The Divisional Manager vs Maithili

K.N. Phaneendra, J.—In these two appeals, the Maharashtra State Road Transport Corporation through its Divisional Manager has called in question the judgment and award passed by the MACT-IV, Belgaum and 3rd Additional District Judge, Belgaum, in MVC Nos. 230/2006 and 231/2006.

In order to avoid confusion, I would like to retain the ranks of the parties according to their ranking before the trial Court.

The petitioners Smt. Maithili and Sri. Sudhakar Gopal Mankame have filed claim petitions in MVC Nos. 230/2006 and 231/2006 before the trial Court claiming compensation on account of the death of one Kavika Laxman Lad, an infant aged about one year and Smt. Savita Sudhakar, a married woman, in a motor vehicle accident that took place on 12.09.2005 at about 1.15 p.m..

It is the case of the claimants that a lady by name Smt. Savitha Sudhakar, a married woman, along with a child namely Savika Laxman Lad, aged about one year, were proceeding in a car bearing Registration No. MH. 06/T. 6257 along with others from Panvel to Goa When the car came near Soundalga Village on Pune-Bangalore Road, it collided with MSRTC bus bearing Registration No. MH. 31/AP. 9842. Due to the said impact, both the said lady and the small child succumbed to the injuries. The appellant herein, who is the 1st respondent before the trial Court, contested the proceedings seriously on the ground that, though two vehicles were involved in the accident, the trial Court has committed serious error in fastening the liability of payment of compensation on the 1st respondent only.

Sri. C.V. Angadi, learned Counsel appearing on behalf of the appellants in both the cases, has strenuously contended before this court that nowhere in the pleadings and the evidence, it is stated that due to the negligence of the driver of the bus, the incident has happened. On the other hand, from the materials available on record, i.e., FIR, it is clear that the rash and negligent driving was on the part of the driver of the car. Therefore, he contends that the trial Court has not properly appreciated this fact and it would have apportioned the negligence and ordered for payment of compensation amongst the owners/insurers of the two vehicles Therefore, on this ground, he contends that the order of trial Court is bad in law. It is also contended that the finding given to the effect that non-examination of the driver of the bus is fatal, as held by the trial Court, is not proper. The trial Court has also erred in awarding unreasonable compensation of Rs. 1,80,000/-. In view of the peculiar circumstances of the case and the trial Court is also not justified in assessing the compensation for the death of a kid aged about one year. Therefore, for all these reasons, the learned counsel pleads before this court to set aside the order passed by the trial Court. In the alternative, he also contends that the compensation shall be apportioned amongst Respondent No. 1 as well as Respondent No. 2 i.e., on the insurer of both the vehicles.

Per contra, Sri. Harish S. Maigur, learned Counsel for Respondent No. 1 contends before this court that the petition filed by the claimants are under Section 163-A of the Motor Vehicles Act (for short, ''M.V. Act'') and not under Section 166 of the M.V. Act. If at all the claim petitions were filed under Section 166 of the Act, the argument of the learned counsel for the appellant could have been holds good. When Section 163-A of the M.V. Act does not require proof with regard to negligence on the part of any vehicle and it only contemplates the proof of user of the vehicles and there is no need for the claimants to prove the negligence on the part of any of the vehicles. Therefore, fastening the liability in favour of the 1st respondent is absolutely not illegal, as the criminal case has been registered against the driver of the MSRTC bus and not against the driver of the car. Secondly, the learned Counsel contended that the trial Court after appreciation of the material on record has properly assessed and granted the compensation in accordance with law. Therefore, there is no reason for this court to interfere with the well-reasoned judgment and award passed by the trial Court.

On perusal of the records in both the cases, it is seen that the claim petitions were filed under Section 163-A of the M.V. Act. Of course, on the FIR lodged by the driver of the bus stating that the car came from the back side of the bus and dashed against the car, a criminal case was registered against the driver of the car. On the basis of this, learned Counsel contends that the entire negligence is on the part of the car driver and there is no negligence on the part of the driver of the bus. The trial Court has considered this particular aspect and has come to the conclusion that the negligence aspect has to be considered only when the claim petition is filed under Section 166 of the Act. No where, Section 163-A contemplates that the claimants have to prove any negligence either on the part of the bus or car. Therefore, the trial Court has come to the conclusion that if the proof is given to the trial Court that both the vehicles involved in the accident, then it is left to the discretion of the claimant/s to go against any of the insurer of the offending vehicle for recovery of the compensation.

The trial Court has come to the conclusion that the combined reading of the provisions of Section 163-A(1) and 163-A(2) of the M.V. Act, gives an unfettered mandate that while considering the claim petition arising under Section 163-A of the M.V. Act, 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.

The trial Court also relied upon the decision of this Court reported in 2007 ACJ 278 [New India Assurance Co. Ltd. Vs. Sunil and Another] wherein this court has held that the compensation under section 163-A of the M.V. Act can be awarded to the claimant even if he himself is negligent. So basing on the said decision, the trial Court has awarded the compensation fastening the liability on MSRTC.

Of course, the learned Counsel for the appellant has rightly contended that two vehicles have been involved in the accident, therefore, the trial Court would have apportioned the liability of paying compensation amongst owner/insurer of two vehicles. However, the claim petitions are filed by the inmates of the car. When the aspect of ''negligent'' is not at all necessary to be considered by the court, the question of apportionment of the liability amongst the owner/insurer of two vehicles, does not come to picture at all. Section 163-A clearly contemplates that the compensation can be awarded against the owner/insurer of any of the vehicles involved in the accident. For the purpose of easy understanding and convenience, it is just and necessary to extract Section 163-A of the MM. Act, which reads as under:-

163-A. Special provisions as to payment of compensation on structure 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 ft), 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.

On a plain reading of the above said provision, it is clear that notwithstanding anything contained in this Act or any other law for the time being in force or any instrument having force of law, the owners of the motor vehicle or authorised insurer shall be liable to pay compensation under this provision. Sub-clause (2) also clearly envisages that 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 the wrongful act or negligence or default of the owner of the vehicle or vehicles. Therefore, when there is no question of identifying the negligence on the part of the drivers of the bus or car, question of apportionment of negligent act or apportionment of compensation does not arise.

Apart from the above, the trial Court has also considered the documents-Ex. P1-FIR, Ex. P2-complaint and Ex. P3-Spot Mahazar and came to the conclusion that there was a collision between a MSRTC bus and a Maruthi Car. Death has been established and the accident has been established. Therefore, the claimants are entitled to recover the compensation from any of the insurance company of the vehicles. Therefore, in that regard, the trial Court has passed an order against the appellant/MSRTC, directing it to pay compensation awarded to the respective petitioners with cost and interest at 6% pa. The trial Court has also on the basis of the factual aspects and the records came to the conclusion that the car is shown to have hit the MSRTC bus from behind on the right rear side and it is not that the MSRTC Bus was on its extreme left side of the road. Its right wheels are almost passed on to the center of the road. If the driver of the bus was really diligent in driving, he could have avoided the accident by taking the bus to the left side and giving way to the car to pass smoothly. Considering these factual aspects, the trial Court has awarded compensation against the MSRTC bus under Section 163-A of the Act, as already narrated above. Therefore, there is no need for the court to identify the negligence on the part of any of the drivers of the vehicles. Therefore, it is left to the discretion of the claimant to recover compensation awarded, from any of the insurers or the owners of the said vehicles. In that context also I do not find any strong reasons to interfere with the orders passed by the trial Court. On facts also the trial Court has not committed any serious error in coming to such conclusion. Hence, the above said appeals do not deserve any merit.

Looking to the quantum of compensation, the trial Court has not awarded an exorbitant amount in favour the claimants, as the claimant in one petition has lost her kid namely Savika Laxman Lad aged about 1 year and the claimant in another petition has lost his wife-Smt. Savita Sudhakar, married woman aged about 51 years. Therefore, the award passed by the trial Court awarding compensation to the extent of Rs. 1,80,000/- to the petitioner in MVC No. 230/2006 and Rs. 2,73,500/- to the petitioner in MVC No. 231/2006 deserves to be affirmed.

Accordingly, the appeals are dismissed.

The amount, if any, in deposit is ordered to be transmitted to the trial Court for disbursement, in accordance with law.