New India Assurance Co. Ltd. vs Smt. Rani Devi and Others

Rajes Kumar and Het Singh Yadav, JJ.—Heard learned counsel for the appellant. This is an appeal by the insurance company. The appellant is the insurer of bus bearing registration No. U.P.-93C-2348. The accident took place on 27.4.2009. The case of the claimant was that few persons, namely. Laxmi Narain and Jai Ram Sahu and others were traveling in tractor trolley going from Jhansi to their village. The tractor was going on its own side while the bus came from right side and hit the tractor trolley, as a result of accident, the tractor trolley turtled causing grievous injuries to the persons sitting in the tractor trolley. Jai Ram Sahu and Nand Kishore died and other persons suffered injuries. The first information report was lodged and site plan was prepared. Laxmi Narain, who was eyewitness stated that the driver of the bus was driving the bus negligently and came to the wrong side and hit the tractor trolley. The site plan filed by learned counsel for the appellant is at page No. 54 of the memorandum of appeal, also reveals that the bus came from wrong side and hit the tractor trolley. The accident was caused on account of the negligence of the driver of the bus. Tribunal on the basis of the principle laid down by the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, has assessed the compensation.

Learned counsel for the appellant submitted that the claim was made u/s 163A of the Motor Vehicles Act at Rs. 2,81,500 while the Tribunal has awarded the compensation to the extent of Rs. 3,93,500 in excess to the amount claimed by the claimant which is not justified.

We do not find any substance in the argument of learned counsel for the appellant.

4A. Sections 163A and 166 of the Motor Vehicles Act are being reproduced below:

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.

Application for compensation.--(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 of the deceased; or

(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 impleaded 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 within the local limits of whose Jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation u/s 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) [***]

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.

Section 163A starts with now obstante clause "Notwithstanding anything contained", therefore, it has an over-riding effect on other sections of the Act.

The application for the compensation is required to be moved u/s 166 of the Act. Section 163A provides that the compensation is payable by the owner or the insurer in the case of the death or permanent disability. Section 163A (2) provides that it is not required to prove wrongful act, negligence or default on the part of the driver of the vehicle. Whether the application has been moved u/s 166 or 163A of the Act, in both the cases, compensation has to be calculated under Schedule II, provided under the Act in case of death or permanent disability. In the present case, the compensation has been calculated under Schedule II of the Act. The claimant claimed that the income of the deceased was Rs. 3,300 per month, but in the absence of any evidence, notional income of the deceased has been taken at Rs. 3,000 per month, in view of the principles laid down by the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation (supra). It appears that the claimant might have not applied the proper multiplier as per the Schedule and has not claimed the other admissible compensation, which is normally awarded. It is not the case where the Tribunal has estimated higher income of the deceased than the Income claimed by the claimant. We are of the view that even if the claimant claimed less amount but in a case of death or permanent disability, under the Statute, it is required that the compensation is to be calculated in accordance to the Schedule II of the Act. Therefore, the compensation should be calculated in accordance to Schedule II. In the present case, the Tribunal has rightly done so. In the facts and circumstances of the case, we do not find any error in calculation of the amount of compensation by the Tribunal, which is in accordance to the principles laid down by the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation (supra). In the result, the appeal fails and is dismissed. However, dismissal of the present appeal will not affect rights of other parties.

The office is directed to remit back the statutory amount to the concerned Tribunal within four weeks.