CHANDRAKANTA TIWARI versus NEW INDIA ASSURANCE COMPANY LTD. & ANR. on 8 June 2020

1. Leave granted.

2. On 18.03.2004, an incident took place, by which the son of theclaimant, who allegedly was a pillion rider, was killed in a road accident.The Motor Accident Claims Tribunal, Dehradun (hereinafter referred toas ‘MACT’) after examining the evidence, came to the conclusion thatthe accident was due to the rash and negligent driving of respondentNo. 2, who was the owner of the motor vehicle and who was driving theaforesaid motor vehicle. The victim was aged 28 years. Coming to theconclusion that a salary of Rs.3,000/- per month would be adequate,with a deduction of one-third, and taking the multiplier as 8 dependantupon the claimant’s age, the MACT finally held the insurance companyliable to pay a total of Rs. 1.99 lakhs + 6 per cent interest thereon.

3. In the appeal filed before the High Court of Uttarakhand, bythe impugned order dated 28.12.2016, the High Court held that since theinsurance company denied that the deceased was only a pillion rider andstated that he was, in fact, driving the vehicle himself; also since theclaimant was not present at the spot; and since Shri Virender Bijalwan,respondent No. 2, who ought to have been called as he was the onlysurviving eye witness, not being called as a witness, therefore, provedfatal to the claim, as a result of which, the petition under Section 163A ofthe Motor Vehicles Act, 1988, would have to be dismissed. Further, theHigh Court also held that nothing was brought on record to show thatthe deceased was having a valid driving license. In this view of thematter, the appeal was allowed and the judgment passed by the MACTwas set aside.

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4. Shri N. K. Sahoo, learned counsel appearing on behalf of thepetitioner, has argued that the petition being filed under Section 163A, itis clear that the liability is ‘no fault’, as a result of which, it is not necessaryto prove the negligence or any rash and negligent driving on the part ofthe driver of the vehicle. He further argued that the multiplier of 8 is ex-Bfacie incorrect since it was taken on the basis of the claimant’s age andnot the victim’s age, stating that since the victim was only 28 years old,the multiplier should have been 17. He also argued that the High Courtwas wrong in placing the burden on the claimant, when MACT has heldthat, based on the examination and cross examination of the claimant,the facts could be elicited. Further, the validity of the driving licenceCunder Issues Nos. 2 and 3, was given up by the insurance company buttaken into account by the High Court.

5. Shri Anshum Jain, learned counsel appearing on behalf of theinsurance company, reiterated the High Court’s judgment and furtherargued that no fault liability under Section 163A is limited to Rs.1 lakh.DAt the relevant time, therefore, even if we were to uphold the MACT’sjudgment, the maximum that can be awarded on the facts of this case isRs.1 lakh.

6. Having heard learned counsel for the parties, we may onlyextract the order of the MACT as follows:E

“13. P.W. 1 Smt. Chandra Kanta Tiwari was cross-examined atlength on behalf of O.P. No. 2 i.e. Insurance Company and noneappeared to cross-examine her on behalf of the O.P. No. 1.Whatever cross-examination has been made on behalf of O.P.No. 2, it has again been proved that the deceased was the pillionFrider and O.P. No. 1 was driving the ill- fated vehicle at the timeof accident in a rash and negligent manner due to which hereceived grievous injuries which resulted into his death on thespot.

14. It will be relevant to mention here that no controverting evidenceGon this issue or on issue no. 2 has been adduced by any of theopposite parties though they have made the pleadings otherwisein their written statement hence it has not been proved on recordby any of the opposite parties that at the time of the accident, thedeceased was driving the vehicle, it is also relevant to mentionhere that according to written statement of O.P. No. 1, he himself H

sustained injuries in this accident and he has also admitted thedate, time and place of the accident. Therefore, it was legallyincumbent upon him to prove his case before the Tribunal as hewas the best person to make clear how this accident occurred butas no evidence has been adduced by the O.P. No. 1 in this regard,therefore, there is no reason to disbelieve the evidence adducedon behalf of the claimants by way of P.W.1.

15. Admittedly this petition has been moved u/s. 163A of the M.V.Act, therefore, legally the claimants are not supposed to provethe rash and negligent act of driving by O.P. No. 1 and in such apetition legally, the claimants are not required even to plead orestablish that the death, in respect of which the claim has beenmade, was due to any wrongly act or negligence or default of theowner driver of the vehicle or any other person and in such apetition, the owner of the vehicle or the authorised insurer is legallyliable to make the payment of compensation.”

7. So far as issues 3 and 4 are concerned, they read as follows:

“3. Whether at the time of accident the deceased was not havinga valid driving license?

4. Whether at the time of accident the OP No. 1 was not havinga valid driving license?”

8. The Tribunal then records in paragraph 17 that both the oppositeparties did not press these issues during arguments.

9. Finally, given that the deceased was aged 28 years and thatincome was not proved, income was taken to be Rs.36,000/- per annumminus one-third, which made it Rs.24,000/- per annum. The Multiplierwas taken to be 8, keeping in view the old age of the claimant andaccordingly, a sum of Rs.1,92,000/- was arrived at. In addition thereto,Rs.2000/- was given as funeral expenses, Rs.5000/- as loss of consortium,making it a total of Rs.1,99,000/- together with simple interest at the rateof 6 per cent per annum on this amount from the date of filing of theclaim petition up to the date of actual payment.

10. The High Court, by the impugned judgment, allowed the appealof the insurance company stating that the claimant, not being an eyewitness, could not possibly give evidence as to the accident that tookplace, as a result of which, the Section 163A petition would have to be A

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Adismissed. Also, nothing was brought on record to show that the deceasedwas having a valid driving license. This would also, therefore, take thecase outside the insurance policy, as a result of which, the appeal woulddeserve to be allowed on this ground also.

11. Section 163A reads as follows:

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163A. Special provisions as to payment of compensation onstructured formula basis.—

(1) Notwithstanding anything contained in this Act or in anyother law for the time being in force or instrument having theforce of law, the owner of the motor vehicle or the authorisedinsurer shall be liable to pay in the case of death or permanentdisablement due to accident arising out of the use of motorvehicle, compensation, as indicated in the Second Schedule, tothe legal heirs or the victim, as the case may be.

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Explanation.—For the purposes of this sub-section, “permanentdisability” shall have the same meaning and extent as in theWorkmen’s Compensation Act, 1923 (8 of 1923).

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(2) In any claim for compensation under sub-section (1), theclaimant shall not be required to plead or establish that thedeath or permanent disablement in respect of which the claimhas been made was due to any wrongful act or neglect ordefault of the owner of the vehicle or vehicles concerned or ofany other person.

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(3) The Central Government may, keeping in view the cost ofliving by notification in the Official Gazette, from time to timeamend the Second Schedule.

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12. A perusal of this provision would show that Shri Sahoo iscorrect in stating that the claimant need not plead or establish that thedeath in respect of which the claim was made, was due to any negligenceor default of the owner of the vehicle or of any other person.

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(emphasis supplied)

13. In this view of the matter, it is not relevant that the personinsured must be the driver of the vehicle but may well have been ridingwith somebody else driving a vehicle which resulted in the death of theperson driving the vehicle. The High Court, therefore, is clearly wrong H

in stating that it was necessary under Section 163A to prove thatsomebody else was driving the vehicle rashly and negligently, as a resultof which, the death of the victim would take place.

14. Further, it is also clear, as has been pointed out hereinabove,that so far as the driving licence aspect of the case is concerned, it wassquarely given up by the insurance company before the MACT, but thenutilised by the High Court to disentitle the claimant to relief. On thisground also, the High Court is incorrect.

15. Coming to the argument based on the maximum liability beingRs.1 lakh, this argument was never taken before in all the courts below,as a result of which, we do not allow the insurance company to take upthe point for the first time before us at this stage.

16. We would have restored the MACT’s judgment as it standsbut for the fact that there is a glaring mistake in the multiplier, as hasbeen pointed out by Shri Sahoo. The amount that will be paid will now bethe amount mentioned in the MACT’s judgment with the correction thatthe multiplier instead of being 8 is now 17. The interest figure also remainsthe same. As a result, the appeal stands allowed. The insurance companyis to pay the amount due to the claimant as per our judgment within aperiod of three months from today.

Divya Pandey

Appeal allowed.

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