Oriental Insurance Co. Ltd. vs Shaju Joseph and Others

J.B. Koshy, J.—This appeal is filed by the insurance company against the award of the Motor Accidents Claims Tribunal in a claim petition filed u/s 163-A of the Motor Vehicles Act (in short ''the Act''). The son of claimant Nos. 1 and 2 (respondent Nos. 5 and 6 in this appeal) sustained fatal injuries in a motor accident on 9.2.2004. According to the claimants, while deceased was proceeding on a motor cycle bearing registration No. KL 7-U 8423 from Thodupuzha to Vazhakulam for official purpose, a bus bearing registration No. KL 6-8647 stopped ahead of the motor cycle all of a sudden and thereby it hit on the left back side of the bus and he sustained fatal injuries and succumbed to the injuries. According to the claimants, the bus driver was negligent. The driver, owner and insurer of the bus were arrayed as respondent Nos. 1 to 3. The respondent No. 4 was the owner of the motor cycle and respondent No. 5 was the insurer of the motor cycle in which the deceased was travelling. The Tribunal calculated compensation as per the structured formula. An award was passed directing payment of the sum of Rs. 2,76,500 with interest thereon at 8 per cent per annum from the date of application as compensation. The insurer of the bus as well as insurer of the motor cycle were directed to pay the compensation in equal moieties. The insurer of the motor cycle did not file any appeal but the insurer of the bus has filed this appeal, challenging the said award.

The main contention of the insurance company is that Tribunal erred in taking 17 as the multiplier considering the age of the motor accident victim, when the father of the deceased, claimant No. 1, was aged 55 years and the mother of the deceased, claimant No. 2 was aged 50 years. The sister and brothers of the deceased were aged between 25 and 28 years. According to the insurance company, even if the average age of father and mother is taken, only 11 can be taken as the multiplier and not 17. The deceased was aged 22 years at the time of the accident. The age of the victim is not disputed. The Tribunal assessed Rs. 2,000 as the monthly income. The accident occurred when he was going for official purpose. Apart from the oral evidence of the claimants, no other evidence was adduced to prove that the deceased had an income of Rs. 3,000 per month as claimed by the claimants and the Tribunal has fixed only Rs. 2,000 as the monthly income considering the fact that the deceased was a young man aged 22 years and was employed. We are of the opinion that the monthly income fixed by the Tribunal needs no interference. As already stated, the major dispute is regarding the multiplier taken.

It is well settled law that if a claim is filed u/s 166 of the Act, the multiplier fixed u/s 163-A need be considered only for guidance and if the deceased is unmarried, normally, the age of the parents is to be looked into. It was held in various cases that even in claims filed u/s 166, the Second Schedule framed for fixing compensation u/s 163-A can be taken for guidance and in exceptional circumstances changes can be made. [See three-member Bench decision of the Supreme Court in Smt. Supe Dei and Others Vs. National Insurance Co. Ltd. and Another, ; Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, and A.P.S.R.T.C. rep. by its Chief Law Officer Vs. M. Pentaiah Chary, . It was also held that if the motor accident victim is unmarried, for fixing the multiplier, the age of the claimants as well as motor accident victim can be looked into and the lowest multiplier can be adopted. [See H.S. Ahammed Hussain and Another Vs. Irfan Ahammed and Another, . The Supreme Court has also held that if a very high multiplicand is taken, a lower multiplier can be taken. The Supreme Court in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., , held that except in very rare cases, the multiplier shown in the Second Schedule should not be deviated from. The other methods, which were in vogue prior to the introduction of the multiplier system, were held to be no more good. It was also held that though the Second Schedule is a safe guide for the purpose of calculation of the amount of compensation, in special circumstances, it can be changed and if the multiplicand is very high, a lower multiplier can be taken. In that case, deceased was employed abroad. The income earned by him, considering the exchange value, was very high. Therefore, the Apex Court adopted a slightly lower multiplier than that fixed under the Second Schedule. The question of taking the Second Schedule for guidance was considered in all these decisions where claims were filed u/s 166. In case of Section 163-A, compensation amount is fixed in fatal case and the court is bound to take the age of the victim, the monthly income and award the fixed amount mentioned in the Second Schedule as compensation. It has no option.

Even though in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , it was pointed out by the Supreme Court that there were some mistakes in the Second Schedule, those mistakes have not been corrected so far. The Hon''ble Apex Court did not set aside the Second Schedule but held that Table under Second Schedule cannot be used as a ready reckoner if claims are filed u/s 166, but only for guidance. If claims are filed u/s 163-A the Tribunal or court cannot deviate from the structured formula given in the Second Schedule. After considering Trilok Chandra''s case (supra), the Supreme Court in New India Assurance Co. Ltd. Vs. Charlie and Another, , held as follows:

(21) In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , it was noted that the normal rate of interest was about 10 per cent and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , appears to be appropriate. In fact in Trilok Chandra''s case (supra), after reference to the Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide; but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.

But, the above case also arose from a claim filed u/s 166 and the above decision cannot, therefore, be relied on by the claimants to argue that the Tribunal ought to have taken 18 as the multiplier as the age of the deceased was between 20 and 25.

The differences between Sections 163-A, 166 and 140 of the Motor Vehicles Act were considered in detail by a three-member Bench of the Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934 (SC). In the above case, the Hon''ble Supreme Court had considered in detail the scope of claims u/s 163-A and that is the only decision wherein the provisions of Section 163-A were explained in detail after considering the legislative history and various other aspects. Para 18 of the above judgment refers to the legislative history. At paras 29 and 30 it was held as follows:

(29) The Second Schedule referred to in Section 140 of the Act provides for a structured formula for the purpose of grant of compensation to a third party involved in a fatal accident/injury. By reason thereof, a multiplier system is introduced pursuant whereof and in furtherance whereof the amount of compensation is required to be calculated having regard to the age of the victim and his annual income. However, in terms of the note appended to the said Schedule the amount of compensation so arrived at in the case of fatal accident, the claim is to be reduced by one-third, in consideration of the expenses which the victim would have incurred towards maintaining himself, had he been alive.

(30) Clause (2) of the said Second Schedule provides that the amount of compensation shall not be less than Rs. 50,000. It also provides for grant of compensation under several heads, namely, Clause (3) General damages in case of death, Clause (4) General damages in case of injuries and disabilities, Clause (5) Disability in non-fatal accident, and Clause (6) Notional income for compensation to those who had no income prior to accident. However, the maximum amount which is to be paid under the different heads had also been specified.

The Hon''ble Supreme Court also held that fault of the driver of the offending vehicle need not be proved. It is further held that in view of Section 163-B of the Act, an option had been provided to enable the claimants to claim compensation either u/s 140 or Section 163-A. If a claim u/s 140 is filed, another claim u/s 163-A will not lie, even though Sections 163-A and 140 are based on strict liability (liability without fault) principle formulated in Rylands v. Fletcher 1861-73 All ER 1, referred to in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, . But, now Hon''ble Supreme Court has in Deepal Girishbhai Soni''s case (supra) also noticed the differences between Sections 140 and 163-A because an award u/s 140 is only an interim measure and claimants can claim full compensation u/s 166 with set off against the amount awarded u/s 140. But, a claimant cannot file a claim for compensation under Sections 163-A and 166 simultaneously. Both are independent claims and that should be looked into independently. Section 163-A deals with application for granting final award and not an award as an interim measure. The Apex Court after considering the objects and reasons of the Motor Vehicles (Amendment) Act, 1994 which introduced Section 163-A held that Section 163-A was introduced in the Act by way of a social security scheme. It is a code by itself. It was also held that claims u/s 163-A can be filed only if the annual income is below Rs. 40,000. At para 42 it was held as follows:

(42) Section 163-A was, thus, enacted for grant of immediate relief to a section of people whose annual income is not more than Rs. 40,000 having regard to the fact that in terms of Section 163-A 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 column Nos. 2 to 6 thereof leave 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 accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.

At para 46 the Hon''ble Supreme Court held as follows:

(46) Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structured formula basis. Sub-section (1) of Section 163-A contains non ob-stante clause in terms whereof the owner of the motor vehicle or the authorised insurer is 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. Sub-section (2) of Section 163-A is in pari materia with Sub-section (3) of Section 140 of the Act.

(Emphasis added)

Again, at para 48, it was held that while granting compensation, the Tribunal is required to adjudicate only the question as regards the age and income, if disputed. At para 51 it was held as follows:

(51) The scheme as envisaged u/s 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000 or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society.

(Emphasis added)

The above three-member Bench decision clearly shows that Section 163-A read with Second Schedule is a complete machinery for awarding compensation. The object behind introduction of Section 163-A is to prevent long-drawn-out litigation and the statutorily provided formula cannot be altered by the Tribunal or court when claims are filed u/s 163-A, provided the annual income of the victim is below Rs. 40,000. As the claim for compensation under both sections are final and independent as statutorily provided, a claimant cannot pursue his or her remedies thereunder simultaneously. Once a claim is filed u/s 163-A, while awarding compensation, the Tribunal need only look into the following questions; whether injury was sustained in an accident arising out of the use of motor vehicle of the respondent, the age of the accident victim and the percentage of permanent disability in case the injury is not fatal. Section 163-A provides a multiplier method for payment of compensation in case of personal injuries and consolidated amount in the case of death. Apart from the above, general damages to be awarded in case of injuries and disabilities are also mentioned u/s 163-A which are as follows:

(4) General damages in case of injuries and disabilities:

(i) Pain and suffering (a) Grievous injuries Rs. 5,000 (b) Non-grievous injuries Rs. 1,000 (ii) Medical expenses-actual expenses incurred supported by bills/vouchers but not exceeding as one time payment Rs. 15,000

(5) Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:

Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks.

Plus either of the following:

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen''s Compensation Act, 1923.

In a claim u/s 166, compensation for pain and suffering can be awarded by Tribunal without any limitation depending upon the injuries and the suffering. But, here, u/s 163-A, even if the injuries are grievous, the maximum compensation payable for pain and suffering is only Rs. 5,000. For medical expenses, the maximum amount payable is Rs. 15,000, that too only if supported by bills and vouchers. But, in Section 166 claims, actual medical expenses, even if it amounts to Rs. 1,00,000 or more, can be granted. With regard to fatal accidents, Section 163-A provides that amount of compensation shall not be less than Rs. 50,000 and for general damages the following are mentioned:

(3) General damages (in case of death): The following general damages shall be payable in addition to compensation outlined above:

(i) Funeral expenses Rs. 2,000 (ii) Loss of consortium, if beneficiary is the spouse Rs. 5,000 (iii) Loss of estate Rs. 2,500 (iv) Medical expenses- actual expenses incurred before death supported by bills/vouchers but not exceeding Rs. 15,000

It is to be noted that for funeral expenses the maximum amount payable is only Rs. 2,000, for loss of consortium Rs. 5,000, etc. and no other amount can be awarded. Further, in the case of fatal accidents, the amount payable is also fixed. For example, if the income is Rs. 18,000 per year for a person aged between 20 and 25, the compensation fixed is Rs. 3,24,000. From that, one-third has to be deducted for personal expenses and the compensation payable will be Rs. 2,16,000 and general damages as fixed in the Schedule. Whereas in non-fatal accidents, no deduction of personal expenses is necessary. Compensation to be granted based on the income will be Rs. 18,000 x 17 (multiplier) x percentage of disability as certified by the doctor and accepted by the Tribunal. So, as far as fatal accidents are concerned, in claim u/s 163-A, the amount payable is fixed, if the age of the victim and income are known. In the case of non-earning persons, notional annual income is also fixed as Rs. 15,000. In claims u/s 166, negligence of the driver of the offending vehicle has to be proved by the claimants as the claim is based on tortious liability. But, considering the present cost of medical treatment, the claimant can claim actual medical expenses incurred, a high amount towards pain and suffering and various other claims like attendant expenses, transport expenses, etc. which are not allowable u/s 163-A. Even though the Second Schedule can be taken as a guide for calculating compensation u/s 166, both claims are independent. The courts and the Tribunals have no option if a claim u/s 163-A is filed by a person whose annual income is below Rs. 40,000, but to award compensation strictly as per the Second Schedule in the light of the three-member Bench decision of the Hon''ble Supreme Court. The three-member Bench decision of the Hon''ble Apex Court is binding on us. Differences between Sections 163-A and 166 of the Motor Vehicles Act are given in a chart as follows:

Table 1: Difference between Section 163-A and Section 166 ------------------------------------------------------------------------------- Sl. Section 163-A Section 166 No. ------------------------------------------------------------------------------- 1. The victims are not required to The victims are compulsorily prove negligence under this required to prove negligence. section. ------------------------------------------------------------------------------- 2. Claim under this section is based Claim under this section is based on ''no fault liability''. on ''tortious liability''. ------------------------------------------------------------------------------- 3. Only evidence regarding the factum Evidence regarding negligence, of accident and vehicle involved various other aspects regarding in the accident, age of the motor claim for compensation, etc. are accident victim, income of the to be established by the claimant claimant, etc. need be proved. A by a long-drawn-out trial. long-drawn-out trial is not contemplated. ------------------------------------------------------------------------------- 4. Only general damages limited by Special damages can also be Schedule can be awarded. claimed. ------------------------------------------------------------------------------- 5. Income at the time of accident is Not only income at the time of taken into consideration. accident but also future prospects certain to take shape may be taken into consideration. ------------------------------------------------------------------------------- 6. In an application u/s It is the Tribunal which has to 163-A, in case of fatal accident, adjudicate and come to the amount is fixed and in case of conclusion as to which multiplier negligence, multiplier is fixed on will be applicable. the basis of age group as stated in Schedule II a part of section. ------------------------------------------------------------------------------- 7. The age of the victim alone is There are number of factors which relevant to arrive at the number of the Tribunal have to taken into multiplier. consideration. For example-who are the dependants, either heirs or parents and their age. ------------------------------------------------------------------------------- 8. Age of heirs and parents is not The age of heirs and age of taken into consideration while parents has to be considered in deciding the multiplier under deciding the multiplier in Section 163-A. application u/s 166 when accident victim is unmarried. ------------------------------------------------------------------------------- 9. If claimant is not an earning The Tribunal is required to person, Section 163-A provides for adjudicate and decide the minimum a minimum notional income. income may be on presumptions. ------------------------------------------------------------------------------- 10. On furnishing the data as to age of Such Schedule is not available for the victim, Schedule provides a claims u/s 166, but, ready reckoner to calculate the Second Schedule shall be taken award amount u/s 163-A. only for guidance. -------------------------------------------------------------------------------

In this case, the Tribunal has calculated compensation strictly in accordance with the claims u/s 163-A. In Section 163-A claims, age of the victim (22 years) alone is considered in fixing the multiplier and calculating compensation. Age of the parents (here it is above 50 years) is of no relevance for calculating compensation. Considering the increase in lifespan in Kerala which is 70, whether a higher multiplier should be taken especially considering the low rate of interest, etc. need not be considered in this claim filed u/s 163-A as compensation is awarded strictly as per the structured formula as mandated by the legislative provision. We see no ground to interfere with the impugned award.

The appeal is dismissed.