National Insurance Co Ltd. Vs. Kulwanti Kaur - Court Judgment

Devi Prasad Singh, J.

1. WE have heard Sri Ashish Kumar Srivastava, learned counsel for the appellant, Sri Rajendra Jaiswal, and Shri Shashank Singh, learned counsel for the respondents and perused the record. The instant appeal under Section 173 of the Motor Vehicle Act (hereinafter referred to as the Act) has been preferred against the impugned award dated 31.1.2004 passed in Motor Accident Claim Petition No. 135 of 1999 by Motor Accident Claims Tribunal/Additional District Judge, Kheri.

2. DECEASED Kashmir Singh was a truck driver bearing no. UP 65- H/0691. On 3.6.1999 he was coming from Madhya Pradesh after loading iron. When he reached near town Kablapur, stopped the truck and came down from the truck and was checking the tyre after parking on roadside. An unknown vehicle came in a rash and negligent way and collided with deceased Kashmir Singh, who succumbed to the injuries at the spot on 13.6.1999 at 3.45 pm near Kablapur. An FIR was lodged and dependent of the deceased approached the tribunal. It appears that the claim petition was filed under Section 166 of the Motor Vehicles Act, but later on it was amended and by order dated 11.9.2003 passed by the Court, petition was converted to Section 163-A of the Act.

Before the tribunal, the claimant-respondents recorded the statement of PW 1 Kulwant Kaur and PW 2 Amarjit Singh, who is the eye witness and stated that he was driving truck number D.L.I G.A. 6527 from Ramgarh to Kotdwar with iron loaded truck. His truck was going ahead from the truck which was being driven by Kashmir Singh. He stopped the truck at the Dhaba and saw that when Kashmir Singh was checking the tyres of his truck an unknown vehicle came from back side and hit Kashmir Singh. Keeping in view the statement given by the eye witnesses and other material on record, the tribunal recorded a finding that the deceased succumbed to the injuries on the aforesaid date and time while he was discharging his obligation as employee of the truck owner. From defendants' side no evidence was led. The tribunal awarded compensation to the tune of Rs. 2,97,500/- alongwith interest at the rate of 6% assessing the income of deceased as 2,400/- per month.

Learned counsel for the appellant relied upon the case reported in 2005 (1) T.A.C. 220 (All.): U.P. State Road Treansport Corporation Vs. Ram Ajore Maurya, which deals with the situation, where the liability has been fastened by the Tribunal against the U.P.S.R.T.C., and their lordships held that in the event of negligent of the owner of the offended motor vehicle, the compensation may not be fastened on the U.P.S.R.T.C. But it should be claimed from the owner of the vehicle. However, the case of Ram Ajore (supra) deals with different provisions of the Act and the Apex Court seems to have not considered provisions relevant for this case and the judgment also does not seem to applicable in the present facts and circumstances of the present case.

3. ON the other hand, Sri Shashank Singh, learned counsel appearing for the claimant respondents, relied upon the cases reported in (2011) 2 SCC 416: New India Assurance Company Limited Vs. Yadu Sambhaji More and others; 2000 ACJ 801 (SC): Smt. Rita Devi and others. Vs. New India Assurance Co. Ltd. and another; 2010 ACJ 74 (All): National Insurance Co. Vs. Shimla and others; 2010 ACJ 784: National Insurance Co. Ltd. Vs. Gitaben Saitansingh Rajput and others; 2009 ACJ 1518: Ravanna and others. Vs. Pitambar Lal Sao and others; 2008 ACJ 1624 (All): Manjula Devi Mishra and others. Vs. Commercial Motors and others; 2006 ACJ 528 (SC): National Insurance Co. Vs. Mastan and another; 2004 ACJ 971 (All): Oriental Insurance Co. Ltd. Vs. Shibhu Bai and others; 2001 ACJ 428 (SC): Kaushnuma Begum and Others.Vs.New India Assurance, and 1987 ACJ 561 (SC): Gujarat State Road Transport Corp. Vs. Ramanbhai Prabhatbhai.

Learned counsel for the appellant initially tried to assail the impugned order on the ground that the claim petition was filed under Section 166 of the Act, hence no compensation could have been awarded to the dependent of the deceased. From the original record, it is borne out that the claim petition was filed under Section 163-A of the Act. Section 163-A of the Motor Vehicles Act is repro324 - 360 - Video Illusions · Dali Illusionduced as under:-

"163-A. Special provisions as to payment of compensation on structured formula basis-

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out 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 purposes 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.”

4. A plain reading of Section 163-A of the Act shows that the legislature to their wisdom had provided exception with regard to award of compensation on the ground contained therein notwithstanding anything contained in the Act or any other law for the time being in force or instrument having the force of law. All the three words, namely, notwithstanding anything contained in the Act or in any other law for the time being in force or the instrument having force of law deals different subjects. According to Black Law Dictionary, Ninth Edition, the word "Notwithstanding" has been defined as under:-

"Notwithstanding, prep (15 c) Despite; in spite of notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults. The Hon'ble Supreme Court in the case reported in AIR 1951 Supreme Court 115 Rai Brij Raj Krishna and another vs. M/s S.K.Shaw and brothers held that the expression prevents reliance on any other law to the contrary. To quote relevant portion:- "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building, he shall not be liable to be evicted there-from, whether in execution of a decree or otherwise, except- (a) in the case of a month to month tenant, for non- payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee,on his ceasing to be in such employment." In Law Lexicon by Justice Y.V. Chandrachud, the definition of Notwithstanding has been given as under:-

Notwithstanding "anything in this act to the contrary notwithstanding." This phrase is equivalent to saying that the Act shall be no impediment to the measure (Dwar, 683, citing Chenie's Cas; Cecil's case, 7 Rep 20) Notwithstanding anything contained in S. 25. The words "Notwithstanding anything contained in S. 25" only mean that S. 25 shall be no impediment to the non-existence of the jurisdiction. Gokuldas v. Mohan Kunwar Bai, AIR 1953 Madh. Bharat 217, 220 [Madhya Bharat High Court Act (8 of 1949) S. 25-A].

Notwithstanding clause. A clause to prevail over other clauses. The other word used in the Section is 'instrument' having the force of law. The insurance policy or statutory agreement entered into between the parties with regard to any arrangement contained in the instrument having force of law (Insurance policy and other alike agreement) will not come into the way to award compensation in pursuance to Provision contained in Section 163-A of the Act. Much emphasis has been laid by the appellants for the insurance policy over Section 147 of the Act but that too seems to be misconceived. Section 147 shall not be attracted in a case where a claim petition is filed under Section 163-A of the Act. Section 147 of the Act deals with the insurance policy which is issued by a person who is an authorised insurer. The policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insurer by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) with regard to death or bodily injury to any person engaged in driving the vehicle and so on.

The question cropped up whether the insurance policy may be relied upon against the statutory spirit and the terms and conditions of the insurance policy may be taken into account to deprive the driver of the vehicle to receive compensation? A combined reading of Sections 147 and 163-A of the Act reveals that on the ground of insurance policy a person who suffered injury or death because of use of vehicle may not be deprived from compensation . The three conditions provided in Section 163-A of the Act (supra) includes the instrument having force of law. Undoubtedly, the insurance policy has got force of law being statutory agreement between the parties. Insurance policy being an instrument shall not come in the way to award compensation under Section 163-A of the Act. In Black Law Dictionary, Ninth Edition, the word 'instrument' has been defined as under:-

"Instrument- A written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate. Also termed legal instrument. "An 'instrument' seems to embrace contracts, deeds, statutes, wills, Orders in Council, orders, warrants, scheme, letters patent, rules, regulations, by-laws, whether in writing or in print, or partly in both, in fact, any written or printed document that may have to be interpreted by the Courts," Edward Beal, Cardinal Rules of Legal interpretation 55 (A.E. Randall ed. 3d ed 1924). Under Section 2 (14) of the Stamp Act, 1899 as well as under Section 2 (b) of the Notaries Act, 1952 the word 'instrument' has been defined. According to it, every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded. The Supreme Court in the case reported in AIR 1964 SC 173 Mohan Choudhury vs. Chief Commission, the word 'instrument' has been defined as under:-

"The expression is used to signify a deed inter partes or a character or a record or other writing of a formal nature. But in the context of the General Clauses Act it has to be understood as including reference to a formal legal writing like an order made under a statute or subordinate legislation or any document of a formal character made under constitutional or statutory authority. 'Instrument' includes an order made by the President in the exercise of his constitutional power. In a case reported in AIR 1968 SC 102, their Lordships held that the instrument does not include Acts of Parliament unless there is a statutory definition to that effect in any Act. In AIR 1962 SC 1230 Haji Sk. Subhan vs. Madhorao, Hon'ble Supreme Court held that 'instrument' includes every document by which any right or liability is created or transferred.

The word 'instrument' used in Section 163-A of the Act includes insurance policy and compensation may be awarded to the victim despite the contrary terms and conditions contained in the insurance policy. For payment of compensation under Section 163-A of the Act, it is not necessary that the vehicle should be insured. However, in case vehicle is insured, then the compensation shall be paid by the insurance company but in case it is not insured, then it shall be paid by owner of the vehicle. The legislature to their wisdom had consciously used the word "owner of the vehicle", "the authorized insurer" and "has been used" and the words are in disjunction, means the authorized insurer shall be liable to pay compensation in case the vehicle is insured and accident occurred causing death or injury because of use of motor vehicles. Section 147 of the Act shall not come into the way to exercise power under Section 163-A of the Act for payment of compensation to the victim. Moreover, it is trite in law that there cannot be an agreement in violation of statutory provisions.

5. FROM the plain reading of Section 163-A of the Act, it is evident that the compensation may be awarded to a person, who suffered injuries or succumbed to the injuries on account of use of motor vehicle. The owner of the vehicle or the authorized insurer shall be liable to pay compensation in case of death or permanent disablement due to accident arising out of the use of motor vehicle in terms of Second Schedule of the Act to a legal heirs or victim, as the case may be. Thus, under Section 163-A of the Act, compensation is to be paid on the basis of structured formula provided in the Second Schedule of the Act. It requires to be proved by claimants that the accident has occurred and the injury is caused because of use of motor vehicle, which seems to be proved amply by the claimant-respondents. The appellant-defendant had not led any evidence before the tribunal to establish that the accident has occurred otherwise than because of use of motor vehicle. The legislature to their wisdom has used the word 'arising out of use of motor vehicle' hence the only evidence which requires to be proved is the 'use of vehicle by the victim'. The appellant-defendant had neither led any evidence to rebut the submission of claimant-respondents nor invited attention to any material on record, which may establish that the deceased succumbed injuries other than the use of vehicle.

6. THE provision contained in sub-Section 1 of Section 163-A of the Act is an independent provision and is not affected by the spirit of Sections 140 and 166 of the Act. Section 163-A of the Act specifically provides that notwithstanding anything contained in the 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 compensation. Under sub- Section (2) of Section 163-A of the Act, when a claim petition is filed under sub-Section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which claim has been made, was due to any wrongful act, neglect or default of the owner or owners of the vehicles. The Legislature to their wisdom has specifically provided that the involvement of motor vehicle or vehicles shall not exonerate the insurer or vehicle owner which was being used by the victim during the course of accident.

In the case reported in 1987 ACJ 561 (SC) Gujrat State Road Transport Corp. vs. Ramanbhai Prabhatbhai, the Supreme Court considered the provision contained in the old Motor Vehicle Act and held that the scheme and object of the Act intend a wider meaning and dependent of the deceased, even if, not direct relative, living together, may claim compensation. In the case reported in 2001 ACJ 428 (SC) Kaushnuma Begum and others vs. New India Assurance, the Supreme Court had allowed the interest at the rate of 9% per annum from the date of claim petition preferred by the dependent of deceased. It has further been held by Supreme Court that the structured formula can be adopted for safe guidance in computation of compensation in a claim which had arisen out of an accident occurred much prior to the incorporation of Section 163-A of the Act in the statute. The Supreme Court also held that even apart from Section 140 of the Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a tribunal unless any one of the exceptions would apply.

In the case reported in 2004 ACJ 971 (All) Oriental Insurance Co. Ltd. Vs. Shibhu Bai and others, Supreme Court awarded compensation where the accident took place during use of bus and awarded compensation to the passengers of a bus. The accident took place during use of bus and due to negligent driving of the driver since the bus was the proximate cause of death of the deceased. In the case reported in 2006 ACJ 528 (SC) National Insurance Co. vs. Mastan and another, their Lordships affirmed the aforesaid proposition of law and awarded compensation. It has been held by the Supreme Court that the Forum chosen at the time of initial stage may not be changed at a later stage. In the case reported in 2008 ACJ 1624 (All) Manjula Devi Mishra and others vs. Commercial Motors and others, Division Bench of this Court held that the claim for compensation is maintainable against persons or agencies which are held to be related by composite negligence or joint tort-feaso or found to be solely responsible for causing accident if arisen out of the use of motor vehicle. The Division Bench held that the provision contained in Section 163-A of the Act may be made applicable retrospectively and shall apply to pending cases. Relying upon the various judgements of Supreme Court, it is held that it is for the claimant to choose remedy either under Section 163-A of the Act or 166 of the Act and once the compensation has been awarded under Section 163-A of the Act, it becomes final. The Division Bench summarised the law on the point as under:-

"Para 25:- Now before applying the law enunciated hereinbefore in the facts and circumstances of the case in question, we would like to extract the findings recorded by Motor Vehicle Claims Tribunal on the issue of jurisdiction and entitlement of relief claimed in the claim petition as under:-

"In the instant case a cursory glance at the evidence produced by the petitioners themselves show that this accident was a result of the pelting or the stones by unruly boys. These boys got infuriated on account of refusal on the part of driver to stop the vehicle at their indication and they indulged in stone pelting which damaged glasses and as a result of this fact driver lost balance and vehicle fell into the ditch 0.60"and eventually dashed against a Babool tree. These facts show that this act is wholly attributable to outside agency and that the driver of the vehicle was neither rash nor negligent in driving the vehicle. Thus in such cases no relief could be given to the claimants." The Division Bench referred the relevant portion of the judgment of Apex Court in para 10 which is as under:-

Para 10:- Dismissing the S.L.P. with cost Hon'ble Apex Court has held in para 26,27,36 and 37 of the decision as under:

"26. These decision indicate that the word "use", in the context of motor vehicles, has been construed in a wider sense to include the period when the vehicle is not moving and is stationary, being either parked on the road and when it is not in a position to move due to some breakdown or mechanical defect. Relying on the abovementioned decisions, the appellate bench of the High Court has held that the expression "use of a motor vehicle" in Section 92- A covers accidents which occur both when the vehicle is in motion and when it is stationary. With reference to the facts of the present case the learned Judges have observed that the tanker in question while proceeding along National Highway 4 (i.e. while in use) after colliding with a motor lorry was lying on the side and that it cannot be claimed that after the collision the use of the tanker had ceased only because it was disabled. We are in agreement with the said approach of the High Court. In our opinion, the word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck.

27. The only other question which remains to be considered is whether the explosion and fire which caused injuries to the deceased son of the respondent can be said to have taken place due to an accident arising out of the use of a motor vehicle viz. the petrol tanker.........

36. This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96 (2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.

37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461."

7. RELYING upon one other judgment reported in 2000 ACJ 801 (SC) Rita Devi' case, the Division Bench reiterated the settled law that the compensation may be awarded in case of accident occurred during the use of motor vehicle and finally incapsuled the law on the point which is as under:-

Para 21:- "Thus the aforesaid discussion leads towards a further inescapable conclusion that it would be sufficient to plead and prove that the accident is incidental to the use of motor vehicle. The jurisdiction of Tribunal is not restricted to decide the claim arising out of negligence alone in the use of motor vehicle. The negligence is only one of the species of causes of action for making a claim for compensation in respect of accident arising out of use of motor vehicles. If the pleading and proof of negligence would have been essential condition precedent for exercise of jurisdiction of claims Tribunal instead of using the expression "arising out of use of motor vehicles", different words and phraseology would have been appropriately used and employed under Section 165(1) of the Motor Vehicle Act so as to include the negligence in use of motor vehicle instead of employing the expression "arising out of use of motor vehicle" simpliciter. Therefore, in our considered opinion, the jurisdiction of tribunal should not be restricted to entertain and decide the claims arising out of negligence alone in use of motor vehicle. Restricting the claim for compensation and jurisdiction of tribunal to decide such claims arising out of negligence alone in the use of motor vehicle would be carvation of a proviso under Section 165(1) of the Motor Vehicle Act to exclude the jurisdiction of claims tribunal for awarding compensation in respect of such category of cases where the death or bodily injury is caused in the accident arising out of use of motor vehicle but without negligence in use of such motor vehicle and where the accidents are caused due to the use of motor vehicle but outside agency is found to be solely responsible for such accident, the use of which Legislature has deliberately omitted while enacting the provisions of Section 165 of Motor Vehicle Act.

In the case reported in 2009 ACJ 1518 Ravanna and others vs. Pitambar Lal Sao and others, a Division Bench of High Court of Chhattisgarh has followed the aforesaid proposition of law. In 2010 ACJ 784 National Insurance Co. Ltd. vs. Gitaben Saitansinh Rajput and others, Gujrat High Court has followed the division bench judgment of this court in the case of Manjula Devi (supra) and the Apex Court judgment in the case of Rita Devi (supra). The law on the subject has further been reiterated by the Supreme Court in the case reported in 2010 ACJ 74 (All) National Insurance Co. vs. Shimla and others.

8. IN the case reported in Kaushnuma Begum (supra) their lordships held that compensation on account of accident arising from the use of motor can be claimed under the common law even without the aid of a statute, to quote relevant portion from the judgment:-

"19. ...Compensation on account of accident arising from the use of motor vehicle can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them."

In one another recent judgment referred to by the learned counsel for the claimant respondent i.e., Yadu Sambhaji (supra), Hon'ble Supreme Court reiterated the aforesaid proposition that where death caused due to use of motor vehicle, the compensation may be awarded under Section 166 or 163-A of Motor Vehicles Act, upholding the decision of the High Court, dismissed the appeal. Hon;ble Supreme Court relied upon its earlier judgment reported in (1991) 3 SCC 530: Shivaji Dayanu Patil Vs. Vatschala Uttam More. In the present case, deceased suffered because of use of motor vehicle (truck).

In view of above, since admittedly the accident occurred when driver Kashmir Singh was on duty and came down from the truck to check the tyres, succumbed to injuries the claimant shall be entitled for compensation under Section 163-A of the Act. The tribunal has rightly awarded compensation after appreciating the evidence on record. Moreover, the factum of accident has not been disputed by the appellant's counsel during the course of argument. Keeping in view the fact that the appellant had not led any evidence before the tribunal during the course of trial, and subject to observation made hereinabove, the appeal being devoid of merit, is hereby dismissed. The amount deposited in this Court be remitted to the tribunal within one month by the Registry. The appellant shall deposit the entire amount alongwith interest within three months from today. In case the amount is already deposited, the tribunal shall release the same in terms of award to the claimants within two weeks from the date of production of certified copy of this order. No order as to costs.