JUDGMENT
R.L. Anand, J.
1. This is a Civil Revision filed by the National Insurance Company Limited through its Regional Manager and has been directed against the respondents mentioned in the Head Note of the memorandum of parties and challenge in this revision has been given to the order dated 26.4.1997, passed by the Motor Accidents Claims Tribunal, Chandigarh, vide which, the Tribunal allowed the application under Section 163-A of the Motor Vehicles Act, 1988 and awarded a sum of Rs. 4,28,667/- to the claimants by stating that out of this amount of compensation, a sum of Rs. 40,000/- will be payable to the parents of the deceased and the remaining amount of Rs. 3,88,667/- shall be shared by the other claimants equally and the share of the minors will be got deposited in some nationalised bank payable to them after attaining majority. Further the Tribunal held that a sum of Rs. 5,000/- as a loss of consortium will also be permissible to the widow besides the aforesaid amount payable to her. Interest at the rate of 12 per cent per annum from the date of the petition till realisation shall be payable to the claimants.
2. The record of the trial Court was also requisitioned.
3. The record of the lower Court shows that Indu Sharma widow of Late Sgt. Mahesh Sharma, Swati Sharma minor daughter aged 3 years and Deeksha minor daughter of 8 months, filed a claim petition under Section 166 of the Motor Vehicles Act against Shri Jaya Parkash (Driver of the Truck), M/s R.R. Textiles Smannur, the owner of the truck and National Insurance Company at Chandigarh and claimed a sum of Rs. 14 lacs by way of compensation alleging that the accident had been caused to the scooter driven by the deceased Shri Mahesh Sharma, by respondent No. 1 Shri Jaya Parkash, the driver of the offending truck. This petition was filed on 8.9.1995.
4. The record of the trial Court further shows that one more claim petition was filed by these very claimants under Section 163-A of the Motor Vehicles Act and it was also presented before the Tribunal on 6.9.1995 in which a prayer was made that this petition under Section 163-A may be disposed of and compensation may be awarded to the claimants on structured formula basis with a direction to the respondents to pay the compensation in terms of Section 163-A of the Motor Vehicles Act.
5. In the petition under Section 163-A, it was averred that on 24.4.1995 Sgt. Mahesh Sharma was driving Scooter No. MP 07/8757 and when he was in between RVS College, Sulur and Kangain Paloyana, a collision took place on the highway road due to rash and negligent driving of the driver of the Tata 407 (Locomotive) vehicle which was being driven by respondent No. 1 and Shri Mahesh Sharma received injuries in the accident and he succumbed to those injuries. In the petition, it was stated that Shri Mahesh Sharma was aged 33 years and was working as Sergeant in the Air Force and was drawing a salary of Rs. 4,463/- per month. In this manner, a sum of Rs. l1 lacs by way of compensation has been claimed in this petition under Section 163-A of the Motor Vehicles Act. It is further alleged that respondents are liable to pay this compensation jointly and severally as the vehicle was insured with the National Insurance Company Limited.
6. Notice of the application was given to the respondents. Respondent No. 3 National Insurance Company Limited took a preliminary objection to the effect that the claim petition has been Filed with a view to defraud the answering respondent; that it is bogus; that it is mala fide and illegal in law and, as such, was liable to be dismissed and that it has been filed in contravention of the provisions of the Act. Further, it was stated that legal representatives of the deceased are not entitled to any compensation as they have not suffered any monetary loss. It was pleaded by respondent No. 3 that the driver of the truck No. TN 39C-0610 was not holding a valid driving licence at the time of the accident; that the petition is barred by time and that the petitioners are not the legal heirs.
7. The parents of the deceased also filed a separate Written statement and they took the stand that they are also entitled to receive compensation apart from the legal heirs of the deceased.
8. A rejoinder was filed. In the main petition under Section 166 of the Motor Vehicles Act, the following issues were framed:-
1. Whether Mahesh Sharma died on account of the injuries received by him in an accident caused by the rash and negligent driving of truck No. TN-39-C-0610 on 24.4.1995 in the area of Sulur? OPP.
2. If issue No. 1 is proved, whether the claimants are entitled to receive compensation? If so, how much and from whom? OPP.
3. Whether respondents No. 5 is also entitled to share the amount of compensation with the claimants? If so, to what extent? OPR.
4. Whether driver of truck No. TN-39-C-0610 was not holding a valid driving licence at the time of accident? If so, to what effect? OPR.
5. Whether the petition is barred by time? OPR.
6. Whether truck in question was not insured. If so, to what effect? OPR.
7. Relief.
9. Since the petition under Section 163-A was also filed by the claimants, therefore, the Tribunal disposed of this petition at the first instance by keeping the petition under Section 166 of the Motor Vehicles Act, pending.
10. After hearing the learned counsel for the parties, the Tribunal in Para No. 12 of the impugned order made the following observation:-
“The factum that the accident did take place and Sgt. Mahesh Sharma succumbed to the injuries received in that accident stands admitted on behalf of respondents No. 3, who by itself had got the matter investigated and found that the accident had taken place and the offending vehicle which was a truck being driven by Jaya Parkash respondent No. 1. It has further been found that a criminal case was also registered against the driver. So far as the age of the deceased is concerned, the same according to the application under Section 163-A of the Act was 29 years at the time of accident, but according to the verification made by the Insurance Company his age at that time was 33 years. In the postmortem report also the age of the deceased has been recorded as 33 years. The age for the purpose of determination of the claim in the present application at this juncture is thus to be taken to be 33 years. The multiplier as per IInd Schedule to be applied in this case is thus to be 17 and if the income of the deceased is taken to be Rs. 4,00,000/- one third thereof is- to be deducted from the income of the deceased for his personal expenses had he not died. The amount of compensation thus payable to the legal representatives of the deceased comes to Rs. 4,26,667/- and by adding the funeral expenses Rs. 2,000/- the total compensation comes to Rs. 4,28,667/-. Out of this amount of compensation a sum of Rs. 40,000/- will be payable to the parents of the deceased and the remaining amount of Rs. 3,88,667/-shall be shared by the remaining claimants equally and the share of the minors will be got deposited in some Nationalised Bank payable to them after attaining majority. A sum of Rs. 5,000/- as loss of consortium will also be permissible to the widow besides the aforesaid amount payable to her. Interest at the rate of 12 per cent per annum from the date of the petition till realisation shall also be payable to the claimants.”
11. Aggrieved by the award of Rs. 4,28,667/-the Insurance Company has filed the present revision.
12. At one stage, the present revision came up for hearing before Hon’ble Mr. Justice N.K. Sodhi, on 18.2.1998 and his Lordship, after hearing the counsel for the parties and on the consideration of the matter, directed the Insurance Company to pay the awarded amount of Rs. 4,28,667/- by staying the recovery of Rs. 2,00,000/-, meaning thereby that over and above Rs. 2,00,000/- alongwith interest was ordered to be paid to the respondents within four weeks from the date of the passing of the order. I have been informed that during the pendency of this proceeding the Insurance Company has released the amount except to the tune of Rs. 2,00,000/- as ordered by Hon’ble Mr. Justice N.K. Sodhi.
13. I have heard Shri L.M. Suri, Senior Advocate, on behalf of the petitioner and Shri S.S. Saron, Advocate, on behalf of respondents No. 1 to 3 (widow and the children of the deceased) and Shri Raman Sharma, Advocate on behalf of the respondents No. 6 and 7, who are the parents of the deceased and with their assistance, I have gone through the record of this case.
14. The learned senior counsel, Mr. Suri, submitted that the Insurance Company is liable to indemnify the insurer by virtue of the provisions of the Act and the defences which are open to the insurance company under Section 149 of the Motor Vehicles Act, have not been taken away. He further submitted that while calculating the compensation under Section 163-A of the Act, the Court is not absolved of the framing of the issues except the issue of negligence. The Court must be satisfied with regard to the income of the deceased as well as age and the defences which are open to the Insurance Company, have not been taken away under Section 163-A of the Motor Vehicles Act. Moreover, the Tribunal also ignored that under the structured formula as mentioned in Second Schedule the compensation can only be given to those persons who are earning up to Rs. 40,000/- per annum and not beyond and in the present case, as per the allegations of the claimants, the deceased was earning Rs. 52,000/- per year. The Tribunal has not taken note of the possible defences of the insurance Company and has committed an illegality in straightaway awarding the amount of Rs. 4,26,660/-. The learned Senior counsel, Mr. Suri, also drew my attention to the various provisions of the Motor Vehicles Act (which I will presently refer) and submitted with vehemence that entire approach of the Tribunal was erroneous.
15. On the contrary, the learned counsel appearing on behalf of respondents No. 1 to 3 and 6 to 7 justified the order of the Tribunal by submitting that the provisions under Section 163-A are the special provisions and these provisions over-ride the other provisions including the provision under Section 149 of the Act and, therefore, the simultaneous petitions under Section 166 and 163-A of the Motor Vehicles Act, are competent and till the final disposal of the petition under Section 166 of the Motor Vehicles Act, the petition under Section 163-A of the Act can be disposed of and decided at the first instance and the provision of the Second Schedule of Section 163-A is only a guideline in nature and it does not debar from awarding the compensation even to the legal representatives of those persons whose income is beyond Rs. 40,000/- per year. The counsel for the respondents also submitted that the provisions of Section 163-A are beneficiary in nature and this Section has been introduced in the Act with the specific purpose and object so as to avoid hardship to the legal representatives and dependents of the deceased and in order to give them solace till their petition under Section 166 of the Motor Vehicles Act is disposed of finally. Section 140 of the Motor Vehicles Act deals with the liability to pay compensation in certain cases on the principle of no fault liability and according to this Section where 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 owners of the vehicle shall or as the case may be, the owners of the vehicle shall jointly and severally be liable to pay compensation, in respect of such death or disablement in accordance with the provisions of this Section. As per sub-section (2) of Section 140 of the Act, the amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person, shall be fixed sum of fifty 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 twenty five thousand rupees. As per sub-Section (3) of Section 140 of the Act, the claimant is not obliged to plead and establish that death or permanent disability was due to any wrongful act, neglect or default of the owners of the vehicle or vehicles concerned or of any other person and according to sub-section (4) of this Section, a claim for compensation under Sub-section (1) cannot be defeated by reasons of any wrongful act, neglect or default of a person in respect of whose death or permanent disability the claim has been made. As per the proviso added to sub-section (5) of Section 140 of the Motor Vehicles Act, the amount which is awarded under Section 140 or under Section 163-A is supposed to be adjusted.
16. The object of Section 140 and the reading of the same would show that these provisions have been added by way of interim compensation which can be awarded to the claimant who has been absolved of the obligation to plead and establish that the death or the permanent disability had taken place on account of the wrongful act, neglect or default of the owner or the owners of the vehicle.
17. As per Section 149 of the Act, it is the duty of the Insurance Company to satisfy the judgment and award against the persons insured in respect of third party risk. Of course, there are certain defences which are open to the Insurance Company and those defences can be taken to defeat the claim. For our purpose the provisions of Section 163-A are to be interpreted and seen. As per sub-section (1) of Section 163-A 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 or the victim, as the case may be. According to sub-section (2) of this Section, 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 or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. We cannot ignore this fact that the provision of Section 163-A are the special provisions as to the payment of compensation on structured formula basis and this Section has also been introduced as a beneficiary provision for the heirs of the deceased or disabled persons to get interim compensation till the rights are adjudicated in the regular petition under Section 166 of the Motor Vehicles Act.
18. Section 163-B of the Motor Vehicles Act lays down that where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said Sections and not under both. Thus, the reading of Section 140 and 163-A of the Motor Vehicles Act makes it abundantly clear that one can come under any of these sections to claim interim compensation till his petition under Section 166 is disposed of. The major difference, which I understand after the study of both these provisions, is that under Section 140 the interim compensation can only be granted upto the limit of fifty thousand rupees in the case of death and in case of a permanent disability, it can be twenty five thousand rupees. But nothing is common in both the provisions that it is not necessary on the part of the claimant or the disabled person to establish that the death or the permanent disability had taken place due to the wrongful act or neglect of the owner or owners. So far as Section 163-A is concerned, the compensation can be granted even more than Rs. 50,000/- according to the structured formula as mentioned in the Second Schedule of Section 163-A. A reading of Section 163-A does not indicate that this Section will only apply if the annual income of the deceased or a disabled person is within the range of Rs. 40,000/-. Rather, the close scrutiny of Second Schedule would show that the Legislature has specified various multipliers keeping in view the ages of the victims and further a guidelines has been given about the other amounts of compensation under the various heads such as funeral expenses, loss of consortium and loss of estate etc.
19. Section 163-A of the Act starts with the language that it overrides the other provisions of the Act and any other law for the time being in force including Section 149. At the cost of repetition, it may be mentioned that it lays down “notwithstanding anything contained in this Act or any other law for the time being in force”, meaning thereby that the defences which are open to the Insurance Company under Section 149, cannot be pleaded so far as awarding of interim compensation under Section 163-A to the legal heirs of the deceased is concerned.
20. The moment the claimant comes with a prayer under Section 163-A and succeeds in proving prima facie that the death or permanent disability had taken place and if this fact is admitted directly or by implication or by circumstances, the Tribunal has the right to award the compensation under this Section after taking guidelines from the second Schedule of this Section.
21. In the present case, it is admitted that the death of Sgt. Mahesh Sharma, took place in the vehicular accident. The Insurance Company appointed a Surveyor and investigator at their own level who gave a report that Sgt. Mahesh Sharma sustained the injuries. Further, it was stated in the report of the Surveyor/Investigator that the offending vehicle was a truck and it was being driven by Shri Jaya Parkash, respondent No. 1, who was prosecuted in criminal case also. Also it is proved through the postmortem report that the deceased was 33 years of age and in these circumstances, as per the Second Schedule, a multiplier of 17 can be applied to the dependency. For the purpose of Section 163-A of the Act, the outer guideline of Schedule II that the income of Rs. 40,000/- per year may be taken into consideration and by applying the multiplier of 17, the total compensation comes to Rs. 6,80,000/-. By deducting the personal expenses of the deceased to the tune of one third, the Tribunal was rightly calculated that a sum of Rs. 4,26,667/- can be awarded by way of interim compensation to the legal heirs of the deceased including his parents. Adding of Rs. 2,000/- on account of funeral expenses, is not an excessive amount. Rather it is permissible amount. Awarding of Rs. 40,000/- to the parents of the deceased out of the adjudicated amount of Rs. 4,28,667/- is a good arrangement and the remaining amount of Rs. 3,88,667/- has been ordered to be paid in equal shares to the widow and two minor daughters. A sum of Rs. 5,000/- as loss of consortium is also permissible. Awarding of interest is also justified.
22. From my above discussion, it is hereby held that under Section 163-A of the Motor Vehicles Act, the defences which are open to the Insurance Company under Section 149, have been taken away by virtue of the language used in the Section. The proceedings under Section 163-A and 166 of the Motor Vehicles Act can go together being independent provisions and awarding of compensation under Section 163-A. like under Section 140 does not detract or defeat the provision of Section 166 of the Motor Vehicles Act.
23. It is further held that the provisions of Section 140 and Section 163-A, are beneficial provisions introduced by the Legislature in order to mitigate the miseries of the victims and their dependents.
24. In the light of above discussion, I do not see any merit in this revision filed under Article 227 of the Constitution of India and dismiss the same with no order as to costs. The Registry is directed to send the records of the Tribunal to it for disposal of the petition under Section 166 of the Act.
25. The parties through their counsel are directed to appear before the Tribunal on 13.12.1999.