G. Chandraiah, J.
1. Heard both the counsel
2. Aggrieved by the order and decree dated 17.4.1999 passed by the Court of Motor Vehicle Accidents Claims Tribunal, Karimnaqar in O.P. No. 381/1996, the claimants filed the appeal.
3. The case of the claimants in brief is that on 18.11.1994 at about 4 a.m., when the deceased was driving the ambulance beat-inn No. AP-15-A-1279 and when it reached NTPC hospital, due to right wheel burst, the vehicle hit against a tree and as a result the deceased died on the spot. The police concerned have registered a case in Cr. No. 96/94 under Section 174 of Cr.P.C. Claiming that the deceased was aged 42 years as on the date of the accident and that he was drawing a monthly salary of Rs. 5,664/- as driver in NTPC Ramagundam, the claimants who are his wife and children, filed claim petition under Section 163A of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs. 6,43,368/- with interest at the rate of 18 per cent per annum.
4. The owner of the vehicle remained ex parte and the insurance company filed counter and contended that the accident occurred due to rash and negligent driving of the driver of the vehicle and not due to tyre burst and hence the petition under Section 163A of the Act is not maintainable. The age, avocation and income of the deceased are denied and it is stated that the claim is exorbitant. It is further contended that as the income of the claimant is more than Rs. 40,000/-the petition under Section 163A is not maintainable. With these averments inter alia, the claim petition was sought to be dismissed.
5. Based on the above rival pleadings, the Tribunal framed the following issues for trial:
(1) Whether the accident took place due to rash and negligent driving of the vehicle bearing No. AP-15-1279 by its driver?
(2) Whether the vehicle in question got valid insurance with 2nd respondent?
(3) Whether the petitioners are entitled to compensation, and if so, to what amount and from whom?
(4) To what relief?
6. To prove the case of the claimants P. Ws. 1 and 2 were examined and Exs. A-1 to A-6 were got marked and on behalf of the respondent, no evidence either oral or documentary was adduced.
7. The Tribunal held that the accident in this case prima facie would show that it could not have happened without the negligence on the part of the deceased. But however noted that as the claim petition is filed under Section 163A of the Act, the negligence of either party need not be proved. Further holding that as the deceased who is the driver of the vehicle died due to the use of the motor vehicle, he is entitled to claim compensation under Section 140 of the Act and accordingly granted an amount of Rs. 50,000/- and ordered for apportionment and directed to deposit the amount in a nationalized bank for a period of five years. Not being satisfied with the compensation awarded by the Tribunal, the claimants who are the dependants of the deceased, filed the appeal for enhancement.
8. The learned Counsel appearing for the claimants mainly contended that when the claim petition is filed under Section 163A of the Act, where under no negligence need be proved, the Tribunal is not justified in granting compensation under Section 140 of the Act and as the claim petition is filed under Section 163A of the Act, the Tribunal has to award compensation applying the appropriate multiplier under Second Schedule to the said section and just because the income of the deceased exceeds Rs. 40,000/- per annum the application of Second Schedule cannot be denied. In support of this contention, he relied on the judgment of the High Court of Calcutta in Narendera Nath Halder v. New India Assurance Co. Ltd. . For deciding the application under Section 163A of the Act, claimants need not prove rash and negligent driving and in support of this contention, he relied on the judgment of the Division Bench of this Court in Shahazadi Bee v. M.D., APSRTC, Musheerabad, Hyd. : 2003(5)ALD127 . He further contended under Section 163B of the Act option is given either to file claim petition under Section 163A or under Section 140 of the Act and not under both and, therefore, the claimants have filed under Section 163A of the Act. He contended that under Section 163A of the Act, the Tribunal is not required to adjudicate with regard to negligence on the part of the driver who drove the vehicle, while awarding the compensation and it is concerned only whether the accident occurred during the use of motor vehicle. But the Tribunal below erred in recording that the accident occurred due to the negligence of the deceased and the said finding is not warranted. He submitted that in case this Court comes to the conclusion that as the income exceeds the limit prescribed under the second schedule, compensation cannot be granted under Section 163A of the Act, the claimants would like to restrict the income of the deceased to Rs. 40,000/- per annum and in such an event, the claim petition under Section 163-A is absolutely maintainable. In support of this contention, he relied on the Full Bench judgment of the Karnataka High Court in Guruanna Vadi v. General Manager, K.S.R.T.C. : AIR2001Kant275 . He also submitted that since the compensation granted under Section 163A of the Act is final and not interim and as the claimant is left with no option again to claim under Section 166 of the Act and as the compensation granted under Section 140 of the Act is of interim in nature and as the claimants have filed claim petition under Section 163A of the Act, the Tribunal is in error in awarding compensation under Section 140 of the Act. In the alternative he submitted that as per the evidence on record, the deceased died during the course of employment and, therefore, invoking the provisions under Section 4 of the Workmen's Compensation Act, the Tribunal ought to have awarded compensation, since as per Section 167 of the Act, option is given to the claimant either to file claim petition under Motor Vehicles Act or under the Workmen's Compensation Act. Relying on the judgment reported in Samir Chanda v. Managing Director, Assam State Transport Corporation : AIR1999SC136 he submitted that the Apex Court in a petition filed under Sections 92A and 110B of the Motor Vehicles Act, 1939 granted compensation for the victims of the accident which arose out of use of motor vehicle, though there is negligence on the part of the owner or driver of the vehicle. Relying on the judgment reported in K. Matura Bai and Ors. v. A. Shiva Nageswar Rao : 2004(3)ALD658 he submitted that in assessing compensation payable either under Section 163A or under Section 166, the multiplier mentioned in the Second Schedule to the Act has to be followed and only in compelling and proper cases, it can be deviated. With these submissions he sought for setting aside the impugned order and remand the matter to the Tribunal.
9. On the other hand the learned Counsel appearing for the respondent-insurance company submitted that the Tribunal has rightly granted compensation and there are no grounds to interfere. He contended that the income of the deceased as per the case of the claimants is more than Rs. 40,000/- per annum and hence the Second Schedule to Section 163A of the Act cannot be made applicable. He submitted that in the present case the Tribunal has categorically recorded that the accident occurred due to the negligence of the deceased and, therefore, a claim petition under Section 163A of the Act is not maintainable. In support of this contention he relied on the judgment of the Division Bench of the Karnataka High Court in Appaji v. M. Krishna . He contended that even if the insurance company is made liable on the ground that the deceased died during the course of employment, its liability is limited to the one arising under the Workmen's Compensation Act and the rest has to be paid by the owner. In support of this contention he relied on the judgment of the Apex Court in National Insurance Co. Ltd. v. Prembai Patel : (2005)IILLJ1109SC .
10. In view of the above rival contentions, the points that arises for my consideration are:
(1) Whether the Tribunal below is justified in granting compensation under Section 140 of the Act by incidentally recording a finding that the deceased was responsible for the accident, when the claimants filed claim petition under Section 163A of the Act?
(2) Whether the compensation can be granted under Section 163A of the Act, if the deceased or the injured are responsible for the accident? and
(3) Whether the second schedule to Section 163A can be made applicable to the claim petitions under the said section, if the income of the deceased or the injured exceeds Rs. 40,000/-per annum?
11. In order to consider the above issues it is necessary to look into the relevant provisions of Sections 140, 141 and 163A of the Act under Chapters X and XI of the Act. The said provisions are extracted as under for better appreciation:
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 that 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 (1) 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 on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in Sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A.
141. Provisions as to other right to claim compensation for death or permanent disablement:
(1) The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to Section 163A (such other right hereafter) in this section referred to as the right on the principle of fault to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.
(2) A claim for compensation under Section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first - mentioned compensation and-
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
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 authorized 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 in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation:- For the purpose of this sub-section, 'permanent disability' shall have the same meaning and extent as in the Workmen'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.
12. From a perusal of Section 140 of the Act under Chapter X which deal with liability without fault in certain cases, it is clear that if any death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall or as the case may be, the owners of the vehicles shall, be liable to pay compensation at the rate of Rs. 50,0007/- if it is a case of death and Rs. 25,000/- in case of permanent disablement, without the claimant being required to plead and establish the wrongful act or negligence or default of the owner or owners of the vehicles concerned or of any other person and the claim under this provision shall not be defeated even if there is wrongful act, negligence or default of the person in respect of whose death or permanent disablement the claim has been made and further the payment, under the provision will not absolve the liability of the owner of the vehicle, if he is liable to pay compensation under any other law for the time being in force, of course the amount paid under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A of the Act. Further under Section 141 it is clear that the amount paid under Section 140 shall be in addition to any other right of compensation under this Act i.e., fault liability or of any other law for the time being in force, except the right to claim under the scheme referred to in Section 163A of the Act. Further in the application filed under Section 140 of the Act, no wrongful act, negligence or default of either the deceased and injured or the driver of the other vehicle need be proved and even if there is negligence of the deceased or the injured, the claim shall not be defeated and the only paramount consideration under this section is that such death or permanent disablement of any person must have resulted from an accident arising out of the use of the motor vehicle. Therefore, it is clear that the amount paid under Section 140 is in the nature of interim relief, since at that stage, no negligence of either party need to be proved and the amount is fixed and the relief claimed is in addition to any other claim under this Act, except the claim made under Section 163A or under any other law for the time being in force.
13. Coming to Section 163A of the Act under the Chapter XI which deals with insurance of motor vehicles against third party risks, it could be seen that Section 163 deals with cases of payment of compensation in case of hit and run motor vehicles and under Section 163A, payment of compensation is on a structured formula basis. The provision under this section starts with a non-obstante clause, stating that notwithstanding anything in this Act or in any other law for the time being in force, the owner of the motor vehicle or the authorized insurer shall be liable to pay in case of death or permanent disablement due to the accident arising out of the use of motor vehicle, compensation as indicated in the second schedule to the legal heirs or the victim as the case may be, for which the claimant need not 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. It is to be conspicuously noted that unlike the provision under Section 141 of the Act, there is no provision under Chapter XI which postulates that the payment of compensation under Section 163A is in addition to any other right to receive compensation under this Act or under any other law for the time being in force and the only limitation prescribed under this section for payment of compensation is that it shall be on a structured formula basis. Therefore it is clear that the payment of compensation under Section 163A is not of interim nature, but is a final settlement. Further under Section 140(4) of the Act, the claim shall not be defeated even if the deceased or the injured is at fault. No such specific provision is provided under Section 163A of the Act and the only requirement is that the claimants need not prove the wrongful act or neglect of the owner of the vehicles. Therefore the question that lingers is that if the deceased or the injured in the accident out of the use of motor vehicle is at fault, will the claimants or the injured himself be able to claim compensation under Section 163A of the Act? The High Court of Karnataka in the decision reported in Appaji v. M. Krishna (6 supra) answered the question in the negative. But however, the Apex Court in the decision reported in Deepal Girishbai Soni v. United India Insurance Co. Ltd. 2004 (5) ALT 11 (SC) held at paragraph No. 66 that'....Section 163A 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 that concept of social justice has been duly taken care'. Therefore, the judgment of Karnataka High Court (6 supra) cannot be followed in view of the ruling of the Apex Court. The Apex Court in the above decision has considered the scope of Sections 140 and 163A of the Act. The relevant portions of the judgment are extracted as under for better appreciation:
41. Section 140 of the Act dealt with interim compensation but by inserting Section 163A, Parliament intended to provide for the making of an award consisting of a predetermined 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 victim falling with 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.
42. Section 163A, thus enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/-having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of motor vehicles.
48... By reason of Section 163A, therefore, the compensation is required to be determined on the basis of a structured formula whereas in terms of Section 140 only a fixed amount is to be given. A provision of law providing for compensation is presumed to be final in nature unless acontra-indication therefor is found to be in the statute either expressly or by necessary implication. While granting compensation, the Tribunal is required to adjudicate upon the disputed question as regards age and income of the deceased or the victim, as the case may be. Unlike Section 140 of the Act, adjudication on several issues arising between the parties is necessary in a proceeding under Section 163A of the Act.
14. From the above it is clear that the compensation payable under Section 163A is final in nature and the compensation payable under Section 140 is interim in nature and under both the provisions the claimants who are the dependants of the deceased or the victim need not prove the wrongful act, negligence or default of the driver of the other vehicle involved in the accident and similarly the claim cannot be defeated under both the provisions because of the wrongful act, negligence or the default of the deceased or the victim as the case may be. Further as per Section 141 of the Act the compensation payable under Section 140 is in addition to any other amount payable under the Act or under any other law in force and the amount paid under Section 140 has to be adjusted and no such provision is provided to Section 163A of the Act. The other important difference between Sections 163A and 140 of the Act is that under the latter only a fixed amount is payable and in respect of former the amount is payable under a structured formula basis which prescribed 'the upper income limit of Rs. 40,000/- per annum. Therefore, if the income of the deceased or the victim exceeds Rs. 40,000/- per annum, he will not be in a position to file claim petition under Section 163A of the Act. Hence the issue No.3 framed above is answered in the negative.
15. The Full Bench of the Karnataka High Court in the decision reported in Guruanna Vadi v. General Manager, K.S.R. T.C. (3 supra) held at paragraph No. 33 that the claim under Section 163A is not tenable where income of victim is/was more than Rs. 40,000/-perannum. However, if person notionally brings down his income to Rs. 40,000/-, the claim can be permitted under Section 163A of the Act. The relevant portion is extracted as under:. The Second Schedule limits the operation of the section to a limited class of persons whose income is Rs. 40,000/- or less per annum. The prescription of the outer limit of Rs. 40,000/- under the Schedule does not take away the right of the person to claim compensation under any other provisions of the Act....But in case the person with the higher income notionally brings down his income to Rs. 40,000/- in order to present his claim under Section 163A, the same can be permitted.
16. Therefore, it is clear that even if the person with high income notionally brings down his income to Rs. 40,000/-, his claim petition under Section 163A can be entertained.
17. Now the next question that arises for consideration is whether the Tribunal below is justified in awarding compensation under Section 140 of the Act when the application is made under Section 163A of the Act? The differences between Sections 140 and 163A has already been discussed above. Under both the sections, as per the judgment of the Apex Court and as per the provisions contained in the section, even if the deceased or the victim is at fault, the victim or the dependants of the deceased are entitled to claim petition and the only difference is that the compensation granted under Section 140 of the Act is in the nature of interim relief and the compensation under Section 163A of the Act is full and final settlement and under Section 140 of the Act only fixed amount is payable, as the payment under this section is in addition to any other claims under this Act or any other Act and the amount paid under Section 140 has to be adjusted. Further for granting compensation under Section 140, the Tribunal need not consider the age, income and other attendant circumstances. But claim petition under Section 163A has to be adjudicated based on age, income and other attendant circumstances following the structured formula provided under Second Schedule by applying multiplier method and the only limitation is, the annual income shall not exceed Rs. 40,000/- per month (sic. annum) and as per the above excerpts of the judgment of the Apex Court the provision under Section 163A of the Act is provided to grant adequate compensation to a section of victims (would require the amount of compensation) without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of the use of motor vehicle and the object of claim petition under Section 163-A of the Act has been aptly dealt with by the Apex Court in the above extracted portions of the judgment. However, the Apex Court at paragraph No. 66 held that Section 163A 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.
18. It is alleged that the deceased who is a driver of ambulance hit the tree due to tyre burst and as a result he died and his salary is claimed at Rs. 5,664/-. The insurance company contended that the accident occurred due to rash and negligent driving of the deceased. The Tribunal recorded that the accident occurred due to rash and negligent driving of the driver, the deceased. Since this is an application made under Section 163A of the Act and in view of the judgment of the Apex Court, the finding of the Tribunal will not in any way affect the case of the claimants. Since the accident occurred out of the use of the motor vehicle and the claimants filed claim petition under Section 163A of the Act giving the necessary particulars and the amount of compensation sought is full and final settlement and is not of interim nature and in the present peculiar facts and circumstances, where the deceased hit the tree, and as per the instructions of the clients, the counsel for the claimants submitted that the income of the deceased is being restricted to Rs. 40,000/-, I feel it appropriate to remit the matter back to the Tribunal for considering the claim of the claimants under Section 163A of the Act. Therefore the impugned judgment is set aside and the issue Nos. 1 and 2 framed are answered in favour of the claimants.
19. Further it is not in dispute that the accident occurred during the course of employment. Therefore, the Tribunal shall consider the nature of the policy and the applicability of the judgment of the Apex Court in National Insurance Co. Ltd. v. Prembai Patel (7 supra) to the present facts and circumstances and decide the liability of the respective parties.
20. For the foregoing reasons, the impugned order is set aside and the matter is remitted back for adjudicating the claim of the claimants under Section 163A of the Act. The appeal is accordingly disposed of. No costs.