JUDGMENT
Prabir Kumar Samanta, J.
1. This appeal has been preferred by the claimants against the judgment and award dated 12.4.2001, passed in M.A.C. Case No. 125 of 2000, by the Motor Accidents Claims Tribunal, 4th Court of Additional District Judge at Alipore, South 24 Parganas.
2. The above claim case arose out of an application under Section 163A of the Motor Vehicles Act, 1988.
3. The facts giving rise to the aforesaid claim case are that on 10.10.1998, when the victim was sitting on the pillion and her husband riding a motor cycle, the offending vehicle which was coming from the opposite direction in a very rash and negligent manner knocked them down, as a result, both the victim and her husband were seriously injured and ultimately the victim succumbed to her injuries. The above claim petition was filed by the husband and three children of the couple.
4. The Claims Tribunal has passed an award for a sum of Rs 50,000 in favour of the claimants-appellants which has been challenged in this appeal. On the face of the said award, we are of the view that the Claims Tribunal has absolutely misdirected itself in making the said award. On its own finding, that the accident as alleged in the claim petition has not been proved by the claimants-appellants, it ought not to have passed an award for a sum of Rs. 50,000 by invoking the provisions of Section 140 of the said Act. This finding again that the accident did not at all occur on the face of the materials on record is absolutely perverse. Soon after the accident an F.l.R. was lodged with the concerned police station. The said F.l.R. has been produced and is a part of record of the proceeding. A relative of the victim also reported to the concerned police station about the said accident. These documents have been proved in evidence by the claimants-appellants which have been marked as Exhs. 9 (a) and 9 (b). On the face of the said documents, the finding that the accident as alleged by the claimants-appellants has not been proved by them, cannot be sustained. We, therefore, set aside the said finding and hold from the evidence of the parties and the material on record that the alleged accident has been proved by the claimants-appellants in the aforesaid proceeding.
5. It transpires from the material on record that the husband of the victim was not the owner of the motor cycle which he was riding with his wife sitting on the pillion. In course of hearing of this appeal, a question has been raised as to whether the husband of the victim since he was and/or is not the owner of the motor cycle, should be made liable for contributory negligence on his part in the cause of the said accident so as to apportion the amount of compensation between the insurer of the offending vehicle and the husband of the victim.
6. Mr. Krishanu Banik, learned advocate appearing on behalf of the claimants-appellants has seriously contended that in a proceeding under Section 163A the question of contributory negligence on the part of the victim and/or the claimants is not a relevant matter or factor for consideration for the purpose of determining the amount of compensation payable to the claimants-appellants because of the said accident.
7. In this regard reference may be made to the provisions of Section 163A(2) of the said Act which reads as under:
In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
8. Upon plain reading of the said provision it is clear that in any claim for compensation under Sub-section (1) of Section 163A of the said Act, it is not necessary to prove any wrongful act or neglect or default on the part of the offending vehicle. The consideration of the question of contributory negligence on the part of the victim and/or claimant would arise only for the purpose of showing that the owner of the offending vehicle was not liable for any wrongful act or neglect or default on his part. Since, such consideration is outside the scope of the provision of Section 163A(2) of the said Act, there is also no scope for consideration of the fact that the victim or her husband was guilty of any negligence on his/her part or had contributed to the cause of the accident. Upon consideration of the provisions of Sub-section (2) of Section 163A of the said Act, we are thus of the considered view that the issue as to the contributory negligence on the part of victim or the claimant is not a relevant fact to be gone into or a relevant factor to be taken into consideration in a proceeding that arises thereunder.
9. In support of our view, reference may be made to the case of National Insurance Co. Ltd. v. Malathi C. Salian 2003 ACJ 2033 (Kerala). The Full Bench of Kerala High Court has held in para 15 of the said report as under:
The liability to pay the compensation under Section 163A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163A. Section 163A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim naturally the claimants will have to lead evidence which would defeat the object and purpose of Section 163A. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or disablement occurred during the course of the user of the vehicle and the vehicle is insured the insurance company or the owner, as the case may be, shall be liable to pay the compensation. This is a statutory obligation. Claimant is, therefore, entitled to get legitimate amount on the basis of the structured formula based on the no fault theory from the insurance company or the owner or owners of the vehicle on the plea that the liability is joint and several.
10. A Division Bench of Bombay High Court in the case of Latabai Bhagwan Kakade v. Mohammed Ismail Mohd. Saab Bagwan , upon consideration of the object and purpose of introducing Section 163A has held that there is no question of owners of vehicles or insurance companies being allowed to lead any evidence to prove the negligence and/or contributory negligence on the part of the victim.
11. In arriving at such a conclusion the decision of the Supreme Court reported in Kaushnuma Begum v. New India Assurance Co. Ltd. , has been relied upon where it has been observed that no fault liability envisaged in Section 140 of the Motor Vehicles Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count.
12. So far as the no fault liability is concerned, there is no distinction between Sections 140 and 163A of the said Act. Only distinction envisaged in between the aforesaid two sections is that a claimant would be entitled to a statutory compensation as fixed under Section 140 while the compensation under Section 163A would be determined on the basis of structured formula as provided thereunder.
13. Similarly, a Division Bench of Gujarat High Court in the case of Ramdevsing V. Chudasma v. Hansrajbhai V. Kodala , has held that when the legislature has provided a no fault liability even under Section 163A by providing specific provision by way of Sub-section (2), there will be no question to prove fault of the victim. If the requirement is to prove fault of the claimants or the predecessors of the claimant, or no fault of the insured against whom claim is preferred, it would not make any difference between the claim under Sections 166 and 163A.
14. This judgment was though challenged in the Apex Court, but the decision so made on the question of contributory negligence on the part of the claimant or the victim in a proceeding under Section 163A, had not been interfered with.
15. In such view of the matter, it has become necessary to determine the just compensation on the death of the wife of the claimant-appellant No. 1 in the said accident. The Claims Tribunal has come to the finding that claimants-appellants have failed to prove the actual income of the victim at the relevant point of time. Before the Claims Tribunal, the employer of the victim has been examined who has proved categorically in his evidence that the victim used to draw a total sum of Rs. 2,500 per month on account of her salary and the travelling allowances. His evidence could not be shaken in the cross-examination by the insurer respondent. In spite of such evidence, the Claims Tribunal has come to such finding as the PW 2 had not produced the trade licence of his business. This finding by no stretch of imagination can be sustained. An employer may not have valid or proper licence for his business but that does not mean and prove conclusively that he does not pay remuneration to his employees. We, therefore, set aside the said finding. We accordingly hold, on the basis of the evidence, that the victim used to earn Rs. 2,500 per month at the relevant point of time.
16. Considering the fact that the victim is also the mother of three minor children, the claimants-appellant Nos. 2 to 4, we are of the view that the multiplier should be applied on the basis of the age of the victim and not on the basis of the age of her husband, the claimant No. 1. The age of the victim appears to be 35 years on the date of the accident from the post-mortem report as exhibited in the said proceeding. As per the structured formula as provided under Second Schedule to the said Act, the multiplier of 17 becomes applicable on the basis of the age of the victim on the date of accident which did not exceed 35 years. Thus, on such basis claimants-appellants would be entitled to a compensation for a sum of (Rs. 2,500 x 12) = Rs. 30,000 -Rs. 10,000 (1/3rd on account of personal expenses) = Rs. 20,000 x 17 = Rs. 3,40,000 to which the claimants-appellants would further be entitled to a sum of Rs. 9,500 on account of loss of consortium, loss to the estate and funeral expenses. Thus, the claimants-appellants would be entitled to a total sum of Rs. 3,49,500 which we round up to Rs. 3,50,000 for the convenience of calculation.
17. It is not in dispute that claimants-appellants have already received a sum of Rs. 50,000 and, therefore, the balance sum of Rs. 3,00,000 along with an interest at the rate of 9 per cent per annum from the date of filing of the application till payment would be payable to claimants-appellants. This amount shall be disbursed to the claimants-appellants Nos. 2 to 4 in equal shares. The aforesaid amount shall be deposited with the Claims Tribunal within a period of four weeks from date.
18. This appeal is, thus, disposed of. There will be however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties expeditiously.