Champa Bai and Others vs Gopal Bude and Others

Goutam Bhaduri, J.�This is an appeal by the claimants against the award dated 20.3.2006 passed by the Court of 10th Addl. Claims Tribunal (FTC), Raipur, in Claim Case No. 64/2005. Along-with this appeal, cross objection has also been preferred by the insurer. Initially against the award dated 20.3.2006, an appeal was preferred by the claimants on 17.8.2006, which is a subject of record. The brief facts of the case are that the claimants were dependents of the deceased. The claim was preferred by the wife and two sons before the Claims Tribunal. In such claim petition, it was pleaded that on 13.3.2005 at about 8.45 p.m., Respondent No. 1 Gopal Budhe drove the truck bearing M.H. No. 3 MP/7048 in rash and negligent manner and dashed the deceased who was a rickshaw puller near Mahdeo Ghat. Subsequently because of such impact, the deceased was admitted to hospital wherein he died on 29.3.2005. It was also pleaded that at the time of accident, the truck was being driven by Gopal Budhe and M/s. S.S. Logistic Private Limited was the owner of the vehicle. It was also stated in the claim petition that at the time of incident, the deceased was aged about 35 years, he was a rickshaw puller and used to earn Rs. 3000/- per month. It was also stated that because of such death, the loss of dependency was caused and on various heads, the amount of Rs. 4,70,000/- was claimed.

The petition was filed under the special provisions of Section 163-A of the M.V. Act. The learned Tribunal after evaluating the evidence and document on record has passed an award of Rs. 1,87,000/- with interest @ 6% per annum, in favour of the claimants and it was ordered that the amount should be paid by the Insurance Company and thereafter, liberty was given to recover the same from the owner and driver of the offending vehicle.

Learned counsel for the appellant would submit that the learned Tribunal has misdirected itself while deciding the claim petition as it has failed to take into note that the petition was u/s. 163-A of the M.V. Act. Learned counsel further submits that the provisions of Section 163-A and 166 are completely on different footing as section 163-A provides for special provisions for payment of compensation on structured formula basis. He further submits that the learned court below has misdirected itself to calculate the structured formula and thereby wrong award is made. Learned counsel for the appellants would also submit that the cross objection preferred by the insurance company is completely misconceived as it deliberately did not file the same at earlier point of time but in order to drive the claimants to a corner, these tactics have been adopted. On the whole, the counsel prays for suitable enhancement of the compensation.

Learned counsel appearing on behalf of the Insurance Company opposes the same. He would submit that in this case no licence was held by the driver of the offending vehicle. He further submits that the cross objection has also been filed in this case. Therefore, according to the finding itself, the insurance company be exonerated from the liability of payment of compensation as wrong award has been made by the tribunal that initially it is to be paid by the insurance Company and the right has been given to recover the same from the driver and owner of the vehicle.

I have heard learned counsel for the parties at length and perused the record.

First of all, the cross objection filed by the Insurance Company is considered. A perusal of the records reveals that initially the appeal was preferred by the claimants in the year 2006, which was delayed by 6th days. The initial appeal filed by the claimants was taken up on 5.10.2006 for hearing wherein the Court had ordered for issuance of notice. Subsequently as submitted by the parties the PF was paid on 07.10.2006 and the notices were issued and on 13.11.2006 the power on behalf of the insurance company was filed. Subsequently the appeal came up for hearing on 19.11.2009 wherein the insurance company was also represented and the court after hearing the application for condonation of delay allowed the same and the delay in filing the appeal by the claimants was condoned. Further on due consideration, the appeal was also admitted for hearing. Thereafter, the notice of appeal was issued to the owner and the driver of the vehicle as the insurer was already represented. Thereafter, the case again was listed on 18.2.2010 wherein the insurance company again was represented by its counsel and fresh notices were issued to the owner and driver. The matter then cam up for hearing on 08.4.2010 wherein the insurance company was also represented. Subsequently, again the matter came up for hearing on 07.5.2010 wherein the insurer was represented through their counsel. Significantly, in between the period from 2006 and 2010, no cross objection was filed by the Insurance Company.

Thereafter, on 03.06.2010, the counsel for the appellants/claimants pleaded no instructions before the Court, therefore, the appeal was dismissed for want of prosecution. On such date, the counsel for the appellants and counsel for the insurance company represented the parties before the Court. Subsequently, an application for setting aside of the order of dismissal was filed by the claimants which came up for hearing on 16.12.2013. On the last date, the Court heard the parties including the Advocate for the claimants as also Advocate for the respondent insurance company and after hearing them, the MCC which was filed to restore the appeal was allowed. By such effect of restoration, the original M.A. (Miscellaneous Appeal) being M.A(C). No. 236/2006 was restored to its original number.

After such restoration, again the matter came up for hearing on 28.1.2014 wherein no representation was made on behalf of the insurance company. Thereafter, the matter again came up for hearing on 7.4.2014. On such date, the matter was fixed for orders on grant of exemption from payment of Process Fee in respect of respondents 1 & 2. This application was filed by the claimants. On such date, the Insurance Company was represented by its counsel and the application for exemption was vehemently opposed by the Insurance Company. Thereafter the case was directed to be listed in the week commencing 24th March, 2014. In the meanwhile, cross objections was filed by the Insurance Company for the first time after their appearance in the year 2009 the cross objection was also accompanied by an application u/s. 5 of the Limitation Act whereby the prayer was made to condone the delay of 1814 days i.e., 4 years and 9 months. The case thereafter came up for hearing on 24.3.2014 and on the request of counsel for the Insurance Company, the case was directed to be listed after six weeks.

I have gone through the contents of the cross objection as also the reasons assigned in the application u/s. 5 of the Limitation Act. Reading of such application which is supported by an affidavit appears to have been moved with all casual approach. The reasons stated in the application is that due to bona fide mistake the delay has occasioned and therefore, the delay of 1814 days may be condoned. Therefore, in order to test the veracity of the statement of bona fide mistake, a perusal of the order sheets becomes relevant. The order sheet would reflect that the insurance company had entered their appearance in the month of November, 2009 and after hearing, the appeal was admitted. Thereafter, the appeal was again listed in the month of Feb. 2010, thereafter in April 2010, thereafter in May 2010 and eventually the appeal was dismissed. However the appeal was again restored on 30.06.2010 wherein also the Insurance Company was represented. After the appeal was restored, it was again listed for hearing in the month of January, 2014 and on 07.2.2014, the insurance Company was also represented. Subsequently, the matter again came up for hearing on 23.04.2014 and in the meanwhile, the cross objection was moved on 25.2.2014. Therefore, the submission which is made to condone the delay in filing the cross objection by the insurance company prima facie appears to be lack of bona fide and the averments have been made in a casual manner. The affidavit has been filed without explaining each day''s delay how it happened.

The facts which are evidence that when the Insurance Company was represented earlier, in the year 2009 itself, after the admission of me appeal, it was within their knowledge that appeal filed by the claimants is pending. The Insurance Company was represented through counsel on each occasion as and when the matter came up for hearing. However, no cross objection was preferred within statutory time. However, after a delay of 4 years and 9 months approximately, the insurance Company came out of its slumber and moved this cross objection with a purported reason that because of bona-fide mistake, delay was caused. Considering the totality of the facts that the insurance company was represented for almost 3 years before the Court, but no such cross objection was filed, therefore, by mere use of word that bona-fide mistake had occurred to file the application, it may not within the purview of bona fide mistake considering the delay of 4 years and 9 months. The statement appears to be a misstatement on the face of it. The judicial notice can be taken note of the fact that the Company is managed by the law professionals having expertise and periodical reviews of the cases are also conducted. Therefore, the explanation of delay for non-filing of cross objection for a period of more than 4 years and 9 months cannot be supplemented with the word bona-fide mistake to condone the delay. Accordingly, prima facie it appears that the cross objection has been moved without any valid reason and is a result of after-thought process which cannot be encouraged by the court at the hands of the insurance Company as otherwise the provisions of cross objection will be rendered a mere formality. Therefore, the cross objection on the face of it is hopelessly barred by the limitation and is without any bona-fide, therefore, is dismissed.

Now coming to the question of compensation awarded, since the application before the Court below was moved u/s. 163-A of the M.V. Act, as such it will be just and proper to quote the provisions of Section 163-A which provides for compensation on structured formula basis which is quoted as under:

"Section 163A. 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."

There can be no doubt that Section 163A of the Motor Vehicle Act creates a new, different distinct and absolute statutory liability. In adjudication under Section 163A, the following question will have to be considered by the Tribunal:--

(i) Was there an accident arising out of the use of a motor vehicle?

(ii) Did that accident result in death or permanent disablement?

(iii) Who was the authorised insurer of the motor vehicle involved or its owner?

(iv) Are the claimants the legal heirs of the victim or the victim?

(v) What is the amount of compensation payable under the Second Schedule?

(vi) If there are plurality of claimants/legal heirs, how is the amount to be distributed among them justly and reasonably?

Therefore, it would be necessary to quote the scheme under Section 163A, and the proof of negligence is irrelevant. Consequently contributory negligence is also irrelevant. In order to ascertain the liability under Section 163A, the scheme of Section 163A is to be followed which creates different absolute statutory liability. Extent of dependency is also irrelevant to ascertain the quantum of compensation. To put it strait, it may be any compensation under Section 163A of the Act, the legislature has made the owner and driver of motor vehicle as also the authorised insurer as statutory liable. The significance of including the authorised insurer as the one on whose shoulders the principal liability exits can not be ignored. Meaning thereby the authorised insurer has been advisedly made principally liable under Section 163A to pay the amounts due under Section 163A. Non obstinate clause makes it clear that the liability has to be understood ignoring the provisions of all other laws including the provisions of the Motor Vehicle Act. Section 163A which declares the right and liability does not in any way limit the applicability of the section to third parties. Plain language of the section appears to take in all victims of motor accidents whether they are inside or outside the vehicle. The section, by the wide sweep of the semantics, appears to take within its width all victims of accidents, therefore, the liability and the claim which has been decided by the learned Tribunal below are to be tested on the aforesaid provisions of Section 163A of the Act which has to be read along-with schedule.

In the instant case, the learned Tribunal has applied the multiplier method. It has assessed the income of the deceased as Rs. 15,000/- per annum and the dependency was calculated as Rs. 10,000/- and thereafter a multiplier of 17 was applied. Here in the instant case, the date of the accident was in the year 2005. The notional income of Rs. 15,000/- was prescribed in second schedule under Section 163-A of the M.V. Act in the year 1994. Considering the fact that Ramesh @ Ramesar lost his life in the year 2005, if the increase in essential commodities and cost of living between 1994-2005 is taken into consideration, I propose to re-compute the notional income as Rs. 36,000/- per annum i.e., Rs. 3000/- per month. The same view has been taken by this Court I in case law Rewati Bai Vs. Bodhan Thakur.

Now coming to the present case, the learned Tribunal has used the multiplier method. It is easy to identify the horizontal entry. In this case the annual income of the deceased has been held to be Rs. 36,000/- per annum and the evidence is on record that at the time of accident, the age of the deceased was shown to be 35 years, as per the postmortem report Ex. P-3. Therefore, taking the income as Rs. 36,000/- per annum along-with horizontal column, which prescribed that for the age group of 35-40 years in the schedule of 163-A, the amount comes to Rs. 5,40,000/-. Now further there has to be deduction of 1/3rd as per the note appended to schedule of 163-A. 1/3rd of Rs. 5,40,000/- comes to Rs. 1,80,000/- and after deducting the same, the award comes to Rs. 3,60,000/-. In addition, there will be provision for general damages as per section 163A, therefore, the claimants further shall be entitled to Rs. 2000/- for funeral expenses; Rs. 5000/- for loss of consortium and Rs. 2,500/- for loss of estate. Therefore, the total compensation comes to Rs. 3,69,500/-. Hence, the amount is enhanced to Rs. 3,69,500/- which the claimants shall be entitled to receive after deducting the amount of Rs. 1,87,000/-, if paid by the respondents. The enhanced sum shall carry further interest @ 9% per annum from the date of claim application till the date of realization. The insurance Company shall pay the amount first and thereafter recover the same from the owner and driver of the vehicle. In the result, the appeal is partly allowed. No order as to costs.