JUDGMENT
A.P. Shah, J.
1. These writ petitions and connected first appeals involve common questions of law relating to interpretation and constitutional validity of Section 163-A of the Motor Vehicles Act, 1988, hereinafter referred to for the sake of brevity as ‘the Act’. The constitutional validity of certain other provisions of the Act is also sought to be challenged and since the questions are common in all the cases, they are being disposed of by this common judgment.
2. The Motor Vehicles Act, 1988 as amended by Motor Vehicles (Amendment) Act, 1994 came into force on 14.11.1994. Section 163-A of the amended Act provides for payment of compensation for death or injury suffered in a motor vehicle accident in accordance with a structured formula contained in the Second Schedule. Sub-section (1) of the said section says that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs of the victim, as the case may be. Sub-section (2) of the said section also provides that in any claim for compensation under that section, 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. Subsection (3) of the said section provides that the Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. By the Amending Act of 1994 the legislature has increased the compensation payable under Section 140 to Rs. 50,000 and Rs. 25,000. Subsection (5) has been added to the said section with a proviso whereby the amount of compensation paid under any law is to be reduced by the amount paid under Sections 140 and 163-A of the Act. Under the amended Section 166(2) application can be made in the Tribunal where the accident occurred or where the claimant resides or carries on business or where the owners of the vehicle reside. By Section 53 of the Amending Act, Sub-section (3) of Section 166 has been omitted and thus the limitation for lodging claim stands deleted.
3. On behalf of Mumbai Municipal Corporation (for short ‘Corporation’) it has been contended that Section 163-A of the Act is ultra vires Article 14 of the Constitution. It is contended that Section 163-A gives large sums as compensation without proving negligence or wrong and without proof of loss and, therefore, the said section is opposed to the basic principle of law as accepted in India. In this regard reliance is placed on the decision of the Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC). It is urged that the provision of ‘no fault liability’ in the nature of limited immediate humanitarian interim relief to a victim of accident or his dependants can be justified. Thereafter damages have to be proved in the normal course. Therefore, the limited relief under Section 92-A or Section 140 may be valid but Section 163-A which gives substantial sums as compensation without proof of negligence of the person from whom the amount is claimed, is wholly arbitrary and illegal. It is also contended that the Second Schedule abounds with mistakes and is totally unintelligible. In this connection the observations of the Supreme Court in U.P. State Road Trans. Corporation v. Trilok Chandra , were heavily relied upon. It is also contended that the provisions of the amended Section 166(2) which give a choice to the claimants of a forum where neither defendant resides nor cause of action arose are extremely harsh for defendants and arbitrary removal of limitation by deleting Section 166(3) exposes them to compensation claims even after lapse of several years.
4. On behalf of insurance companies who are appellants in the first appeals, it is urged that the concept of liability as envisaged under Section 163-A cannot be equated with no fault liability under Section 140 under Chapter X of the Act. It is contended that on true interpretation of Section 163-A it would be clear that what had been intended by the legislature was to provide for adequate compensation without going into long drawn procedure on the basis of predetermined formula, i.e., Second Schedule and it cannot be construed to mean that owners of the vehicles or authorised insurance companies cannot take up a plea of negligence or wrongful act on the part of the victim in causing the accident, i.e., to show that the victim himself has wrongfully caused the accident or is guilty of contributory negligence and, therefore, not entitled to claim compensation under the said provisions of Section 163-A. Thus the provisions of Section 163-A only dispense with the proof of negligence and not the right of the owners of the vehicle or the authorised insurance companies to prove that the deceased or the victim as the case may be was negligent and not the other party. It is contended that where former is negligent, there is no scope at all for himself to claim compensation from any other party for his own fault. It is emphasised that Section 163-A does not contain a clause similar to Sub-section (4) of Section 140 wherein it is, inter alia, provided that even where there is some negligence or default on the part of the victim the claim for compensation shall not be deducted/limited. Impliedly, therefore, the person from whom the compensation is claimed is entitled to prove the claimants negligence.
5. We do not see any force in any of these contentions. Prior to the insertion of Section 163-A by the Amending Act of 1994 the scheme for payment of compensation under the Act was broadly divided in three categories, viz.; (i) Section 140- For no fault liability in the case of death or disablement compensation amount of Rs. 25,000 and Rs. 12,500 respectively which now stands increased to Rs. 50,000 and Rs. 25,000; (ii) Section 161-In case of hit and run motor accidents, where the identity of the vehicle cannot be ascertained: compensation amount of Rs. 25,000 in case of death and Rs. 12,500 in the case of grievous hurt; and (iii) Section 166- Determination of compensation payable in pursuance of any right on the principle of fault liability. Section 163-A was inserted with a view to confer a right upon the victim or his heirs to claim from the owner/insurance company compensation for death or permanent disablement suffered due to accident arising out of use of motor vehicle, without having to prove wrongful act or neglect or default of anyone. In other words, if it is established by the claimants that the death or permanent disability was caused due to accident arising out of the use of the motor vehicle then they will be entitled for payment of compensation only in accordance with the structured formula in the Second Schedule. We hasten to add that in the case of Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, , it was held by the Apex Court that the compensation payable under Section 163-A as per the structured formula is in the alternative to the determination of compensation on the principle of fault liability and not in addition thereof.
6. It seems that the legislature has accepted the recommendation of the Law Commission of India in its 119th Report that the liability to pay compensation in every motor accident must be on no fault liability. It was observed that in the event of death of a victim of a motor accident and the consequent harm caused to his dependants, the question whether the person responsible for the action causing harm had committed a fault or it was an inevitable accident, is hardly relevant from the point of view of the victim or his/her dependants. The expanding notions of social security and social justice envisaged that the liability to pay compensation must be on no fault liability. The Law Commission’s report came in the wake of the recommendation made by the Apex Court that the compensation for motor vehicle accidents should be on no fault basis and the determination of the quantum must be liberal, since law values life and limb in a free country. The plight of the victims of motor vehicle accidents was highlighted by Chandrachud, C.J. in Motor Owners’ Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC), wherein his Lordship observed:
The victims of road accidents or their dependants are driven to wage a long and unequal battle against the insurance companies, which deny their liability on every conceivable variety of factual disputations from ‘who was driving the vehicle’ to ‘whose negligence was the sine qua non of the accident’. The delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes the sting out of the laws of compensation because, an infant child who seeks compensation as a dependant of his deceased father has often to await the attainment of majority in order to see the colour of the money. Add to that the monstrous inflation and the consequent fall in the value of the rupee: Compensation demanded say, ten years ago, is less than quarter of its value when it is received today. We do hope that the Government will apply itself seriously and urgently to this problem and find a satisfactory method of ameliorating the woes of victims of road accidents.
A similar view was also expressed by the Supreme Court in State of Haryana v. Darshana Devi 1979 ACJ 205 (SC) and Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC).
7. In March, 1990 a Committee to review the provisions of the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989 was set up by the Government of India and the said Review Committee in its report suggested several changes in the Act. The Review Committee considered that determination of the claim cases pending before the Claims Tribunal takes a long time. To obviate such delay, a proposal was made that early finalisation of compensation claims would greatly facilitate to the advantage of claimants, the vehicle owners as well as the insurance companies, if a system of structured compensation can be introduced. Under such scheme the affected party can have the option of his accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing his claim through the normal channels. The Review Committee felt that determination of cases takes long time and, therefore, under a system of structured compensation, the compensation that is payable for different classes of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of minor, loss of income on account of loss of limb, etc., can be notified and the affected party can then have option of accepting lump sum compensation under the scheme of structural compensation or of pursuing his claim through the normal channels. The report of the Review Committee was considered by the State Governments and comments were notified. The Transport Development Council also made recommendations for providing adequate compensation to the victims of road accidents without going into long drawn procedure, on the basis of age/income which is more liberal and rational. On the basis of the said recommendations, after considering the report of the Transport Development Council and the Review Committee the provision of Section 163-A was enacted for payment of compensation to road accident victims on the basis of a new predetermined structured formula.
8. It is apparent from the Second Schedule that the compensation payable under Section 163-A is based on relevant criteria for determining the compensation such as annual income, age of the victim and multiplier to be applied. In addition to the figure which is arrived at on the basis of said criteria, the Schedule also provides that amount of compensation shall not be ‘less than Rs. 50,000’. It provides for a fixed amount of general damages in case of death such as; (i) Rs. 2,000 for funeral expenses; (ii) Rs. 5,000 for loss of consortium if beneficiary is the spouse; (iii) Rs. 2,500 for loss to estate; (iv) for medical expenses supported by the bills, vouchers not exceeding Rs. 15,000. Similarly for disability in non-fatal accident para 5 of the Schedule provides for determination of compensation on the basis of permanent disability. Para 6 provides for notional income for those who have no income prior to accident at Rs. 15,000 per annum. There is also a provision for reduction of ‘/3rd amount of compensation on the assumption that the victim would have incurred the said amount for maintaining himself had he been alive.
9. The purpose of this section and the Second Schedule is to avoid long drawn litigation and delay in payment of compensation to the victims or their heirs who are in dire need of relief. Thus, the legislature has finally decided to give effect to the suggestions made by the courts in order to provide social security and instant relief to the victims and their heirs. It would be a complete travesty of justice to brand this salutary provision as violative of Article 14 of the Constitution as it is intended to provide much needed social security to the victims of the accidents and their relatives.
10. In our considered view, reliance placed on the case of Minu B. Mehta 1977 ACJ 118 (SC), is completely misconceived. In Minu B. Mehta’s case the Supreme Court while affirming the finding of the High Court that the motor vehicle accident which was the cause of death in that case had happened on account of negligence of the driver of the vehicle and hence damages were payable to the claimant therein, observed that the said finding was sufficient to conclude the judgment but the court felt that it was desirable to deal with the question of law that had been dealt with at considerable length by the High Court as to whether it was incumbent on the claimant to prove negligence on the part of the driver of the motor vehicle before he would be entitled to compensation. The High Court had in the course of its judgment after upholding that, the driver was negligent, observed that having regard to the changed conditions of the modern society where a large number of motor vehicles were put on road thus exposing innocent third parties to grave accidents very often resulting in injuries to their lives and limbs, it was necessary in public interest to take the view that proof of negligence was unnecessary on the part of the drivers of the motor vehicles before claiming compensation. The Supreme Court, however, opined that the above observation was inconsistent with the law of the land and that no damages could become payable without proof of negligence on the part of the driver of the motor vehicle involved in the accident. It was further observed that the provisions of Chapter VIII of the Act were merely procedural and had not altered the substantive law. The said decision in the case of Minu B. Mehta was rendered before Sections 92-A and 163-A were introduced into the statute and are of no assistance in interpretation of these sections. Moreover, the observations made by the Supreme Court in Minu B. Mehta’s case were held to be in the nature of obiter dicta in the subsequent decision of the Supreme Court in Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 AC.I 561 (SC).
11. Indeed, in a recent decision of the case of Kaushnuma Begum v. New India Assurance Co. Ltd., , the Supreme Court has now held that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. 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. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. Even apart from Section 140 of the Motor Vehicles Act, a victim in an accident which had occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply.
12. Much capital is sought to be made of the mistakes and anomalies in Second Schedule. In Trilok Chandra’s case , the Apex Court has noted that there are mistakes and anomalies in the Second Schedule:
We must at once point out that the calculation of compensation and the amount worked out in the Schedule suffer from several defects. For example, in item No. 1 for a victim aged 15 years, the multiplier is shown to be 15 years and the multiplicand is shown to be Rs. 3,000. The total should be Rs. 3,000 x 15 = Rs. 45,000 but the same is worked out at Rs. 60,000. Similarly, in the second item the multiplier is 16 and the annual income is Rs. 9,000; the total should have been Rs. 1,44,000 but is shown to be Rs. 1,71,000. To put it briefly, the Table abounds in such mistakes. Neither the Tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasise is that the multiplier cannot exceed 18 years’ purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies’ case (supra).
It is true that the Apex Court has highlighted the mistakes in the Second Schedule. However, the Supreme Court has also held that these mistakes are limited to actual calculations and not in respect of other items and compensation could be well awarded on the basis of the Schedule by applying correct multiplier.
13. In Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, , the Supreme Court has again taken into consideration all these mistakes and anomalies in the Second Schedule. However, the Solicitor General has assured the Apex Court, that amendment to the Central Act would be carried out. The Supreme Court, therefore, observed that it would be appropriate if the Central Government takes necessary action as early as possible under Section 163-A to remove the mistakes and anomalies.
14. Mr. Hegde, learned Counsel appearing for the claimants pointed out to us that there is an inbuilt multiplier in the Table to the Second Schedule which lays down figures of compensation in case of death, e.g., in case of death where the annual income is Rs. 3,000 compensation to be awarded is Rs. 60,000 and the inbuilt multiplier is 20 years for a person up to the age of 15 years. It is seen that this multiplier is common to all income groups in the same age group. If we accept the contention of Mr. Hegde the position that emerges is as per the chart annexed as ‘X’ hereto.
15. Mr. Hedge suggested that the multiplier which is given separately in the Second Schedule has to be read along with Note 5 which lays down disability compensation for non-fatal accidents-(a) in case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation; or (b) in case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. He submitted that there is no reference to multiplier at any other place in the Second Schedule for any other purpose. Thus according to him the multiplier given in the Second Schedule is only meant for the cases of disability in non-fatal accidents and it is not necessary to use the multiplier in case of death where the amount of compensation is worked out on the basis of inbuilt multiplier. We find much substance in the interpretation suggested by Mr. Hegde. We feel that if necessary clarification is issued by the Central Government in this behalf in Second Schedule it will be crystallised and determination of compensation would become easier. Mr. Desai appearing for the Union of India could not show how interpretation suggested by Mr. Hegde was wrong or unworkable. However, we feel that it is for the Centra] Government to issue appropriate clarification or make appropriate changes for the purpose of making the Second Schedule more effective and workable.
16. The challenge to the validity of the amended provision of Section 166(2) which gives choice of forum and deletion of Sub-section (3) of Section 166 specifying limitation for filing the claim is also without any substance. These matters are essentially matters of legislative policy and it is not open for the petitioners to attack amended provisions on the ground that they are likely to cause hardship or inconvenience to certain section of the people.
17. The only other question which now remains to be considered is when Section 163-A clearly stipulates that it is not necessary for the claimants to plead and prove negligence, would it be open for the owners of the vehicles/insurance companies to establish that the accident occurred due to negligence of the victim or he has contributed to the negligence. It is evident from the legislative history of Section 163-A that the section is in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment as per structured formula by way of compensation to the victims of accidents arising out of the use of motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficial purpose underlying the enactment in preference to a construction which tends to defeat the purpose. The object or purpose of introducing Section 163-A is to give compensation to the victims of the motor vehicles accidents or to their relatives, i.e., a fixed compensation on the basis of Table/Second Schedule without going into a long drawn trial. A combined reading of Sub-sections (1) and (2) of Section 163-A shows that the victim or his heirs are entitled to claim from the owners/insurance companies compensation for the death or permanent disablement suffered due to the accident arising out of the use of the motor vehicle without proof of any fault or negligence in contrast to Section 166 providing for getting compensation on the basis of fault liability where the claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. Thus Section 163-A lays down that if it is established by the claimants that the death or disablement was caused due to accident arising out of the use of the motor vehicle, then they will be entitled to receive compensation as per the Second Schedule as a matter of right without a long drawn trial. If we accept the interpretation suggested by the insurance companies it would mean that the claimants will have to necessarily prove the element of negligence on the part of the driver of the vehicle although the legislature has clearly stipulated that it is not necessary for the claimants to plead or prove negligence on the part of the driver of the motor vehicle because if the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default on the part of the victim or claimants, naturally the claimants will have to lead evidence in rebuttal to prove the negligence on the part of the driver of the motor vehicle. Surely the legislature did not intend to create such a situation as it would defeat the very object of introducing the provision of Section 163-A conferring a cheap, efficacious and speedy remedy on the claimants to claim compensation on the basis of no fault liability as per the structured formula contained in the Second Schedule. We are of the view that since the owner of the vehicle or insurance company is made liable to pay compensation irrespective of the fact whether the driver of the vehicle is at fault, 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.
18. The object of enacting Section 163-A and the Second Schedule is to avoid long drawn litigation and inordinate delay in payment of compensation to the victim or his heirs who are in dire need of relief. If such affected claimant opts for accepting the lump sum compensation based on structured formula, instead of a higher compensation to which he may consider himself entitled, he would get relief at the earliest. This no fault liability has been introduced on the basis of the suggestion of the Law Commission to the effect that the expanding notions of social security and social justice envisage that liability to pay compensation must be on ‘no fault liability’ as observed by the Apex Court in Ramanbhai Prabhatbhai’s case 1987 ACJ 561 (SC), i.e., “in order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents”. However, the law before insertion of Section 163-A was giving a limited benefit to the extent provided under Section 140 for no fault liability and determination of the compensation amount on no fault liability was taking a very long time. That mischief is sought to be remedied by introduction of Section 163-A and the delay is sought to be avoided to a large extent by affording benefit to the victims on structured formula basis. If it is held that the right of the owner of the vehicle or the insurance company to prove negligence or wrongful act or default of the victim is kept alive whole purpose of introducing of Section 163-A by the legislature will be frustrated. If this right is to be recognised as implied or to be read in the context of Section 163-A, then we do not think that there would remain any difference between Sections 163-A and 166.
19. In the case of Ramdevsingh V. Chudasma v. Hansrajbhai V. Kodala , a Division Bench of Gujarat High Court has categorically held that under Section 163-A the owner or insurance company cannot plead and prove negligence or default of the victim. The Division Bench observed:
From the above differences in Sections 163-A and 166 of the Motor Vehicles Act, the intention of the legislature becomes clear. Provision for compensation is a benevolent object of the legislature. To achieve that benevolent object, which had a number of hurdles to be crossed, the legislature has introduced Section 163-A in the Act. The fact remains that by the use of motor vehicle when the accident takes place the victim is either injured or may be fatal. If a breadwinner of the family is taken away or if he is made crippled, the family of the dependants are required to be continued to be maintained from the next day and thereafter. If the accident is fatal one and breadwinner in the family is the victim how the members of the family/dependants will get their bread? Does a solace satisfy the hunger or need of the person? Making necessary provision in the legislation like Section 166 has proved to be solace only as long drawn litigation takes place. To avoid the same and to provide instant and immediate relief as it appears from the Statement of Objects and Reasons and the report of the Committee, Section 163-A is introduced by the legislature to provide for immediate relief regardless of fault. This deviation from the common law is only with a view to adopt or reach the human need of the society. If we read that the owner of the vehicle or the insurance company is entitled to defend the claim by advancing proof of wrongful act or neglect or default of the victim as it is not specifically prohibited in Sub-section (2), then again, we are falling in the trap which the legislature has tried to avoid or get rid thereof of Section 166 of the Act. Introduction of no fault is as a part of social justice. For the purpose of achieving social justice, legislature has departed from usual common law. An additional benevolent provision is added in a beneficial legislation for award of compensation…”
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“The question of negligence is not required to be gone into. There be negligence or not but the involvement of the vehicle makes them liable. In substance, it can be said that the scope of Section 163-A is that as soon as the accident occurs, it is signing of the blank cheque by the owner of the vehicle drawn on the insurer of the vehicle endorsed in favour of the claimants to be filled in by the Tribunal bearing in mind the structure provided in the Second Schedule of the Motor Vehicles Act. On receiving the necessary information, the Tribunal shall decide the multiplier and come to the conclusion about the income and a figure will be filled in the cheque, meaning thereby, award may be passed. This discharges the social responsibility of the State. When it was before the legislature to add or not Section 163-A it has been made clear from the object that an adequate compensation to the victim of road accidents without going into long drawn procedures be provided. Hence, in the object, they have used the word adequate, while in the Act in Section 168 the word ‘just’ is provided. The word ‘adequate’ was used by the legislature in its ‘Statement of Objects and Reasons’ but did not transgress further in the section incorporated by the legislature. Instead of either just or adequate compensation be provided, legislature predetermined the same and placed in the statute book the Second Schedule for the same. As we have discussed earlier, ‘predetermined’ means decided in advance. Therefore, the question of it being ‘just’ or ‘adequate’ does not remain open or at large for the Tribunal to decide and has given an example at that stage. The legislature has behaved in a specific manner and based on experience and catena of decisions of High Courts and Apex Court has introduced a Schedule providing for a predetermined compensation. For an application under Section 163-A, forum is provided under Section 165 of the Act but procedure is not prescribed as it is one prescribed under Section 168 when an application under Section 166 is filed. This suggests that a summary procedure is contemplated for award on the basis of predetermined compensation provided in Schedule. Central Government has made it open vide Sub-section (3) of Section 163-A to amend the same to keep pace with the varying cost of living in the country. On a proper reading of Section 163-A, an application made thereunder is required to be decided on affidavits and the documents annexed thereto. There will be no scope for any long drawn trial as there would be no issues which need to lead evidence by either of the parties. Vide Sub-section (2) of Section 163-A the question of negligence will not be an issue for deciding the said application. So far as the question of income is concerned, the same can be decided on affidavits supported by documents if there are any. Income would be personal knowledge of the claimants having necessary evidence to support the same. So far as the question of age is concerned, it will be also within the special knowledge of the claimants and the same can be supported by them by documentary evidence be it by opinion of doctor who performs the post-mortem. So far as the injuries are concerned there will be necessary medical evidence to support the same. Such material evidence may be supported by affidavit of the doctor. Therefore, in our opinion, in view of the provisions of Section 163-A there is no scope for any trial and recording of evidence is intended to be dispensed with and can be dispensed with if the requirements of Section 163-A are satisfied.
20. In Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, , after a detailed examination of the scheme of Section 163-A the Apex Court observed as under:
Lastly, for interpretation and construction of Section 163-A, we would refer to its heading and language. The heading is ‘Special provisions as to payment of compensation on structured formula basis’. At the outset, we would make it clear that for interpretation of the words of section the language of the heading cannot be used to control the operation of the section, but at the same time being part of the statute it prima facie furnishes some clue as to the meaning and purpose of section [Re: K.P. Varghese v. I.T.O. (1982) 1 SCR 629 at 647]. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability. Section also begins with non obstante clause ‘notwithstanding anything contained in this Act or any law for the time being in force’. This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle.
In view of the foregoing discussion and in the light of the above observations of the Supreme Court we have no hesitation in rejecting the contention that it would be open for the insurance companies or owners of the vehicles even under Section 163-A to prove negligence or contributory negligence on the part of the victim.
21. In the light of the above observations we now proceed to deal with individual cases as under:
Writ Petition No. 1453 of 1999
22. In this case accident occurred on 26.10.1995 wherein the deceased sustained injuries and died. The deceased was 37 years of age and was working with Yash-want Sahakari Sakhar Karkhana Limited and earning Rs. 3,594.22 per month, i.e., above Rs. 40,000 p.a. The truck was owned by the respondent No. 1 and was insured with respondent No. 2. These facts are not controverted by the respondents. The necessary documents like school leaving certificate and salary certificate have been produced on record. In terms of provisions of Section 163-A the amount of compensation comes to Rs. 4,09,500. However, the petitioners have confined their claim for compensation to Rs. 4,00,000 excluding the compensation payable as per Note III under Second Schedule. Accordingly, we direct the respondent Nos. 1 and 2 to pay to the petitioners a sum of Rs. 4,00,000 plus Rs. 2,000 towards funeral expenses, Rs. 5,000 towards loss of consortium (to spouse) and Rs. 2,500 towards loss to the estate; total Rs. 4,09,500 with interest at the rate of 9 per cent per annum from the date of application till realization. We also award costs of Rs. 5,000 to the applicants. The insurance company is directed to deposit the said amount in the Tribunal within a period of 8 weeks from today and then the Tribunal will pass orders for investment, etc.
Writ Petition No. 2035 of 1995
23. Mumbai Municipal Corporation has filed this petition seeking to challenge the constitutional validity of provisions of the Act. As a result of interim stay granted by this Court the application for compensation filed by the claimants, i.e., respondent Nos. 3 (a) to 3 (d) before the Tribunal has remained pending since 12.1.1995. The accident occurred on 20.12.1994 wherein the husband of respondent No. 3 (a) was killed. The deceased was 46 years of age at the time of his death and his monthly income was Rs. 3,324. The school leaving certificate and the salary certificate tendered by the learned Counsel on record show that the annual income of the deceased was Rs. 39,888 which may be rounded up to Rs. 40,000. Having regard to the documentary evidence produced by the claimants we feel that no purpose would be served by sending the matter to the Tribunal. Applying the structured formula in the Second Schedule the amount of compensation comes to Rs. 3,29,000. Since the claimants have claimed amount of Rs. 3,27,000 we direct the Municipal Corporation to pay to the claimants a sum of Rs. 3,27,000 by way of compensation with interest at the rate of 9 per cent per annum from the date of application till realisation and Rs. 5,000 as costs. The Municipal Corporation is directed to deposit the said amount in the Tribunal within 8 weeks. Needless to say that the Tribunal will pass the appropriate orders relating to investment, etc.
First Appeal No. 690 of 1996
24. In this case the deceased was 29 years old and he was working with Anil Roadways as a Mechanical Engineer. The Tribunal has taken yearly income at Rs. 99,572, i.e., in excess of Rs. 40,000. The total amount awarded by the Tribunal is Rs. 11,37,982.67. Mr. Hegde stated that the income of the deceased is much higher than Rs. 40,000 and, therefore, the heirs of the deceased want to pursue the remedy under Section 166 of the Motor Vehicles Act and, therefore, the applicants may be permitted to convert their application under Section 163-A into an application under Section 166. In our opinion the request made by the learned Counsel is reasonable and same is also not opposed by the insurance company. We, therefore, set aside the award passed by the Tribunal and remand the matter back to the Tribunal for fresh consideration of the application made by the applicants by treating the said application under Section 166 in accordance with law. We direct the Tribunal to decide the said application as expeditiously as possible and in any event within a period of six months from today. Pursuant to the interim order passed by this Court the insurance company has deposited in all Rs. 6,25,000 out of which certain amounts have been withdrawn by the applicants on personal bond/security. The learned Counsel for the applicants makes a statement that in case the application is dismissed or amount of compensation is reduced the applicants will bring back the amount as per directions of the Tribunal. Insurance company is at liberty to withdraw the balance amount which is lying in this Court.
First Appeal Nos. 1009 of 1998, 1119 of 1995, 1141 of 1995, 637 of 1996, 689 of 1996, 896 of 1996, 576 of 1996, 628 of 1996, 371 of 1998, 491 of 1996, 21 of 1997 and 964 of 1996
25. All the above appeals stand dismissed with costs. The amounts deposited by the insurance company in these appeals to stand transferred to the Tribunal forthwith if not already transferred.