JUDGMENT
I.A. Ansari, J.
1. These two appeals have arisen out of the award, dated 21st December, 2004, hereby two claim cases, namely, M.A.C. Case Nos. 35/2000 and 36/2000 have been disposed of by the learned Member, Motor Accident Claims Tribunal, Dimapur.
2. By this common judgment and order, I propose to dispose of both the appeals, for, on the request of learned Counsel for the parties, both the appeals have been heard together inasmuch as the same have arisen out of the same accident and the findings in any of the two appeals may affect the outcome of the other appeal.
MAC Appeal No. 3(K) 2005
3. This appeal has arisen out the claim application for compensation, which gave rise to M.A.C. Case No. 35/2000 aforementioned.
4. The material facts and the various stages, which led to the M.A.C. Appeal No. 3(K)/20O5 aforementioned, may, in brief, be stated as follows:
(i) The appellant No. 1 herein, namely, Shri Chandra Singh, made an application under Section 166 of the Motor Vehicles Act, 1988 (in short ‘the Act’), seeking a sum of Rs. 6,20,670 as compensation for the injuries suffered by him, his case being, in brief, that on 17th June, 1997, when he was driving his truck, loaded with cement, the truck met with an accident at Makhan, in Senapati District of Manipur, due to failure of the brake and as a result of the said accident, he sustained grievous injuries and became disabled. Pending disposal of the application made under Section 166, the claimant also made an application under Section 140 of the Act seeking payment of compensation on the basis of no-fault to the tune of Rs. 25,000. In course of time, the learned Tribunal framed the following six issues for determination:
Issues
1. Whether the claim petition is maintainable in the present form?
2. Whether the claimants are involved in the accident and sustained grievous injuries and became permanently disabled?
3. Whether the accident took place due to rash and negligence of the driver of the vehicle No. NL-05-A/2401 (Tata)?
4. Whether the driver of the offending vehicle was having valid and effective driving licence at the time of accident? And whether the vehicle had all the requisite documents at the material time?
5. Whether the claimant is entitled to any compensation? If so, to what amount, and payable by whom?
6. Whether claimants are earning if so, to what amount per month?
(ii) When the evidence was brought; on the record to the effect that the said accident had taken place due to rash and negligent driving of the said vehicle by its driver, i.e., the present claimant-appellant himself, the appellant filed a petition under Section 163A of the Act seeking to amend his claim application from one under Section 166 to Section 163A. The amendment, so sought for, was allowed. The learned Tribunal, however, having reached the finding that the said accident had taken place due to fault on the part of the present claimant-appellant No. 1, concluded that the present appellant was not entitled to receive any compensation inasmuch as a wrong-doer, according to the learned Tribunal, cannot be permitted to claim compensation for injuries suffered by him due to his own fault. With the conclusion so reached, the learned Tribunal held that the claim application made by the claimant-appellant under Section 163A was not maintainable inasmuch as the said accident had taken place due to the fault on the part of the claimant-appellant himself. On the basis of the conclusion so reached, the learned Tribunal dismissed the claim application and it is this dismissal of the claim application, which stands impugned in the present appeal.
5. I have heard Mr. T.B. Jamir, learned Counsel for the appellants, and Mr. B.N. Sharma, learned Counsel, appearing on behalf of the respondents.
6. Presenting in the case on behalf of the claimant-appellant, Mr. T.B. Jamir, learned Counsel for the appellant, has submitted that the learned Tribunal’s conclusion that the application made by the claimant-appellant under Section 163A was not maintainable on account of the fact that the said accident had taken place due to the fault on the part of the claimant-appellant is incorrect in law, for, Section 163A, contends Mr. Jamir, permits filing of a claim application seeking compensation even by a person; whose own fault had led to the accident.
7. Support for his above submission is sought to be derived by Mr. T.B. Jamir from the case of Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala and Ors. ; RitaDevi (Smt.) and Ors. v. New India Assurance Co. Ltd. and Anr. and Union of India v. Saraswati Dev Nath reported in II (1995) ACC 188 : 1995 (2) GLT 117.
8. The submission, so made on behalf of the claimant-appellant, is seriously disputed by Mr. B.N. Sharma, learned Counsel for the insurer-respondent, on two grounds. It is contended by Mr. Sharma that Section 163A does not permit a wrongdoer, to seek compensation and viewed from this angle, when it was claimant’s own fault as a driver, which had led to the accident, the claimant could not have applied for award of compensation under Section 163A. The second ground of attack on the appellant-claimant’s plea that his application under Section 163A was maintainable is that a person, who earns annually more than Rs. 40,000 is not legally entitled to make any application under Section 163A and since the claimant’s own statement made in the claim application and also the evidence on record revealed that the claimant’s monthly income was Rs. 5,000, it meant that the annual income of the claimant-appellant was Rs. 60,000 and his application was, therefore, not sustainable and was rightly rejected by the learned Tribunal.
9. Support for his contention that as a wrong-doer or as a person, whose own driving had been the cause of the accident, the claimant-appellant is not entitled to any compensation and the conclusion reached, in this regard, by the learned Tribunal is correct, reliance is placed by Mr. B.N. Sharma, learned Counsel for the insurer-respondent, on National Insurance Co. Ltd., Tirupur v. R. Mohan and R. Murthy reported in II (1995) ACC 484 (DB) : 1996 (1) TAC 390; Jayashri Vijyasinghrao Khalat and Ors. v. Bhagivatlal Attarchandand Ors. reported in II (1997) ACC 139 (DB) : 1996 (1) TAC 513 and United India Insurance Co. Ltd. v. Bhupinder Singh reported in II (1997) ACC 201 : 1996 (1) TAC 415 J and K).
10. For the purpose of sustaining his submission that a person, who earns more than Rs. 40,000 annually, cannot file an application under Section 163-A, Mr. B.N. Sharma has placed reliance on Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala and Ors. (supra); Deepal-Birishbhai Soni And Ors. v. United India Insurance Co. Ltd. Board, and Narshiji Nagaji Majirana v. Mangilal Anuram Bishnoi and Ors. .
11. From the rival submissions made before me on behalf of the parties, two vital questions, which fall for determination in the present appeal, are as follows:
(i) Whether a person, whose own wrongful act, negligence or default caused the accident or formed the cause of the accident, can maintain an application, under Section 163A, claiming compensation?
(ii) Whether a person, whose annual income is more than Rs. 40,000, is entitled to make an application, under Section 163A, claiming compensation?
12. Since the answers to the two questions framed above may determine the fate of the present appeal, let me take up, first, these two questions for discussion and decision.
Question No. 1.
(i) Whether a person, whose own wrongful act, negligence or default caused the accident or formed the cause of the accident, can maintain an application under Section 163A?
13. While considering the above aspect of the matter, it is pertinent to bear in mind that the source forming legal basis, for, payment of compensation can be traced to the law of torts. Subject to statutory modifications to the rules of common law, a right to claim compensation for tortuous act arises, under the common law, only when the person, proceeded against or against whom the claim is made, is proved to have failed to perform a legal obligation causing injury to any other person or to have committed an act of omission or commission causing legal injury to the person lodging the claim.
14. As a precursor to the present Motor Vehicles Act, 1988, the Motor Vehicles Act, 1939, provided a statutory mechanism for enforcing the rights and obligations flowing under the common law. Notwithstanding such statutory support provided to a person claiming compensation, what is, however, crucial to note is that if a person was not legally liable to pay any compensation, the statutory mechanism, conceived under, and provided by, the Motor Vehicles Act, 1939, did not make the person proceed against liable to pay compensation except in situations and to the extent to which the statute made a specific departure, in this regard, from the principles governing tortuous liability under the common law.
15. The question as to whether proof of fault was a condition precedent for sustaining a claim for compensation under the Motor Vehicles Act, 1939, came to be considered by the Apex Court in Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. . In Minu B. Mehta (supra), the Bombay High Court had taken the view that the fact of an injury resulting from the accident involving the use of a car, on the public road, is the basis of liability under the Motor Vehicles Act, 1939, and that it is not necessary to prove any negligence on the part of the driver. Even the Andhra Pradesh High Court had held in Haji Zakaria v. Naoshir Cama , that the insured and, consequently, the insurer is liable to compensate a third party dying or getting injured on account of the use of the insured vehicle at a public place irrespective of the fact whether the death or injury and disablement had been caused by rash and negligent driving or not.
16. Disagreeing with the above views expressed by the Bombay High Court as well as the Andhra Pradesh High Court, the Apex Court pointed out in Minu B. Mehta (supra) that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and that the concept of owner’s liability without any negligence is opposed to the basic principles of law. Held the Apex Court, in Minu B. Mehta (supra), that no legal right arose, under the Motor Vehicles Act, 1939, to claim compensation against the insurer or the insurer unless the person, who sought award of compensation, proved that the accident, leading to the injury or death, was caused due to wrongful act, default or neglect on the part of the insured or his servants.
17. Before a person can be made liable to pay compensation for any injuries and damage, which have been caused by his action, it is necessary, noted the Supreme Court in Minu B. Mehta (supra), that the person suffering damage or injury should be able to establish that he has some cause of action against the party responsible. Explaining as to when a cause of action may arise out of actions for wrongs under the common law or for breaches of duties laid down by statutes, the Apex Court, in Minu B. Mehta (supra), made it clear that in order to succeed in an action for negligence, the plaintiff must prove (1) that the defendant had, in the circumstances, a duty to take care and that duty was owed by him to the plaintiff and that (2) there was a breach of that duty and that as a result of the breach, damage was suffered by the plaintiff.
18. Clarified further the Supreme Court, in Minu B. Mehta (supra), that the owner’s liability arises out of his failure to discharge a duty cast on him by law and that the right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation and that when a person is not liable legally, he is under no duty to compensate anyone. Pointed out the Apex Court, in Minu B. Mehta (supra), that the Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor vehicular claims, but the general law applicable was still the common law and the law of torts and if, under the law, a person becomes legally liable, then only the person, who suffers injuries, is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation, which appears to be just the plea, concluded the Supreme Court in Minu B. Mehta (supra), that a Claims Tribunal is entitled to award compensation, which appears to it to be just, when it is satisfied, on proof of injury to a third party arising out of the use of a vehicle a public place without proof of negligence, if accepted, would lead to strange results.
19. Made it clear the Apex Court in Minu B. Mehta (supra), in no uncertain words, thus, “The concept of owner’s liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and, thus, get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the linchpin to recover compensation.”
20. From a careful reading of what were observed and laid down in Minu B, Mehta (supra), it becomes abundantly clear that the Apex Court, in Minu B. Mehta (supra), rejected the view that for sustaining a claim for compensation under the Motor Vehicles Act, 1939, it was enough to prove that the person concerned had received injury or died in an accident arising out of use of the vehicle at a public place and that proof of negligence was not necessary. In no uncertain words, the law laid down, in Minu B. Mehta (supra), was that notwithstanding the fact that the provisions for insurance of vehicles had been made in the Motor Vehicles Act, 1939, the owner can be made liable to pay compensation only if there was proof of fault on his part either on account of the fact that he had driven the vehicle rashly or negligently or that he had allowed the vehicle to be driven by a person, who had driven the same rashly or negligently.
21. The above prominently pronounced position of law continued to govern the field till the Motor Vehicles Act, 1939, came to be amended by the Amendment Act 47 of 1982 incorporating therein Section 92-A, which read as follows:
92A. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any 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 whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
22. It may be carefully noted that it was Section 92A, which introduced for the first time the concept of payment of compensation without proof of fault or negligence on the part of the owner or driver of the vehicle, for, Sub-section (3) of Section 92A laid down, in clear terms, that the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. The object and reasons for such noticeable shift in the settled legal position were summarized by the amended Act 47 of 1982 as follows:
10 Having regard to the nature of circumstances in which road accidents take place, in a number of cases it is difficult to secure adequate evidence to prove negligence, Further, in what are known as ‘hit-and-run’ accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions, first, for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle, and secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown.
23. It was, in fact, in Gujarat State Road Transport Corporation v. Ramanbhal Prabhatbhai and Anr., that the Apex Court, taking note of the fact that under Sub-section (3) of Section 92A, the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim had been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person, recognised, for the first time, in unequivocal terms, that the provisions of Section 92A of he Motor Vehicles Act, 1939, introduced a clear departure from the common law that a claimant must establish negligence on the part of the owner or driver of the vehicle in order to enable him to receive compensation for the death or permanent disablement caused on account of use of the vehicle.
24. In Gujarat State Road Transport Corporation (supra), the Court held a pedestrian entitled to recover damages regardless of the fact as to whether he could prove negligence on the part of the owner or driver of the vehicle involved in the accident or not. Observed the Court in Gujarat State Road Transport Corporation (supra), in this regard, “Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all.
25. Taking note of the language of Sub-section (3) of Section 92A, held the Supreme Court, as indicated hereinabove, thus, “This part of the Act is clearly a departure from the usual common law principle that a claimant should establish, negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of country stands modified.”
26. I may pause here to point out that the Indian Motor Vehicles Act, 1914, which was the first enactment relating to motor vehicles, in India, was replaced by the Motor Vehicles Act, 1939, which consolidated and amended the law relating to the Motor Vehicles Act in India. I may also point out that the Motor Vehicles Act, 1939, which was based on the Fatal Accidents Act, 1855, still recognized award of compensation solely based on the law of torts. The year 1956 saw, for the first time, establishment of the Motor Accident Claims Tribunal in India, which were established to expedite the process of determination of cases for compensation arising out of motor vehicular accidents. However, proof of negligence remained embodied as a condition precedent for grant of compensation under the Motor Vehicles Act, 1939. It was Section 92A of the Motor Vehicles Act, 1939, which introduced the first departure from the usual common law principle that a claimant should establish negligence on the part of the owner or the driver of the motor vehicle before claiming any compensation for the death or permanent disability caused on account of a motor vehicular accident.
27. Notwithstanding the departure from the usual common law principle as indicated hereinabove, doubts still persisted if a person, whose own fault had led to an accident, could maintain a claim for compensation on the principle of ‘no-fault’ under Section 92A. In order to determine if a claim for compensation could have been made on the principle of ‘no-fault’, under Section 92A, by a person, whose own wrongful act, neglect or default had been the cause of accident, one may take note of Sub-section (4) of Section 92A which read thus:
(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 whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablment be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
28. A bare reading of Section 92A clearly shows that a claim for compensation on the basis of no-fault, envisaged by Section 92A, could not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement, the claim has been made. In short, thus, even the person, who himself was the cause of the accident or of the injury suffered by him, became entitled to receive compensation on the principle of ‘no-fault’ under Section 92A.
29. Be that as it may, a Division Bench of the Madras High Court in K. Nandakumar v. Managing Director Thantai Periyar Transport Corporation reported in I (1992) ACC 615 : 1992 (2) TAC 515 (Mad.) held that even for the purpose of invoking Section 92A, it was for the claimant to prove that he was not in any manner responsible for the accident. In other words, the Court held that in the cases, where the injured or dead was himself responsible for the accident, question of paying compensation on no-fault basis even under Section 92A did not arise at all. Rejecting this view, the Apex Court, in K. Nandkumar v. Managing Director Thantai Periyar Transport Corporation, , observed and held as follows:
4. By reason of Sub-section (1) of Section 92A, an absolute liability is cast upon the owner of a vehicle to pay compensation in respect of death or permanent disablement resulting from an accident arising out of its use. By reason of Sub-section (3), the claimant is not required to plead or establish that the death or disablement was due to a wrongful act or neglect or default of the owner or any other person. Sub-section (4) is in two parts. The first part states that a claim for compensation under the Section is not defeated by reason of any wrongful act, neglect or default of the person, who had died or suffered permanent disablment. The second part states that the quantum of compensation is not to be diminished even if the person who had died or suffered permanent disablement bore some responsibility for his death or disablement.
5. There was, therefore, on a plain reading of Section 92A, particularly the first part of Sub-section (4) thereof, no basis for holding, that a claim there under could be made only if the person who had died or suffered permanent disablement had not been negligent. The provision being clear, no external aid to its construction, such as the Statement of Objects and Reasons, was called for.
30. For what has been discussed above, the observations made in Nandakumar (supra) by the Apex Court and the law laid down therein, it becomes abundantly clear that the decision of the Apex Court in Minu B. Mehta (supra), wherein the Apex Court had held that in the absence of proof of fault on the part of the owner or the driver of the vehicle, no claim for compensation under the Motor Vehicles Act, 1939, could be entertained, was rendered before Section 92A was introduced into the statute and that after the introduction of Section 92A, particularly, in view of what Sub-section (4) of Section 92A stated, a claim under Section 92A, on the principle of no-fault, could be made even by a person, whose own wrongful act, neglect or default, had formed the cause of the accident. In short, a claim for compensation under Section 92A was maintainable as long as the victim is shown to have suffered death or permanent disablement and it was immaterial, in such a case, whether it was the victim’s own wrongful act, neglect or default, which had caused the said accident. To put it differently, a claim for compensation, on the basis of no-fault under Section 92-A, was maintainable even if the victim had suffered death or permanent disablement on account of his own wrongful, act, neglect or default.
31. It is worth noticing that Section 92A of the Motor Vehicles Act, 1939, stood replaced by Section 140 of the Motor Vehicles Act, 1988, when the latter statute came into force. Since Section 92A is replaced by Section 140 and Subsection (4) of Section 140 embodies the same provisions as were contained in the Sub-section (4) of Section 92A, it logically follows that even after coming into force of the Motor Vehicles Act, 1988, the Apex Court’s decision in K. Nandakumar (supra), still holds the field and the effect is that regardless of the fact as to whether the person, injured or killed in a motor vehicular accident, was himself, partially or wholly, responsible for the accident, compensation under Subsection (4) of Section 140 is payable to the victim or his legal representatives, as the case may be.
32. Turning to Section 163A, which is the real subject-matter of controversy at hand, it may be pointed out that no provision, such as the one that we have, now, in the form of Section 163A, existed in the Motor Vehicles Act, 1939. No such provision existed even in the Motor Vehicles Act, 1988, when this Act initially came into force. As a matter of fact, Section 163A has been introduced by amendment Act No. 54 of 1994 with effect from 14th November, 1994 as against the fixed minimum interim compensation awardable, on the principle of no-fault, under Section 140, which merges, in terms of Section 141, in the final award to be made on the basis of ‘fault liability’ under Section 166.
33. Section 163A allows a victim of a motor vehicular accident to obtain a final award of compensation based in the Structured Formula contained in the Second Schedule to the Act and such compensation may be obtained without the claimant being required to plead or establish that the injuries sustained or death caused was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other persons. The compensation finally payable under Section 163A is, however, materially different from the minimum prescribed compensation payable under Section 140, though both these provisions dispense with the proof of negligence on the part of the owner of the vehicle or vehicles concerned or of any other persons.
34. In fact, the present Motor Vehicles Act, 1988, provides an option to the claimant to obtain interim compensation under Section 140 being the minimum prescribed compensation until final adjudication of his claim, under Section 166, on the basis of fault-liability’. In the final award, which may be so reached, would get merged the interim compensation, if any, already received by the claimant under Section 140. The other course, which the claimant can opt for, is to obtain a final award of compensation on the basis of Structured Formula as depicted in the Second Schedule under Section 163A.
35. What is, now, worth noticing is that Section 163A does not incorporate a provision, such as the one, which we can notice in Sub-section (4) of Section 140, namely, that 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 whose death or permanent disablement the claim has been made.
36. Notwithstanding, however, the fact that Section 163A does not contain the provisions, such as the one, which Sub-section (4) of Section 140 embodies, what is of paramount importance to note is that Section 163A opens with a non obstante clause of extremely wide nature, namely, “notwithstanding anything contained in this Act or in any other law for the time being in force”. This non obstante clause shows that by inserting Section 163A, the Parliament intended to provide a mechanism for awarding compensation with the help of a pre-determined formula without insisting on proof of negligence. Section 163A has, thus, been introduced by way of a social security scheme and it is a Code by itself. Section 163A is an exception to Section 166 and takes within its sweep even those cases, wherein the victim’s own negligence leads to the accident.
37. In short, even whether the victim himself was responsible for the accident, he can, as an injured, or his legal representatives, when the victim dies in the accident, maintain an application for compensation under Section 163A and compensation cannot be refused by the Tribunal on the ground that the victim himself was responsible for the injury suffered by him or the death, which he met with.
38.1 may, however, point out that though Section 163A opens with a non obstante clause of extremely wide nature as indicated hereinabove and makes provisions for compensation available to even in those cases in which the victim’s negligence had been the cause of the accident, a Division Bench of Karnataka High Court held in Appaji v. M. Krishna and Anr. reported in II (2005) ACC 591 : 2005 (1) TAC 994 (Kant), that Section 163A was not intended to provide relief to those, who suffer in a road accident because of their own rashness, negligence or imprudent act. The views, so expressed, in Appaji (supra), goes contrary to a Division Bench judgment of the Gujarat High Court in New India Assurance Co. v. Munna Maya Basant reported in 2000 (1) TAC 397 (Guj.), wherein the Gujarat Hign Court took the view that non obstante clause appearing in Section 163 A permitted even the tortfeasor to claim compensation and that the Insurance Company can contest the claim only on the ground of total absence of a contract of insurance and not otherwise.
39. Setting at rest the controversy as to whether Section 163A would cover the cases, wherein negligence of the victim was the cause of the accident, the Apex Court in Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd. , observed thus, “We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen’s Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, ‘under the provision of the Act’, ‘provisions of this Act’, ‘under any other provisions of this Act’ or ‘any other law or otherwise’. In Section 163A, the expression ‘notwithstanding anything contained in this Act or in any other law for the time being in force’ has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and to the concept of social justice has been duly taken care of.”
40. In the face of the position of law, so clearly pronounced by the Apex Court in Deepal Girishbhai Soni (supra), there can be no escape from the conclusion that it is permissible even for a driver, whose own wrongful act, neglect or default might have formed the cause of the accident resulting into his own injuries, to maintain an application for compensation Section 163A. Considered, thus, it is clear that in the present case, the application made under Section 163A of the Act could not have been rejected merely on the ground that it was the claimant, whose negligence, as a driver, had caused, the said accident.
41. Let me, now, come to, and deal with, the question No. (ii), namely, whether a person, whose annual income is more than Rs. 40,000, is entitled to make an application, under Section 163A, claiming compensation?
42. While dealing with question No. (ii), it is of paramount importance to note that in National Insurance Co. Ltd. v. Hansrajbhai V. Kodala and Ors. (supra), a two-Judges Bench of the Apex Court held that the benefit of Section 163A can be availed of by a claimant by restricting his income at a slab of Rs. 40,000 which is the highest slab in the Second Schedule appended to Section 163A. In other words, in Kodala (supra), the view of the Supreme Court was that even a person, who earns more than Rs. 40,000 annually, can take the benefit of Section 163A by restricting his income to the slab of Rs. 40,000 and thereby dispense with the onus to prove wrongful act, neglect or default on the part of the driver or the owner of the vehicle concerned. This view of the Apex Court can be discerned from the observations, which run, thus, “However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab or Rs. 40,000, which is the highest slab in the Second Schedule which indicates that the Legislature wanted to give benefit of no-fault liability to a certain limit.”
43. Disagreeing, however, with the views expressed in Kodala (supra) that under Section 163A, even a person, whose annual earning is more than Rs. 40,000, can maintain a claim for compensation by restricting his income to Rs. 40,000 annually, a three Judges’ Bench, in Deepal Girishbhai (supra), has held, “However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs. 40,000 which is the highest slab in the Second Schedule which indicates that the Legislature wanted to give benefit of no-fault liability to a certain limit.”
44. From what has been observed and held above in Deepal Girishbhai (supra), it is abundantly clear that Section 163A can be resorted to by only that person, whose annual income is not above Rs. 40,000. In other words, a person, whose annual income is more than Rs. 40,000, is not eligible to make an application, under Section 163A, for compensation by restricting his income to the slab of Rs. 40,000.
45. In the backdrop of the eligibility criterion, which the Apex Court has laid down in Deepal Girishbhai (supra), when I revert to the facts of the present case, what becomes glaringly noticeable by the eyes is that there is no dispute that the claimant-appellant’s monthly income, according to what he himself had claimed, Rs. 5,000 per month and, hence, his annual income was more than Rs. 40,000. In the face of this undisputed finding, one has no option, but to hold, and I do hold, that the present application made under Section 163A was misconceived and could not have been maintained.
46. The impugned award, therefore, passed in M.A.C. case No. 35/ 2000, rejecting the claim application of the claimant-appellant made under Section 163A deserves no interference. The claimant-appellant No. 1 is, however, left at liberty to take recourse to such other provisions of law as may be available to him for remedy of his grievances.
MAC Appeal No. 4(K) 2005
47. In this appeal the claimant, was a handy-man in the vehicle, which gave rise to the claim for compensation in MAC case No. 36/2000. In the present appeal, the claimant’s grievance is that the sum of Rs. 25,000. awarded to him as compensation for the injuries sustained by him is grossly inadequate.
48. While dealing with the above grievance of the claimant-appellant, what needs to be noted is that though the claimant has deposed that he had suffered serious injuries and has not been cured, the fact remains, as the learned Tribunal too noticed, that the claimant remained in the hospital only for a day and even the doctor, who had, initially, certified that the claimant had suffered disablement to the tune of 75%, admitted, during the course of his cross-examination in the proceeding, that the certificate was given to him by examining the claimant on the very first day. There is not even an iota of materials on record to show that the claimant had suffered any injury of severe or grave nature. This position could not be assailed by the learned Counsel for the claimant-appellant.
49. Situated, thus, I have no hesitation in holding that even the amount of Rs. 25,000 granted by the learned Tribunal, as compensation to the claimant-appellant, was on the higher side.
50. This appeal has, therefore, no merit and the award, impugned in this appeal too, deserves no interference.
51. In the result and for the foregoing reasons, both these appeals fail and the same shall accordingly stand dismissed.
52. The parties are, however, left to bear their own costs.
53. Send back the L.C.Rs.