the legal representatives of the deceased?
3. Whether the petitioners prove that they are entitled for compensation as claimed and from whom?
4. What award or order?
6. In support of the case, Respondent No. 1 to 4/Claimants examined 1' Respondent as RW. 1 and got marked Ex. P1 to P8 while no evidence was let in by the other side. Based on the material on record the Tribunal granted compensation Rs. 3,98,000/- with interest at the rate of 6% pa from the date of petition till realization. Being aggrieved by the said judgment and award the insurance company has preferred tins appeal
7. We have heard Sri. A.N. Krishnaswamy learned Counsel for appellant and Sri. Sripad Shastry learned for Respondent 1 to 4.
8. It is submitted on behalf of the appellant that the Tribunal was not correct in awarding compensation to an extent of Rs. 3,98,000/- since the claim petition was initially filed under Section 166 of the M.V. Act and after becoming aware that the said petition was not maintainable the same was got converted to one Under Section 163A of the MV Act and even then the petition was not maintainable. Elaborating the said submission he contends that the reason for converting the petitioner to one Under Section 166 of the Act to one Under Section 163A of the Act was on account of the fact that the deceased was solely responsible for his death and that therefore there being no other tort-feasor the petition was sought to be maintained under Sub-section (2) of Section 163A. However, the Tribunal lost sight of the fact that the petition under Section 163A is maintainable only when the claim is made in terms of Schedule-II but in the instant case the compensation awarded though apparently as per Schedule-II of the MV Act is nevertheless not maintainable under Section 163A of the said Act He further contends that unless there an another vehicle involved in the accident or there is another tort-feasor Section 163A of the Act is not applicable. He, therefore requests this Court to set aside the judgment and award of the Tribunal by allowing the appeal
9. Per contra, it is submitted by the learned Counsel for Respondents 1 to 5 that though initially the claim petition was filed under Section 166 of the MV Act, since the claimants realized that there was no negligence on the part of an other person, the claim petition was converted to one under Section 163A and the Tribunal after allowing the said amendment has awarded compensation in terms of schedule-II to the said Act by restricting the annual income of the deceased to Rs. 39,000/- although the deceased was receiving over and above the said income by applying the multiplier as per said schedule-II and also by awarding compensation on conventional heads in terms of the same. He further submits that under Sub-section (2) of Section 163A of the Act it is not necessary to establish negligence and therefore the petition was maintainable and thus the award of the Tribunal does not call for interference in this appeal and therefore the same may be dismissed.
10. Taking note of the rival submissions the following points arise for our consideration:
1) Whether the Claim Petition under Section of 166 of the MV Act was maintainable?
2) If the answer to Point No. 1 is in negative whether the Tribunal was right in permitting conversion of the claim petition to one under Section 163A of the said Act?
3) if the answer to Point No. 2 in the affirmative whether the Tribunal was justified in awarding compensation in terms of the 2nd Schedule of the Act by restricting the annual income of the deceased to Rs. 39,000/-?
4) Whether the Respondents claimants are entitled any relief?
11. It is not in dispute that the deceased in the instant case died while trying to avoid a pedestrian and as result dashed against the road divider and succumbed to the injuries sustained on account of the said accident There was no other vehicle or tort feasor involved in the said accident These facts are the basis to determine under what provision of law the claim petition was maintainable. It is also not in dispute that the legal representatives of the deceased filed the claim petition under Section 166 of the MV Act
12. Chapter XII of the said Act deals with Claims Tribunal. Section 165 of the Act pertains to the constitution of Motor Accidents Claims Tribunal for the purpose of adjudicating the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles, or damages to any property of third party so arising, or both. A claim petition can be filed under Section 166 or under Section 140 or under Section 163A of the Act While Section 166 is under Chapter XII, Section 163A is under Chapter XI which deals with insurance of motor vehicles against third party risks and whereas Section 140 is under Chapter X, which deals with liability without fault in certain cases. Section 168 states that on receipt of an application for compensation made under Section 166, the claims Tribunal shall after giving notice of the application to the parties including the insurer and after giving the parties an opportunity of being heard, hold an enquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may be just and specifying the person or persons to whom the compensation shall be paid and in making the award the Claims Tribunal shall specify 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. The proviso to Sub-section (1) of Section 168 states that when a claim for compensation under Section 140 in respect of death or permanent disablement of any person is made, such application and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. Section 169 pertains to procedure and powers of the Claims Tribunal just as a Civil Court would have for the purpose of taking evidence on oath and enforcing attendance of witnesses and other such procedures of light nature. Under Section 175 where any Claims Tribunal has been constituted for any area there is a bar of jurisdiction of the Civil Court to entertain any question relating to any claim for compensation which may be adjudicated by the Claims Tribunal for that area. On a conspectus reading of these provisions, it becomes clear that it is only the Motor Accidents Claims Tribunal that is invested with the jurisdiction or determination of claims in respect of death or bodily injuries on account of the use of a motor vehicle under the Act There is an express bar to approach the Civil Court Therefore, Respondent No. 1 to 5 rightly approached the Tribunal far the adjudication of their claim in respect of the death of Muniyappa in the accident. However, the question for our consideration is at to whether the claim petition under Section 166 initially filed was maintainable and if not whether the Tribunal could have permitted conversion of the said petition to one under Section 163A of the Act by an amendment. Before answering the said points it is necessary to extract Section 166, 163A and 140 of the MV Act, 1888.
Section 166: (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made:
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impeded as respondents to the application.
(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or with the local limits of whose jurisdiction the defendant resides, they shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to the effect immediately before the signature of the applicant
Section 163-A: 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 of the use of motor vehicle, compensation, as indicated m the second schedule, to the legal heirs or the victim, as the case may be.
Section 140: Liability to pay compensation in certain cases on the principle of no fault-(1) 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.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty five thousand rupees).
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish mat 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.
(4) A claim for compensation under Sub-section (I) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced en the basis of the share of such person in the responsibility for such death or permanent disablement.
13. Section 166 applies to a case where the claimants have to prove negligence on the part of the tort feasor before compensation can be awarded in a claim petition filed by them. Under proviso to Sub-Section 2 of Section 166 a claim has to make a statement that no claim for compensation under Section 140 has been made. Therefore, the two Sections namely Section 166 and Section 140 are mutually exclusive in as much as when a claim petition under Section 166 is filed, it is incumbent upon the claimants to prove negligence on the part of the tort feasor.
14. Section 163-A of the Act begins with a non-obstinate clause and it says that notwithstanding anything contained in the Act (Motor Vehicles Act) or any other law for the time being in force, the owner or insurer of a motor vehicle is liable to pay as per Schedule-11 in respect of death or permanent disablement due to accident arising out of the use of a motor vehicle. Under Sub-clause 2 of Section 163-A the claimant is not required to plead or establish that the death or permanent disablement was due to any wrongful act or negligence on the part of vehicle or vehicles concerned or of any other person. Therefore, the implication is that the claimant can seek compensation in terms of the formula provided under Schedule-II without pleading or establishing negligence on the part of the owner of the vehicle or vehicles concerned or of any other person. This implies that if the tort is committed by a person other than the claimant or deceased then the Legal Representatives of the deceased or the injured claimant without establishing the said negligence, can seek compensation in terms of the Schedule-11.
15. Under Section 140 of the Act, the owner of the motor vehicle is liable to pay in terms of the said Section where the death or permanent disablement of any person occurs on account of the accident arising out of use of a motor vehicle, the extent of compensation is Rs. 50,000/- in the case of death and Rs. 25,000/- in the case of an injury and the claimant is not required to plead and establish that the death or permanent disablement 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. A combined reading of Sub-section 1, 2 & 3 of Section 140 would imply that the liability is in the realm of strict liability, but there is a ceiling put on the compensation that can be claimed. However, under Sub-Section 4 of Section 140, the right of the claimant under Sub-Section 1 of Section 140 cannot be defeated or reduced on the basis of the share of such person (injured claimant or the deceased) in the responsibility of such death or permanent disability. This means that where the injured claimant or the deceased had contributed to the negligence to any extent even then under Sub-section 1 and 2 the claim petition can succeed.
16. Under Sub-section 5 of Section 140 in case the claimant is entitled to compensation under any other law they would be so entitled despite the amount of compensation fixed under Sub-section 2 of Section 140 but if a claim is made under Section 163-A or under any other law then any compensation awarded under Section 140 of the Act would be reduced to that extent.
17. Under Section 141 of the Act the right to claim compensation under Section 140 is in addition to any other right except the right to claim under the scheme referred to under Section 163-A. Therefore, this Section also makes it clear that Section 163-A and Section 140 are mutually exclusive. Further under Section 144 of the Act, it is stated that the Provisions of the Chapter X which contains Section 140 has an over-riding effect notwithstanding anything contained in any other provisions of the Act or any other law for the time being in force. As already mentioned, Section 163-A also has a non-obstinate clause, but Section 163-B states if a compensation can be claimed under Section 140 and Section 163-A of the Act, then the claimant can file either under the said section and not under both. A reading of Section 163-A and Sub-section 1, 2 & 3 of Section 140 would make it apparent that the claim petition could be maintained under either of the two sections in which case the claimant need not plead or establish negligence. But the words used in Sub-section 3 of Section 140 and Sub-section 2 of Section 163-A namely wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or of any other person are in pari-materia. Therefore, these provisions inherently mean that there is negligence on the part of the rider/driver of the vehicle, who has contributed to the accident and under such circumstances under Section 163-B a claim petition is maintainable either under Section 140 or under Section 163-A of the Act
18. These provisions however, do not include a situation where the claimant himself or the deceased was the rider/driver of the vehicle and has died on account of his own negligence irrespective of whether there is another vehicle or tort feasor involved in the accident. In other words it covers a case where the rider/driver of the vehicle is solely negligent in causing the accident and there is no negligence on the part of any other person though involved in the accident or a situation where there is no other person or vehicle involved in the accident and the accident has occurred due to the wrongful act of the rider/driver of the vehicle. For instance, when a stray animal comes in the way of the vehicle and so as to avoid hitting the said animal and inevitable accident occurs. Under such circumstances the Act provides relief under Sub-section 4 of Section 140 and the compensation can be claimed under Sub-section 1 read with Sub-section 2 of Section 140 of the Act in which event the share of the person responsible for the death or disablement on account of the accident will not come in the way in defeating or reducing the compensation. In other words when a person is solely responsible for the accident and there is no other tort feasor involved or responsible in causing the accident, then the compensation cannot be defeated, as under Sub-section 4 of Section 140 read with Sub-section 1 & 2 relief is provided far the mere use of the vehicle.
19. Therefore, a situation which is covered under Sub-section 4 of Section 140 cannot also be covered under Section 163-A, it is for that purpose both the Section begin with non-obstinate clause and by a harmonious reading of two Sections it can be held that while invoking Sub-section 4 of Section 140 no other tort feasor is involved in the accident and that the rider/driver of the vehicle is solely responsible for causing the accident and based on the principle of strict liability or no fault liability, compensation is awarded to a limited extent even in a case where the claimant himself is a tort feasor. This is an exception to the general doctrine of negligence and hence Sub-clause 4 of Section 140 is an exception to Section 166 of the Act where negligence has to be proved and also Section 163-A of the Act where the negligence cm the part of another tort feasor need not be proved. Therefore, we answer point No. 1 by holding that the claim petition under Section 166 of the Act was not maintainable in the instant case in as much as the accident occurred on account of the own negligence of the deceased himself.
20. In the case of Appaji (since deceased) and Anr. v. M. Krishna and Anr. reported in , a Division Bench of this Court has held that Section 163-A of Act was never intended to provide relief to those who suffered in road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The non-obstinate clause in Section 163-A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident The claimant under Section 163-A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part That does not, however, mean that the claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the.
21. In this case the deceased was riding a scooter on his way from Maddur to Malavalli. When he met with an accident resulting in his death there was no other vehicle involved and neither was there any other tort feasor involved in the accident.
22. Subsequent to this decision is the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni and Ors. v. United Insurance Company Limited, Baroda reported in : AIR2004SC2107 which is a decision rendered by a larger Bench on a reference by a Bench of two Judges doubting the correctness of the earlier decision in Oriental Insurance Company limited v. Hansrajbhai Kodak reported in 2001(1) SCC 175. In the said decision it has been held that Section 163-A 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. The ratio of this decision in our view applies to a case where the injured/claimant or the deceased as well as any other tort feasor or tort feasors may have jointly contributed to the accident and in such an event the injured/claimant or the deceased tort feasor need not plead or prove negligence of the other tort feasor and can claim compensation from the wrongful person.
23. However, the decision of the Division Bench of this Court in Appaji's case is applicable to a situation where there is no other tort feasor and that the injured/claimant or the deceased was solely responsible in causing the accident Though the Hon'ble Supreme Court has opined that Section 163-A of the Act covers case where even negligence is on the part of the victim and is by way of exception to Section 166 of the Act, the said enunciation has to be made applicable to a case where the victim is negligent along with other tort feasor who has also contributed to the accident But in a case where the injured claimant or the deceased alone is the cause of the accident and there is no other person involved as in the instant case, then in that event Appaji's case becomes applicable and the injured/claimant or the legal representatives of the deceased would be entitled to compensation under Section 140 of the Act on no fault basis and their claim under Section 163-A of the Act is not maintainable as held in the said decision of the Division Bench of this Court.
24. The next question is as to whether the Tribunal was right in permitting the conversion of the claim petition to one under Section 163-A of the Act
25. As already stated under Section 166 of the Act, the cause of action arises on the basis that there is a tort feasor who on account of his negligence has caused injury or death and the entire basis of Section 166 is proof of negligence before awarding compensation. Per contra, under Section 163-A of the Act, the claimant need not proved the negligence on the part of any other person and can claim compensation on the basis of the Schedule-II. Therefore, under Section 163-A the basis of the claim petition is not on negligence, but irrespective of negligence on the part of the owner of the vehicle or any other person been proved compensation can be sought Therefore, Section 166 and 163-A are as already stated mutually exclusive and the basis of the proceeding and the decision would be totally different as the cause of action is also on a different footing in as much as negligence has to be proved under Section 166 before compensation is awarded whereas under Section 163-A negligence need not be pleaded or proved on the part of a tort feasor. Hence when a claim petition is filed under Section 166 of the Act, in our view the same cannot be permitted to be converted to one under Section 163-A of the Act as it would amount to change in the basis of cause of action and as such the amendment is not permissible.
26. We are supported in this view by the decision of the Hon'ble Supreme Court in the case of United India Insurance Company v. Anitha and Ors. reported in ILR 2007 Kar 28 wherein the claim petition filed under Section 166 of the Act was later on converted into Section 163-A of the Act and though the Tribunal in the said case recorded a positive finding that the income of the deceased was Rs. 1,20,000/- p.a., it was confined to Rs. 40,000/- p.a so as to bring the case within the ambit of Section 163-A of the Act by the Tribunal The said decision was challenged by the insurance company and this Court held that the procedure followed by the Tribunal was contrary to the law laid down by the Apex Court and that the Tribunal ought to have dismissed the claim petition. Further in the said case it was also urged by the insurance company that the deceased was at fault and the accident took place on account of rash and negligent driving of the Jeep by the driver concerned and therefore, the insurance company could not made liable for the fault of the driver of the vehicle.
27. Further the Division Bench in the said case also referred to the decision of the Apex Court in the case of Deepal Girish Bhai v. United India Insurance Company Limited reported in 2004 ACJ 934 and held that the only persons whose annual income is up to Rs. 40,000/- can take the benefit of Section 163-A of the Act and all other persons are required to be dealt with in terms of Chapter 12 of the Act and therefore, the Tribunal could not have allowed the claim petition under Section 163-A by scaling down the annual income from Rs. 1,20,000/- to Rs. 40,000/- p.a so as to bring the case within the purview of Section 163-A of the Act
28. Hence the Tribunal was not right in permitting the conversion of the claim petition filed under Section 166 of the Act to one under Section 163-A of the Act as the claim petition under Section 166 or Section 163-A was not maintainable.
29. In view of our finding on point No. 2 we held that the Tribunal was not justified in awarding compensation in terms of Schedule-II of the M.V. Act which is to be read as part and parcel of Section 163-A by restricting the annual income of the deceased to Rs. 39,000/- (Rs. 40,000/- being the ceiling under the Schedule-II).
30. In Deepal Girish Bhai's case the Hon'ble Supreme Court opined that if a person invokes the provisions of Section 163-A the annual income of Rs. 40,000/- has to be treated as a Cap and the proceeding under Section 163-A being a social security provision, providing for a distinct scheme only those whose annual income is up to Rs. 40,000/- can take the benefit in terms of Chapter 12 of the Act.
31. The next question that arise for our consideration is as to whether the respondents are entitled to any relief at all?
32. Section 163-B of the Act states that where a person was entitled to claim under Section 140 and under Section 163-A the claim petition can be filed under either of the said sections and not under both. Under proviso to Section 168 where an application is made for compensation under Section 140, the Tribunal has to dispose of the said application under the provisions of Chapter X the question that arises is whether in a claim petition filed under Section 166 relief could be given under the Provisions of Section 140 of the Act Under Section 141 of the Act, it is stated that the right to claim compensation under Section 140 is in addition to any other right, except the right to claim under Section 163-A of the Act Hence if compensation is to be claimed under Section 140, then the said right cannot be defeated by having any other right other than the right under Section 163-A. Hence the claimant who can prove negligence under Section 166 would be entitled to compensation under the said section. But in a situation where there is no negligence on the part of any other person, then the claimant can invoke Clause 4 of Section 140 despite there being negligence on his own part receive compensation under Section 140.
33. The implication being that even in a claim petition filed under Section 166 if the Tribunal conies to a conclusion that the negligence was solely on account of the rider/driver of the motor vehicle, then by moulding the relief, under Sub-section 4 of Section 140 read with Sub-section 1 & 2 thereof grant compensation to the extent mentioned in the said subsection. In other words even in the case where the claimants or the deceased himself was solely negligent in causing the accident, compensation to the extent stated under Section 140 has to be awarded and on the basis of strict liability and no claim petition can be rejected on the ground that the rider of the vehicle or the driver solely contributed to the accident
34. The only circumstances under which a claim petition could be rejected is when the driver or the rider of the vehicle himself, is the insured and there being no other specific coverage of the risk of the insured in the policy the claim petition in such a circumstance could be rejected.
35. Therefore, in view of the feet that the Tribunal could not have permitted amendment of the claim petition filed under Section 166 of the Act to one under Section 163-A of the Act, in the instant case the Tribunal ought to have considered the case as one under Sub-section 4 of Section 140 of the Act and awarded compensation under the said Sub-section to an extent of Rs. 50,000/- only. Therefore, the Tribunal could not have fastened the liability on the insurance company to an extent of Rs. 3,98,000/-. Though Sub-section 1 of Section 140 states that the owner of the vehicle would be liable to pay compensation but by virtue of the Provision of Sub-section 1 of Section 146 the insurance company is liable to indemnify the owner of the vehicle for a liability arising under Section 140.
36. Therefore, this appeal is allowed in part by holding that the appellant insurance company is liable to pay a sum of Rs. 50,000/- with interest at the rate of 6% p.a from the date of claim petition till realization instead of Rs. 3,96,000/- awarded by the Tribunal.