MACMA/2699/2012 of The New India Assurance Company Limited, Vs Pulliachari on 30 December 2014

JUDGMENT :

The appellant-insurer filed this appeal aggrieved by theorder/award dated 30.07.2011 in M.V.O.P.No.586 of 2010 on the fileof Motor Accidents Claims Tribunal–cum-VI Additional DistrictJudge, Anantapur (for short, ’Tribunal’) awarding compensation ofRs.4,00,000/- with interest at 7.5% p.a. against the claim ofRs.4,00,000/- in the claim petition under Section 166 of the MotorVehicle Act, 1988 (for short, ‘the Act’).

2) Heard Sri A.Rama Krishna Reddy the learned standingcounsel for the appellant and Sri Manda Adam learned counsel forthe claimants. Perused the material on record. The partieshereinafter are referred to as arrayed before the Tribunal for the sakeof convenience in the appeal.

3) Pending appeal the Respondent Nos.1 and 2/claimants diedand the appeal was abated. Subsequently the daughter of theclaimants filed a petition in M.A.C.M.A.M.P.No.5303 of 2014 to setaside the abatement caused on account of death of claimants andM.A.C.M.A.M.P.No.5304 of 2014 to bring her on record asRespondent No.4 on behalf of Respondent Nos.1 and 2 as legal heirin the above appeal. Both the petitions are allowed.

4 ) The contentions in the grounds of appeal as well as oralsubmissions by the appellant-insurer in nutshell are that theJudgment and decree of the Tribunal is contrary to law, weight ofevidence and probabilities of the case, that the Tribunal gravely erredin considering the scope of Section 163-A of the Act and should haveconsidered that the accident was the sheer and absolute negligenceof the deceased rider of the bike including from the manner ofaccident of bike intruded into the stationed lorry on the left side with blinking lights and so far as the lorry bearing No.AAQ 6678 of the 1[st]respondent insured with the 2[nd] respondent, but for the vehicle inuse that was riding by the deceased, if at all to fasten liability againstthe rider since died owner and insurer, if any of the bike and theTribunal totally exonerating the same, despite showing from Ex.B-2scene observation report to read Ex.A-2 sketch if at all with it, thatthe Tribunal wrongly came to the conclusion as if the sketch showsthe vehicle in the middle of the road and as if there were no signallights or precautions and as if there is total negligence of the driverof the lorry apart from considering the riding of the bike with twopillion riders, hence to exonerate the insurer by allowing the appealsetting aside the award of the Tribunal. Learned counsel for theinsurer reiterated the same.

5) Whereas, it is the contention of the learned counsel for theclaimants/respondent Nos.1 and 2 of the appeal that the award of theTribunal holds good and for this Court while sitting in appeal, there isnothing to interfere with the trail Court’s findings fresh in mind of thefacts having recorded evidence, hence to dismiss the appeal.

6) Now the points that arise for consideration in the appealare:

1. Whether the award of the Tribunal fixing joint liabilityholding that there is negligence on the part of the driver ofthe crime lorry of 1[st] respondent insured with 2[nd]respondent under Ex.B-1 policy, is unsustainable andrequires interference, if so with what conclusions and withwhat observations?holding that there is negligence on the part of the driver ofthe crime lorry of 1[st] respondent insured with 2[nd]respondent under Ex.B-1 policy, is unsustainable andrequires interference, if so with what conclusions and withwhat observations?

2. To what result?

POINT No.1:

7) Ex.A-1 is the F.I.R given by the V.A.O in saying he came toknow and rushed to the scene of offence and found dead body ofdeceased herein and the bike and the stationed lorry at the road near kasepalli Choultry. The report was dated 16.11.1997 at about 10.00A.M, the accident shown occurred in the intervening night prior to thereport. There is no charge sheet filed by the police and it appearspolice closed the crime as if there is negligence of the deceased bikerider alone. Ex.A-3 is the post mortem report showing multipleinjuries and none of crush injuries but outcome of fall and basicallythe frontal skull injuries and fractures. The M.V.I report not filed inthis case by either side. Ex.B-3 statement under Section 162 Cr.P.Cof the driver of the lorry no way admissible in evidence for said lorrydriver was not came to witness box either to corroborate his versionwith reference to the same or to contradict either under Section 157or 145 or 155 (3) of Evidence Act. Now, the material documentsbefore the Court to appreciate are particularly P.W-1 and P.W-2 eyewitness to the occurrence as to the manner of accident, Ex.A-2rough sketch to be read with Ex.B-2 scene observation as the sketchprepared with reference to the scene observation and Ex.A-4inquest. The scene observation report filed by the insurer and roughsketch and inquest filed by the claimants in exhibiting among Ex.A-1to A-5 and Exs.B-1 to B-3 supra. A combined reading of the roughsketch with the scene observation, clearly indicates from the sceneobservation that it is near the Kasepalli choultry and near bus stopthe road is 22 feet width Tar Road and it is at the road left margin,the lorry was lying stationed 3 feet below the Tar Road in saying forwant of engine oil with parking lights. Ex.A-2 scene observationreport and sketch if perused with reference to the same, it cannot besaid as if the lorry was stationed on the middle of the road. In fact,in the sketch Ex.A-2, on road the lorry was shown beyond middletowards left side of the road facing Southwards. The Tribunalthereby went wrong by allegedly referring Ex.A-2 in saying as if thelorry was lying stationed on the middle of the road and as if there isno blinking lights or signal lights. Apart from the scene observation report speaking supra of signal lights, the inquest report on thescene of offence on the dead body of the deceased conducted theperson there with near relatives vide Ex.A-4 para-8 speak that thelorry was on left side road margin stationed and the motor cycle frontwheel totally intruded into the rear portion inside the lorry withdamage of the handle of the motor bike and para No.9 speaks thatthe occurrence probably at about 2.30 A.M after mid night of15.11.1997 i.e., on 16.11.1997 and that due to the bike rider’snegligence had dashed the stationed lorry.

8) The lorry driver or cleaner is a material witness for no eyewitness can be examined at that time regarding the manner ofaccident. The Court cannot ignore the basic principle in appreciationof evidence in motor accident claims that the accidents areaccidents and will not occur by notice for anybody to witness therebybound to appreciate like any other matter with reference to the proofby preponderance of probability, however in appreciation only fromthe material on record with attending facts and circumstances andinferences with experience of men and matters. From this the Courthas to keep in mind that no fool, apart from a man with any littleprudence will never, dashed a stationed vehicle, had he beconscious of the lorry on the road side in his proceeding. It is clearlyto say there is inadvertence or any negligence on the part of thedeceased, in the manner of accident that too showing with the bikewas intruding into the rear portion of the stationed lorry. The onlything is to be considered is whether there were any blinking lights. Ifat all there was any blinking and signal lights, the rider of the bikecould have been noticed the stationed lorry. The M.V.I. reportthough not before the Court there is nothing even from the sceneobservation report and rough sketch but for showing there are fieldsand choultry and near to bus stop; of any street lights or any other lighting. From these facts, it can be arrived that, there is negligenceon the part of the lorry driver also. It is not the case of the dieselwas exhausted and vehicle could not be moved, but for sayingengine oil exhausted. The accident is on the national highway. Thenational highway is not meant for vehicles to park as they are baylines and parking places on the highways and the parking of thevehicle on the road side even is against the rules. Thereby eventaken for arguments sake there were any signal lights with littlevisibility that too for the accident happened in the darkness subjectto any lights. No doubt, the bike rider of the two wheeler must havethe front head light had he be conscious in his driving he could haveaverted the accident.

9) Having regard to the above, it is just to fix the contributorynegligence on the part of the lorry driver in parking the lorry on theroad side of 30%. Had there been nothing of the signal lightsincluding from Ex.B-2 scene observation report, the Court couldarrive 50% contributory negligence. Further, the facts show fromwhat is discussed supra, particularly from Ex.B-2 that is deposed byR.W-1 with reference to it, it is just to arrive 30% negligence on thepart of the lorry driver to fasten liability on the owner and insurer ofthe lorry i.e., respondent Nos.1 and 2 of the claim petition to thatextent.

10) Now, coming to the quantum of compensation, the inquestreport also speaks with reference to the evidence of P.Ws 1 and 2that the deceased was a carpenter by avocation. A carpenter is askilled person, an artisan, with self-employment and not a merelabourer. Then, the prospective earnings can be taken intoconsideration as held by the Apex Court in Rajesh v. Rajbir1]Singh[[]. So far as the earnings concerned, there is no basis at allfor the Tribunal to take at Rs.4,500/- per month muchless at Rs.150/- per day by taking all 30 working days. As laid down by the ApexCourt in Latha Wadhwa vs. State of Bihar[[2]]in the absence ofproof of earnings Rs.3,000/- per month to be taken intoconsideration.

11) As the expression though two years after the occurrence,if the same sum of Rs.3,000/- is taken as earnings at the time ofaccident i.e., on 16.11.1997 with 50% prospective earnings increasefrom the deceased was a skilled worker as referred supra, it comesto Rs.4,500/- per month and even for the claim under Section 163-Aof the Act as laid down in Kishan Gopal V. Lala[[3]]of Rs.15,000/-per annum referred in Section 163-A of the Act to be read asRs.30,000/- per annum with 50% increase, it comes to Rs.45,000/-per annum and after deducting ½ towards personal expenses sinceunmarried, and not 1/3[rd] as taken by the Tribunal, it comes toRs.22,500/- per annum. So far as the multiplier concerned,considering the 50 as the age of mother of the deceased concerned,it is 13 as per Schedule III, it comes to Rs.2,92,500/- apart fromRs.7,000/- towards loss of estate and funereal expenses, it comes toRs.2,99,500/- rounded to Rs.3,00,000/- and 30% negligence of thelorry driver therein comes to Rs.89,850/- rounded to Rs.90,000/- isthe compensation the claimant/4[th] respondent entitled.

12) No doubt, it is the contention of the learned counsel for theclaimants that once, there is a contributory negligence of the lorrydriver also, it comes as vehicle in use even stationed on the roadside and this Court cannot decide for the claimants need not proveany negligence and even there the deceased bike rider in negligencethat contributed, it is not open to raise by lorry owner and insureragainst whom the claim filed for the entitlement of the compensationunder structured formula.

13) It is not a hit and run case. It is the bike rider deceaseddashed while riding the bike the stationed lorry with blinking lightsfrom which major part of negligence is of deceased as discussedsupra. Still, the claimants say they are entitled to total compensationagainst stationed lorry owner and insurer and the Court cannot go todecide contribution by deceased to apportion the liability.

14) Before discussing the further facts, it is necessary tostate the scope of the provisions of the Motor Vehicles Act, 59 of1988, amended by Act, 54 of 1994 and further amended by Act, 39 of2001. The Act contains 14 chapters and 2 schedules with rules andnotifications, Central Rules and State Rules including of theA.P.M.V.Rules, 1989; of which the chapters 10 to 12 are mainlyrelevant for purpose of adjudicating the lis. It is needless to say, thechapters 10 to 12 are not only inter-related but also interlinked.

14(a). For example-In Chapter XII- Section 165, speaks-constitution of claims Tribunal, Sections 167 with non-obstanteclause r/w 143 of Chapter X of the Act speak on the option toproceed under the Workmen Compensation Act, 1923 or under theMotor Vehicles Act, 1988, irrespective of what is contained in theWC Act, for workman injured or died in the course of employmentand where negligence of driver if deceased or injured need not evenbe gone into but for to show the accident occurred while in use of thevehicle and in the course of employment for the statutory liability ofAct policy as per Sections 147&149 of the Act, in so far as the driverand for public carriage-conductor or ticket collector (Section 147(1)proviso(i) a, b (c-leave about representative of goods in a goodscarriage)) unless shown for claim of more to Act liability, if policy iscomprehensive(Section 147(1) proviso(ii) - vide National Insurance Company Vs. Prembhai Patel and another[[4]]Sanjeev KumarSamrat Vs. National Insurance Company[[5]]& National Insurance Company Vs. Mastan and another[[6]].

14. (b). The claim before the Tribunal needless to say is eitherfinal claim under Section 166 (of Chapter XII) with interim measureunder section 140 or final claim under Section 163-A (chapter XI) orinterim measure under Section 161(chapter XI) as the case maybe.

14. (c). Once a claim is made under Section 140 (chapter X)for interim compensation, final claim under Section 163-A (chapterXI) won’t lie, but for under Section 166 (of chapter XII). Further in aclaim under Section 166, claim under Section 140 can also bemade; but in a claim under Section 163A, claim under Section 140cannot be made. The claims either under Chapter XI or underChapter XII shall be by third parties and not owner of vehicle or-person permitted by owner. Whether claim under Chapter Xunder Section 140 can be made by owner of vehicle or personpermitted by owner for injuries and by his legal representativesin case of his death is a matter in dispute to decide, moreparticularly from the overriding effect given to the chapter X-with non obstanti clause in Section 144 of notwithstandinganything contained in any other provisions of the Act or of anyother law for the time being in force.

14. (d). The claim for hit and run cases (of Chapter XI) coveredby Section 161 also says provisions of section 166 shall apply tomake such applications. It speaks from Section 165 that there is nobar to make application for hit and run cases before the Tribunal, butfor to say from reading of Section 163 of formulation of the specialscheme by the Central Government with the authority who has toadjudicate such claims for recommending and granting reasonablecompensation, which need not confine to the sums fixed in Section161. There are certain an expression on either side in saying (i) it

gives concurrent jurisdiction on one side also from reading of Section168 with speaks subject to Section 162 and not of Section 163 orSection 161 & (ii) it gives no jurisdiction on other side from theSection 163 as a special provision to prevail (known as solatiumscheme,1989) even not provided with non-obstante clause of specificexclusion. However, a close perusal of the Sections 161 with 162and also Section 163 by keeping together shows that Sections 161and 163 each deals with different type; to say Section 161 deals withfixed sum of Rs.25,000/- for death and Rs.12,500/- for grievous hurtinjuries, whereas Section 163 deals with the solatium scheme,1989under which thereis no rider to recommend only of Rs.25,000/- fordeath and Rs.12,500/- for grievous hurt injuries; for the enquiryofficer (Revenue Sub-divisional Officer or Tahsildar as the case maybe) can recommend more than that in Form III read with Clause 21of the scheme. When Section 161(3) is intended to immediate relief(like in Section 140 in a claim under Section 166(1)) before theTribunal and such grant by claim petition is not a bar forrecommending and awarding final compensation on application madeas per the solatium scheme of 1989 by the authorities after givendeduction of any amount awarded and paid under Section 161 of theAct-vide observations of this Court in MACMA No.148 of 2009 &MACMA No. 2072 of 2011.

14. (e). As it also speaks like in Section 140, for claim underSection 161 or application under section 163 as per section 162,amount recovered to be adjusted/refunded in the event of final claimfor compensation filed and allowed under Section 163-A or 166 of theAct.

14. (f). Further Sections 146-159 of Chapter XI speakcompulsory insurance coverage and statutory and contractualliability of insurer to indemnify the insured for third party risk, once policy covers the risk irrespective of breach of policy terms andconditions, save those are not fundamental a breach, insolvency ofinsured (section 154) and its consequences, death of insured is not abar to survival of cause of action (section 155). Likewise sections165-175 are also the general provisions with some of whichapplicable respectively to Chapter X and XI.

15. Chapter XII of the Act:

15. (a). Section 168 of the Act reads as under:

“1.On receipt of an application for compensationmade under section 166, the Claims Tribunal shall, aftergiving notice of the application to the insurer and aftergiving the parties (including the insurer) an opportunityof being heard, hold an inquiry into the claim or, as thecase may be, each of the claims and, subject to theprovisions of section 162 may make an awarddetermining the amount of compensation which appearsto it to be just and specifying the person or persons towhom compensation shall be paid and in making theaward the Claims Tribunal shall specify the amountwhich shall be paid by the insurer or owner or driver ofthe vehicle involved in the accident or by all or any ofthem, as the case may be:

Provided that where such applicant makes aclaim for compensation under section 140 in respect ofthe death or permanent disablement of any person, suchclaim and any other claim (whether made in suchapplication or otherwise) for compensation in respectof such death or permanent disablementshall bedisposed of in accordance with the provisions ofChapter X.

2. The Claims Tribunal shall arrange to delivercopies of the award to the parties concernedexpeditiously and in any case within a period offifteen days from the date of the award.

3. When an award is made under this section, the person who is required to pay any amount in terms ofsuch award shall, within thirty days of the date ofannouncing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as theClaims Tribunal may direct.”

15. (b).Sections 169 and 176 speak of the summary procedure and as per C.P.C. (subject to rules[[7]]made under Section176 or 164 of the Act) and powers of the Claims Tribunal in inquiryunder Section 168 (supra) and Section 170 speaks of the power ofthe Tribunal in directing for impleading of insurer with right tocontest, where in the course of enquiry the claims tribunal hassatisfied that there is a collision between the person making theclaim and the person against whom the claim is made or the personagainst whom the claim is made has failed to contest the claim, indirecting.

15. (c). Sections 165 and 175 speak for constitution of claimstribunals by State Government and bar of civil Court jurisdictiontherefrom, for adjudicating upon claims for compensation in respectof accidents involving the death of, or bodily injury to, personsarising out of the use of motor vehicles including under Sections 140and 163-A or damages to any property of a third party so arising, orboth.

15. (d). Section 166(1) speaks application for compensationarising out of the accident in the nature specified in Section 165(1)that-an application for compensation may be made- (a) by a personwho sustained injuries or (b) by the owner of the property; or (c)where death has resulted from the accident, by all or any of thethem on behalf of all or for the benefit of all legalrepresentatives of the deceased; or (d) by any agent dulyauthorised by the person injured or all or any of the legalrepresentatives of the deceased, as the case may be. Sub-section(2) of Section 166 speaks of jurisdiction of the tribunal whereaccident occurred or where the claimant/s reside/s or carries on business or where the defendant resides and in such form with suchparticulars prescribed. It speaks in the application under Section166, the interim compensation claim can even included as a separatepara before verification of contents and signature of claimant/s.Section 166(4) speaks that the claims tribunal shall treat any reportof accidents forwarded to it under Section 158(6) as an applicationfor compensation under this Act.

15. (e). Sections 171 & 172 speak powers of Tribunal to awardinterest on compensation and compensation costs. Section 173speaks right of appeal (to read with Section 170 for Insurer and withOrder 41 CPC as per the settled expressions). Section 174 speaksfor recovery of the compensation awarded (needless to say it can beexecuted as a civil court decree and drawing of a decree from theaward is a must). The provisions supra are incorporated in chapterXII of the Act.

16. Chapter XI of the Act under the title insurance of motorvehicles against third parties:

16. (a). Section 163-A incorporated by the Amended Act, 54 of1994 speaks as a special provision as to payment of compensationon structured formula basis speaks that:

1. Notwithstanding anything contained in this Act or any otherlaw for the time being in force or instrument having the force of law,the owner of the motor vehicle or the authorized insurer shall beliable to pay in the case of death or permanent disablement dueto accident arising out of the use of motor vehicle,compensation, as indicated in the second schedule, to legal heirsor the victim, as the case may be.

The explanation speaks permanent disability shall have thesame meaning and extend as in Workmen’s Compensation Act,8/1923;

2. In any claim for compensation under Section(1), theClaimant shall not be required to plead or establish that thedeath or permanent disablement in respect of which claim hasbeen made was due to any wrongful act or neglect or default ofthe owner of the vehicle or vehicles concerned or of any other person.

3. The Central Government may, keeping in view the cost ofliving, by notification in the official gazette, from time to time amendthe Second Schedule-(kishan Gopal Vs Lala-2014(1)SCC-244).

16. (b). Section 163(b) speaks that where a person is entitledto claim compensation under Section 140 and under Section 163-A,he shall file the claim under either of sub-sections and not underboth.

16. (c). Sections 161 to 163, provisions relating to hit and runmotor accident cases as referred supra, no way require repetition.

17. Now, coming back to the relevant provision-Section 140 of the Act under the heading liability without fault in certaincases out of Sections 142 to 144 of the chapter-X.

“Section 140(1): Where death or permanent disablementof any person has resulted from an accident arising outof the use of a motor vehicle or motor vehicles, theowner of the vehicle shall, or, as the case may be, theowners of the vehicles shall, jointly and severally, beliable to pay compensation in respect of such death ordisablement in accordance with the provisions of thissection.

(2) The amount of compensation which shall be payableunder sub- section (1) in respect of the death of anyperson shall be a fixed sum of twenty - five thousandrupees and the amount of compensation payable underthat Sub-section in respect of the permanentdisablement of any person shall be a fixed sum oftwelve thousand rupees.

-(3) In any claim for compensation under Subsection(1), the claimant shall not be required to plead andestablish that the death or permanent disablement inrespect of which the claim has been made was dueto any wrongful act, neglect or default of the owneror owners of the vehicle or vehicles concerned or ofany other person.

-(4) A claim for compensation under sub section (1)

shall not be defeated by reason of any wrongful act,neglect or default of the person in respect of whosedeath or permanent disablement the claim has beenmade nor shall the quantum of compensationrecoverable in respect of such death or permanentdisablement be reduced on the basis of the share ofsuch person in the responsibility for such death orpermanent disablement.

(5) Notwithstanding anything contained in Sub-section(2), regarding the death or bodily injury to any personfor which the owner of the vehicle is liable to givecompensation for the relief he is liable to paycompensation and any other law for the time being inforce.

Provided that, the amount of such compensationshall be given under any other law shall be reducedfrom the amount of compensation payable under thisSection or under Section 163-A.

18. In this Section 140(5) given with overriding affect toSection 140(2) and the expression used is negative of the fact thatthe owner of the vehicle would be additionally liable to paycompensation under any other law for the time being in force subject,however, to the condition has been laid in the proviso appendedthereto, that the amount of such compensation to be given under anyother law should be reduced from the amount of compensationpayable there under or under Section 163A. Having regard to the factthat no procedure for refund or adjustment of compensation (like in)Section 140 and 161 from the amount of compensation payable underthe award on the basis of fault liability under Section 166 of the Act(as expressly been provided for) has been provided for in relation tothe proceedings under Section 163A of the Act, it must be held thatthe scheme of the provisions under Section 163A and 166 aredistinct and separate.

19. Where in Chapter XI, Section 158(6) is also by theAmended Act,54/1994 incorporated of the information regarding accident involving the death or bodily injury recorded or reportcontemplated by a police officer in charge of a police station. Sub-section (1) is also incorporated, which speaks report received by thetribunal to take as a claim petition. It is also to say in this contextthat the report to receive as the claim for compensation by thetribunal is under what provision as to under Section 140 or 163A or166 concerned, it is by virtue of incorporation of Section 166(4) bythe Amended Act that, the tribunal shall treat the report as anapplication for compensation under this Act and not specificallyunder Section 166 it is only to take as is appropriate, to say even itis hit and run case even under Sections 161 and otherwise eitherunder Section 163A or under 166 if any also under Section 140 as itappears there from, though there is no direct authoritative expressionin this regard-including from-Jai Prakash Vs. NIC-2010 ACJ 455 &Rajesh Vs. Ranbir Singh-2013 ACJ 1403.

20. From the above provisions of the Act, Section 140 isincorporated in Chapter X, Section 163A is incorporated in ChapterXI and Section 166 is incorporated in Chapter XII. It is furthernecessary to mention that among these chapters X to XII of theprovisions supra, the wording of Section 140(3) is with self samewording of Section 163-A(2), however, there is no similarwording of Section 140(4) in Section 163-A to take away right ofdefence specifically like in Section 140(4). It is to say, in a claimfiled under Section 140 or 163A, the claimant shall not berequired to plead and establishthe death or permanentdisablement relating to the claim were due to wrongful act,neglect or default of owner or owners of the vehicle or vehiclesconcerned or any other person. A close reading of thisprovision speaks the claimants are not required to plead orprove negligence of the deceased or injured as well as negligence of the person owned the vehicle against whom theclaim is made or in case of more than one vehicle involved ofnegligence of any one of them or composite or contributorynegligence as the case may be of the vehicles drivers or otherperson.

21. So far as the claim under Sections 140 and 163A isconcerned, it is as stated supra clearly provided by Sections163-B & 141 that claim can be filed under these sections by anyperson to mean under either of the sections and not under both.It clearly provides that, though a person who filed applicationunder Section 140 is entitled to file an independent applicationunder Section 166 with claim therein or simultaneously or latersubject to these provisions as the case may be; once applicationfiled under Section 140, another application under Section 163-Ais not maintainable. To say, in so arranging the sections withinthe respective chapters are to achieve the respective purposesand there from so far as claim under Section 163A concerned,there is no requirement and proof of fault even not an interimmeasure.

22. Similarly, from reading of Section 168 r/w 166 of theAct, Section 168(1) speaks the claim under Section 166 indetermining subject to provisions of Section 162 in the award,the amount of compensation appears it to be justand specifyingthe person or persons to whom compensation shall be paid andthe amount which shall be paid by the insurer or owner or driverof the vehicle involved in the accident or by all or any of them asthe case may be. It indicates the determination specificallyincluding to the extent of liability in claim under Section 166 onfault liability from pleading and proof. Whereas such rider isnot there for Section 140 and 163A from what is stated supra inSection 163A(2) and 140(3). A close reading of these provisions in the three chapters (leave about sections 167 r/w 163A or 166)the compensation that can be claimed under Workmen’sCompensation Act for death or bodily injury under that Act,anything contained in that Act the claimants are entitled tocompensation may claim such compensation under either ofthese two Acts but not under both indicate that even the claimunder Section 140 is an interim measure with a right to entertainan efficacious claim under faultliability later under Section 166as a final measure; whereas the claim under Section 140 even aninterim measure as supra again the claim under Section 163Awon’t lie but for if at all under Section 166. Whereas, a claimunder Section 163-A as a final measure with no proof of faultonce made no claim again can be made under Section 166. Itappears from said arrangement also of Section 140 is incorporated inChapter X-of totally no fault liability-on proof of accident while vehiclein use, where as Section 163A is incorporated in Chapter XI-of semifault liability-on proof of accident while vehicle in use claimant isentitled to compensation, however it does not prohibit the respondentto raise plea of negligence or fault of injured/deceased or his or hisvehicle driver contributory or composite negligence for no similarprohibitory clause in Section 163A similar to Section 140(4) andneedless to say Section 166 is incorporated in Chapter XII-of totallyfault liability from said combined reading of the three provisions ofthe three chapters in Juxtaposition, more in particular noticing thedifference between Section 140(3&4) with Section 163A(2) detailedsupra.

23. In this regard, if two applications are filed under boththe provisions, one under Section 163A and other under Section 166,both cannot be, being final measure proceedings one under proof offault and the other without proof of fault respectively cannot beproceeded with simultaneously but for the claimant to opt before commencement of enquiry as per the expression of the Apex Court

in Oriental Insurance Co. Ltd. Vs Hansrajbhai V. Kodala[[8]]. It is tosay both being final remedies cannot be simultaneously proceededbut to opt by claimants only one of the two to proceed. It was alsoconfirmed by the three judges’ bench expression of the Apex Court inDeepal Girishbhai Soni and Ors. v. United India Insurance Co.[9]Ltd., Barodaat page 405 para 57. Subsequent to the above, itwas held by the Division Bench of this Court in Bhupathi Prameela Vs Supt. Of Police, Vizayanagaram[[10]]that since theM.V.Act provisions to claim compensation by victims of accidentsfrom the object of the Act meant to benefit the claimants being thesocial legislation and even both Section 163A and Section 166quoted in the claim application, for technicalities won’t come in theway to render substantial justice between the parties, the Court cantake the application as filed under Section 166 which is beneficial tothe claimants.

24. In fact, but for to say from the above as to sections163-A and 166 are both independent and meant for getting relief byinvoking anyone of these. As the claim is undisputedly filed undersection 163A and accordingly proceeded by the tribunal and also theappeal against which filed under section 173 of the Act r/w Order 41C.P.C. from the provisions of C.P.C. are applicable even to theappeals under M.V.Act as per the settled law of the Apex Courtincluding from the latest expression in this regard in Ranjana Prakash V. Divisional Manager[[11]].

25. Now it is to be seen whether section 163A is on faultliability or not from section 166 is undisputedly on fault liabilityspecifically to plead and prove. Even Section 163A speaks theclaimants need not plead and prove the fault or wrongful act, the

general principles under the law of torts giving a right to the otherparty that is the driver, owner and insurer against whom the claim ismade to plead and prove any wrongful act or negligent act of thedeceased/injured or the vehicle in which deceased/injured wastravelling or the opposite vehicle driver concerned, in establishingself negligence of deceased/injured or composite negligence orcontributory negligence of the drivers of both vehicles respectively. It is because to say or to decide section 163-A is with any element offault liability need not be decided solely based Section 163-A enablesthe claimant to maintain a claim without pleading or proving negligentact or wrongful act. It is also to be taken into consideration to say onfault liability or tort from the opposite parties right under the generallaw of torts from the general principles to attract the claim on thegrounds of self negligence of the deceased/injured or compositenegligence of both the vehicles if involved or the claimants/injuredand the other persons or contributory negligence of drivers of bothvehicles if involved. A combined reading of these provisions in thesethree chapters supra communicate that such defence not being madeavailable so far as section 140 of the Act under chapter X concernedas it is only an interim measure and such right to oppose the claimon merits is available in a efficacious claim to be made underSection 166. So the opposite parties right so to plead and proveapart from the claimant`s duty to plead and prove the wrongful act ornegligent act required by law and remedy available there. In so faras Section 163-A of the Act concerned, if that right is to be takenaway, there will be no remedy to the opposite party contestants tothe claim even there is negligence or wrongful act on the part of theinjured/deceased in respect of the claim or the vehicle in which hewas travelling or the opposite vehicle concerned. It is thus to saythough under Section 140 that right is impliedly taken away, so far assection 163A concerned that right is impliedly provided. It is also for

the reason that all these provisions are incorporated in three differentchapters and section 140 is a first ladder from which there is a rightto step up to the second ladder whereas section 163-A is only asingle step ladder and as such under Section 166 the duty to pleadand prove wrongful or negligent act on the claimants and to defend inthis regard by the owner/insurer respondents to the claimautomatically there, not there under Section 163-A for the claimantsfor no duty to plead or prove, like in section 140 for an interimmeasure that is not taken away in Section 163A so far as thedefence concerned for the reasons that section 140 and section 163-A respectively used the same wording in sub-sections (3) and (2) ofthe sections respectively one is an interim measure and the other isa final measure and as such so far as section 163-A is concerned itis though not on absolute fault liability, not on absolute no faultliability. As the opposite parties right is impliedly inherent from thegeneral law of torts to defend and prove the wrongful act or negligentact in seeking non-liability or contributory negligence or compositenegligence as the case may be, for not taken away statutorily by thewording of Section 163-A of the Act, like in Section 140 of the Actwhere by its wording it is taken away statutorily. This conclusion nodoubt lends support from the recent two judge bench expression ofthe Apex Court in National Insurance Corporation Ltd., Vs.Sinitha[[12]]-wherein it was held by referring to the earlier two judgebench expression of the Apex Court in Hansrajbhai V. Kodala(supra) and in answering in affirmative on the aspect of claim forcompensation under Section 163A of the Motor Vehicles Act can bedefeated either by the owner or by the insurance company bypleading and establishing that the accident in question was based onthe contributory negligence of the offending vehicle. It was observed-that Section 140(3) and Section 163A(2) both are parimateria provisions and there is no provision corresponding to Section 140(4)in Section 163A and thereby the claim for compensation underSection 163A held is fault based liability from the contributorynegligence or fault negligence of deceased/claimant or disabledvictim in causing the accident compensation may be reduced onsuch proof. However, the onus to prove contributory negligenceremain on the defence in opposing the claim under Section 163A i.e.the owner and insurer can defend the claim and the Hansrajbhai V.Kodala (supra) did not decide that determination of compensationunder Section 163A is based on no fault liability principle. The claimfor compensation raised in Section 163-A need not be based onpleadings or proof of claimants showing absence of contributorynegligence, but for onus to proof of contributory or composite or totalnegligence of injured/deceased or of his traveling vehicle driver; lieson the shoulders of the owner or insurer, opposing and defending theclaim to so establish in discharge of the burden lies on them. It wasobserved for the conclusion that where claim cannot be defeated onaccount of contributory negligence then such provision would fallunder no fault liability principle. It is thereby as per Section 140(4),both claim and defence are precluded from raising any ground offault and whereas Section 163-A is an independent provision withnon-obstinate clause having over riding effect over all otherprovisions of the Act. It is also a rationale behind it, in saying asfault liability principle from where large compensation amountinvolved or compensation amount is likely to be high, it is legitimatethat insurance company is not fastened with liability when offendingvehicle suffered fault (wrongful act, neglect or doubtful) under alleged act. In Minu B.Mehta v. Balkrishna Ramchandra Nayar[[13]], it washeld that the right to receive compensation can be only against aperson who is found to compensate due to the failure to perform a

legal obligation. The general law applicable is the common law andlaw of torts. After the expression, the MV Act,1939 was amended byAct, 47 of 1982 incorporating Section 92-A with the concept ofpayment of compensation without proof of fault or negligence ofowner or driver of the vehicle by the claimant/s. Therefrom, inGujarat State Road Transport Corp. Vs. Ramanbhai Prabhatbhai[[14]]it was held that Section 92-A is incorporated as aclear departure from the usual common law principle of claimant/s toprove negligence of owner or driver of the vehicle to claimcompensation against them. In fact in same line to Section 92-A ofthe Act,1939, in the new Act,1988, Section 163-A was incorporatedby the amended by Act, 54 of 1994, besides no fault liability interimmeasure provided by Section 140 and equally by Section 161 in theAct,1988. In K.Nandakumar Vs. Managing Director, Thanthai Periyar Transport Corp. Ltd.,[[15]]it was held that payment ofcompensation on no fault basis cannot be rejected even if the personmaking the claim was responsible for such permanent disablement.It is to say, K.Nandakumar supra is under no fault liability interimmeasure provided by Section 140 of the Act,1988. It is later inHansrajbhai V. Kodala (supra) it was held referring to Section163-Aof the Act on its scope that, the non-obsentee clause in Section163-Ain computation of compensation under structured formula, simplyexcluded determination of compensation on the principle of faultliability under Sections 166 &168. The said provision does not permita person to place a premium upon his own fault and make the insurerpay for the same. The expression was in point of view of the victim.It no way speaks in direct terms that, negligence of the victim cannotbe decided by allowing the insurer and owner – being the oppositeparties to the claim to defend and to fix any contributory negligenceon the deceased. However, it is important to notice that after Hansrajbhai and before Sinitha, where correctness of the lawlaid down in Hansrajbhai under Section 163A came forconsideration on reference made, was answered by the threejudge bench expression in Deepal Girishbhai Soni (supra) in theaffirmative. While so answering, it was held that though bothSections 166 and 163A are final proceedings, under Section 166 onfault liability, the duty is on the claimants to plead and prove wrongfulor negligent act of opposite party to get higher compensation,whereas under Section 163A on no fault liability, there is no duty onthe claimants to plead and prove wrongful or negligent act ofopposite party to get compensation under the structured formula. Itdid not specifically even say the opposite parties right to defend inthis regard by the owner/insurer respondents to the claim ofnegligence or fault or contribution on the injured/deceased or theirvehicle driver, available under Section 166 is not there and takenaway under Section 163-A. Even for so holding it was notspecifically considered referring to the Section 140(3) and Section163A(2) of both are pari-materia provisions and there is no provisioncorresponding to Section 140(4) in Section 163-A and thereby theclaim for compensation under Section 163-A held is fault basedliability from the contributory negligence or fault negligence ofdeceased/claimant or disabled victim in causing the accidentcompensation may be reduced on such proof, that was in factreferred and answered in Sinitha supra. But for that, both theexpression in Sinitha and in Deepal Girishbhai Soni (supra)confirmed law laid down in Hansrajbhai (supra). In fact on thisaspect that Deepal Girishbhai Soni was not referred in Sinithawhile holding Section 163A is founded on fault liability principle,correctness of the law in Sinitha was referred to a larger benchin United India Insurance Company Vs Sunil Kumar[[16]]and it is pending.

pending.

26. In fact in Deepal Girishbhai Soni, it was observed in paras 39 to 42 that- “Section 163A was introduced in the Act by way of asocial security scheme. It is a code by itself. Section 140of the Act dealt with interim compensation but by insertingSection 163-A, the Parliament intended to provide formaking of an award consisting of a pre- determined sumwithout insisting on a long-drawn trial or without proof ofnegligence in causing the accident. The Amendment was,thus, a deviation from the common law liability under theLaw of Torts and was also in derogation of the provisions ofthe Fatal Accidents Act. The Act and the Rules framed bythe State in no uncertain terms suggest that a new devicewas sought to be evolved so as to grant a quick andefficacious relief to the victims falling within the specifiedcategory. The heirs of the deceased or the victim in termsof the said provisions were assured of a speedy andeffective remedy which was not available to the claimantsunder Section 166 of the Act”.

27) Thus, from a combined reading of the provisions (supra)with reference to the law as laid down in Sinitha, confirmingHansrajbhai V. Kodalaincluding with reference to DeepalGirishbhai Soni (supra) that for the efficacious and as final reliefunder Section 163-A that can be maintained even negligence is onthe part of the victim/claimant for there is no need of proof requiredmuch less plea, but for proof of accident while the vehicle in use, asa deviation from general and common law principle of burden on theclaimant to plead and prove negligence of the other side and with nofault of victim/claimant; however, it no way speaks from saidcombined reading in juxtaposition of these provisions that oppositeparties are prohibited from taking defence plea and prove anynegligence of victim/complainant or their vehicle driver for non-liability or proportionate liability, as maintainability of claim is one thing proved or not proved or disproved as contemplated by thegeneral principles and as defined in Section 3 of the Indian EvidenceAct is other thing. Leave apart, even in case of negligence of thevictim once claim is maintainable under Section 163-A to plead andprove, there is no duty on the claimant/s and they can ignore theirnegligence and maintain a claim, but for the controversy as to does ittake away the opposite party’s right to plead and prove under thecommon law but for such deviation is only to the extent of exemptingthe complainant from duty to plead and prove to avail quick relief- there is in this regard a reference made in-UIIC Vs. Sunil Kumar[[17]]and the same is pending before the larger bench of the Apex Court.The reference pending is also on correctness of UIIC Vs. ShilaDatta[[18]]under Section 170 of the MVAct, on rights of Insurer asappellant in view of conflict with NIC Vs. Nicolletta Rohtagi.[[19]]

28) Thus, from the above, though the claimants need not pleadand prove negligence of the deceased or anybody, that will not takeaway the right of the opposite party ie., respondents to the claimpetition to plead and prove contributory negligence of the deceased. In fact as the facts show there was a triple riding. Instead of the bikemeant for double riding and the manner of accident shows the mainnegligence on the deceased. When such is the case and also fromthe latest three Judge bench expression of the Apex Court in Pawan Kumar V. Har Kishan Dass Mohan Lal[[20]]the Court is bound todecide the contributory negligence in apportioning the liability thoughso far as composite negligence concerned in the claims where thedeceased or injured is not responsible, the liability can be fixed eventhere is composite negligence of two vehicles drivers and one of thevehicle driver even not impleaded being they joint tort feasers, forliability can be fastened against any one of the joint tort feasers with

remedy open for the said tort feaser for the apportionment of liabilityand to seek contribution from the other joint tort feaser thereof. Hereas referred supra, there is a main contributory negligence on the partof the deceased and it is not a case of composite negligence. Thus,the Court has to decide and apportion the liability.

29) It is needless to say the remedy of the claimants is leftopen to proceed against the bike owner and insurer if there is bikeowner, personal accident risk coverage by the bike policy if any. Otherwise, even the deceased was not owner of the bike, he stepsinto the shoes of the owner of the bike and cannot be considered asa third party to claim compensation against the bike owner andinsurer unless personal accident coverage is there as expressed bythe Apex Court in Ningamma V. United India Insurance Co. Ltd,Dhanraj V. New India Assurance Co. Ltd.[[21]]and Oriental Insurance Co. Ltd. V. Rajani Devi[[22]]. This aspect is covered byearlier expression of this Court in The New India Assurance Co.Ltd. V. Vuyyuru Veera Venkateswaramma (MACMA No.1548 of2007) and M.A.C.M.A. No.2072 of 2011. Accordingly, point No.1 isanswered.

POINT No.2:

30) In the result, the appeal is partly allowed by fixingcontributory negligence of deceased bike rider at 70% and ofrespondents 1 and 2 (owner and insurer) of the stationed lorry withblinking lights at road side which is not meant for parking at 30% andconsequently reducing the compensation from Rs.4,00,000/-awarded by the Tribunal against the lorry owner and insurer toRs.90,000/- with interest at 7.5% p.a. The 2[nd] respondent/insurer,shall pay or deposit the same within one month from the date ofreceipt of a copy of this order and needless to observe that if anything already permitted to withdraw by the claimants, the same isto be deducted out of the compensation, since awarded to claim therest by filing cheque petition without need of permission petitionbefore the Tribunal and if any excess amount of the insurer lying, thesame is to be refunded to the insurer on their filing cheque petitionwithout need of permission petition with accrued interestrespectively. The award of the Tribunal in all other respects holdsgood. No order as to costs.

31) Miscellaneous petitions, if any pending in this appeal, shallstand closed.

Date: 30-12-2014NOTE:L.R. copy to be marked. (b/o) ksh _______________________

Dr. B. SIVA SANKARA RAO, J

[1]2013(4)ALT 35(SC)[2]2001 (8) SCC 197[3](2014)1 SCC 244[4]2005 (6)SCC 172=2005 ACJ -1323[5]2013 ACJ -1[6]2006 (2)SCC 641[7]See APMV Rules[8](2001 (5) SCC 175)=2001 ACJ 827 (SC)[9][(2004) 5 SCC 385 : AIR 2004 SC 2107][10]2010 (4 ) ALD 531 (DB)[11]2011)(8) Scale-240[12](2012) 2 SCC 356[13]1977 ACJ 118 (SC)[14]1987 ACJ 561 (SC)[15]1996 ACJ 555 (SC)[16]2014(1)SCC680[17]2014 (1) SCC 680.[18]2011 (10)SCC 509.[19]2002 (7) SCC 456.[20](2014)3 SCC 590

[21]2005 ACJ 1[22](2004)5 SCC 384