Lanka Sarala Devi vs Kadiala Subbaiah

Dr. B. Siva Sankara Rao, J.—1st claimant-wife, 2 and 3 claimants-minor son and minor daughter, 4th claimant-father and 5th claimant-mother-in-law of the deceased (added as guardian of 2nd and 3rd claimants since 1st claimant died pending petition) who is not dependent on the deceased but for her grandchildren, who filed the claim in M.V.O.P. No. 1035 of 2000 on the file of the learned Chairman of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Guntur (for short, ''Tribunal'') against the owner and insurer of the tipper bearing No. AP7 U 3345 for death of Sri Joyababu no other than the driver of the said tipper of the 1st respondent while proceeding with load of proclainer bocate, for repairs along with the cleaner of the vehicle, due to his negligence while driving the vehicle which went extreme right side of the road margin and the vehicle turtled and he was crushed under the cabin of the tipper and lastly breathed, instantly due to the head injury covered by Ex. A.1 FIR Ex. A.4 PM report, Ex. A.3 final report from his death being driver, for no other accused; preferred the claim instead of mentioning Section 167 of the M.V. Act from the option available thereunder either to proceed under the Workmen''s Compensation Act before the Workmen''s Compensation Tribunal or before the tribunal under the M.V. Act, option provided therein, by wrongly quoted the provision as if under Section 141 (not applicable but for interim measure under Section 140, on showing that no bar to the final claim other than under Section 163-(A)); Section 149 (a general provision once policy covered the risk, for the insurer to indemnify the third party or those entitled under the policy) and Section 166 of the M.V. Act and the tribunal awarded only compensation of Rs. 50,000/- with interest at 6% p.a. of no fault liability sum under Section 140 from quoting of Section 141. It is thus impugning the same, the claimants preferred the appeal.

It is important to note that among the chapters 10 to 12 of the M.V. Act, in Chapter 10 the provision under Section 140 provided for interim compensation of no fault liability sum of Rs. 50,000/- and that is not a bar to the final claim under Section 166 of the Act; subject to deduction of what was awarded under Section 140, as laid down under Section 141. Section 141 speaks the right to claim compensation under Section 140 in respect of death or permanent disability shall be in addition to other right under Section 166 or the like, except the right to claim in the claim preferred under Section 163(A) of the Act. Thus, the contention is that the claim ought to have been taken under Section 166 of the Act, with any interim claim under Section 140 of the Act, but went wrong by the tribunal without deciding the final claim by giving final disposal with the interim claim.

Whereas, it is the contention of the 2nd respondent-insurer (1st respondent-owner of the crime vehicle who remained ex parte before the tribunal did not appear even in appeal but taken as heard to decide on merits) that award of the tribunal is just and there is nothing to interfere for this Court while sitting in appeal and hence to dismiss the appeal.

Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

Now the points that arise for consideration in the appeal are:

"1. Whether the compensation awarded by the tribunal is unjust and in ignorance of the provisions and legal principles, if so, what just compensation to arrive, with what rate of interest and with what observations?

To what result?"

Point No. 1:

Before discussing further, coming to Chapter 11 wherein Section 163(A) speaks with the words starting with non-obstante clause as a special provision as to payment of compensation on structured formulae basis; that notwithstanding anything contained in the Act or any other law for the time being in the 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 2nd schedule to the injured or legal heirs of the deceased as the case may be. In Chapter 11 Section 163(B) that is also important from the option given to proceed for the no fault final liability under Section 163-A or for the no fault interim liability under Section 140 without prejudice to the right to claim final compensation under another provision other than section 163-A by virtue of and under Section 141 supra, where a person is entitled to claim compensation under Section 140 or Section 163-A, he shall file the claim under either of the two sections and not under both.

Before parting with, it is important to refer Chapter 12 of the Act in which section 165 speaks, the claims tribunal constituted to deal with the claims of no fault liability interim under Section 140 or final under Section 163-A or final under any other provision of this chapter i.e. Section 166 or 167 as the case may be. Section 166 of this chapter 12 speaks of final claim under fault liability either from the claim filed by the claimants invoking the provision or from the report of the accident received from the tribunal to take as a claim under section 158(b) read with Section 166 or 163-A as the case may be, which also speaks of the option regarding the claim for compensation supporting with non-obstante clause that notwithstanding anything contained in the W.C. Act, 1923, whether the death or bodily injury of any person gives rise to claim for compensation under this Act and also under W.C. Act, the person entitled to compensation may without prejudice to the provisions of Chapter 10 claim such compensation under either of those Acts but not under both.

Section 168 is also important to refer in this context that on receipt of application for compensation under Section 166 of the Act, the tribunal after giving notice to the insurer and of the parties supra of being heard, hold an enquiry in the claim or, as the case may be, each of the claims and (subject to the provisions of Section 162) may make award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom 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 involving in the accident or by or any of them as the case may be. The proviso speaks that where such applicants make the claim for compensation under Section 140 in respect of death or permanent disablement of any person, such claim and any other claim for compensation in respect of death or permanent disablement shall be disposed of in accordance with the provisions of chapter 10. In view of Section 168 refers Section 162; it is also necessary to briefly mention, by cursory reference Sections 161 to 163 of the Act which are part of Chapter 11 that deals with hit and run cases by constitution of forum to make an application or to award compensation on a reference. Leave about any controversy as to whether application filed under Section 165 read with 161 and 162 for the hit and run cases compensation before the tribunal whether it can award or to direct special forum to constitute with M.R.O. by specifying liability of the insurer zone-wise dividing the country into 4 zones to specify the claims. It is needless to say, even the claim of hit and run case filed before the tribunal, it can adjudicate to award only the fixed amount specified thereunder and cannot award more to it, but the forum under Sections 161-163 through the MRO besides directing payment of the fixed amounts, can recommend more than that compensation. As such, it is advisable to such claimants in hit and run cases, to approach MRO concerned being the special forum. Beyond that, no more discussion is required on the scope of Sections 161-163 read with 140 and 141 of the Act.

Coming back, a perusal of the provisions particularly of Section 140(3) and (4) for interim compensation concerned of no fault, the claimants need not plead or prove any fault or neglect or wrongful act or defect and the right of defence of the insurer or owner also is taken away by this provision; irrespective of the nomenclature of the Section 163-A of no fault or semi fault liability concerned. However, under Section 166 there are no any of the two provisions i.e. similar to 163-A(2) equal to 140(3) or 140(4) to say, it is the duty of the claimants to plead and prove in a claim under Section 166 of the Act, and also entitlement of the defence to raise any defence by plead and prove contributory/composite negligence, leave about controversy as to even the claimants, need not under plead and prove wrongful act or neglect or fault under Section 163-A from similar provision under Section 163-A(2) in Section 140(3): From non-existence of similar provision of Section 140(4) in Section 163(A), it is clear that the right of the insurer to raise the defence is not taken away in a claim under Section 163-A similar to Section 166;

Suffice to say on these aspects, coming to the provisions quoted in the claim petition from reference of Section 141 and 166, it is clear that the claim is not only interim under 140 but also final by virtue of Section 141 read with 166 instead of quoting with Section 167 from the option available either to proceed under W.C. Act or under M.V. Act of the claimants for final liability.

However, without going into it, the tribunal only answered Section 140 claim that yet to be answered the final claim under Section 166 read with 167. Undisputedly, the liability of the insurer from the deceased in this case was driver of the vehicle of the 1st respondent insured with the 2nd respondent is under W.C. Act unless shown comprehensive unlimited coverage of risk under Section 166 of M.V. Act as it requires to be answered that was not answered.

In view of this, the matter requires remittance to the tribunal for giving an opportunity to both sides to adduce evidence on the final claim under Section 167 read with Section 166 under Chapter 12 of the Act by treating claim answered is only under Section 140 read with 141 of no fault interim liability by virtue of the enabling provision for final adjudication of the claim and then for deduction out of the final claim what the interim compensation awarded; in directing the insurer to pay the same to the claimants. Meanwhile if not deposited including any balance to deposit out of said Rs. 50,000/- already awarded by the tribunal as interim compensation permitting the claimants to receive by cheque petitions without any need of further permission petition. Accordingly, Point No. 1 is answered.

Point No. 2:

In the result, the appeal is disposed of by remanding the matter with a specific direction to the tribunal to restore the M.V.O.P. No. 1035 of 2000 and try under Section 141 read with 166 and 167 of the final liability in addition to what is awarded of interim compensation of Rs. 50,000/- by giving an opportunity to both sides to adduce further evidence and give final disposal on merits.