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Judgment
Sanjib Banerjee, J
The present appeal arises out of a claim lodged under Section 163-A of the Motor Vehicles Act, 1988.
The accident in this case occurred on November 4, 2013 and the award was rendered on March 21, 2018.
At the time that the accident took place, the Second Schedule to the Act of 1988 as it stood then applied to Section 163-A of the Act. Subsequently, the Second Schedule was amended with effect from May 22, 2018 by which, inter alia, a flat rate of compensation of Rs.5 lakh was fixed for fatal accidents. However, by the 2019 amendment to the Act, which has become effective from September 1, 2019, Section 163-A and the Second Schedule to the Act have been removed. Instead, Section 164 of the Act deals with what was originally and substantially covered by Section 163-A thereof and Section 164(1) of the Act now gives a flat rate of compensation of Rs.5 lakh in a fatal accident case and Rs.2.5 lakh in a grievous hurt case. By virtue of Section 164(2) of the Act, the entitlement to compensation under Section 164 of the Act is irrespective of any wrongful act or negligence or default on the part of the owner of the vehicle involved in the accident.
The anomaly or, rather, the several anomalies in the Second Schedule to the Act were noticed all over the country and, in an attempt to resolve some of the anomalies, the judgment in Sarla Verma (reported at (2009) 6 SCC 121) made out a table with the entries in the sixth column of such table governing fatal accident claims under Section 166 of the Act.
It must be recognised here that Section 166 of the Act did not refer to any schedule at any point of time and, theoretically, it was possible to award just compensation in accordance with the requirement of a particular situation. However, upon the Supreme Court noticing the wide disparity in the quantum of compensation awarded in several cases, including in the methodology adopted therefor in the three particular cases consistently referred to in Sarla Verma (Charlie, Trilok Chandra and Susamma Thomas), a reconciliation was attempted to be brought about. However, Sarla Verma expressly limited the application of the table to cases under Section 166 of the Act. Thus, the table and the applicability thereof in respect of cases covered by Section 166 of the Act was a direction of the Supreme Court that had the binding force of law in view of Section 141 of the Constitution.
Indeed, the table set out in Sarla Verma gained complete recognition upon the Constitution Bench in Reshma Kumari [(2013) 9 SCC 65] holding that such table was to govern all cases under Section 166 of the Act. However, Reshma Kumari held at paragraph 43.2 that in cases where the age of the deceased was up to 15 years, "irrespective of Section 166 or Section 163-A under which the claim for compensation has been made", multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction pointed out in the sixth column of the table in Sarla Verma should be followed. In view of the specific wording of paragraph 43.2 of Reshma Kumari, the spirit of such direction cannot be extended to cases where the age of the deceased is in excess of 15 years, particularly when a claim is made under Section 163-A of the Act.
The legal position, on the basis of Sarla Verma and Reshma Kumari, is that the final table indicated in Sarla Verma would govern all claims under Section 166 of the Act pertaining to fatal accidents but would not govern claims under Section 163-A thereof except in case of death where the age of the victim was 15 years or below.
Since the anomalies in the table under clause-1 of the Second Schedule were attempted to be reconciled in Sarla Verma, albeit for a different purpose under Section 166 of the Act, the spirit of such judgment may have otherwise been used to altogether modify the table under clause-1 of the Second Schedule to the Act in respect of fatal accident claims under Section 163-A thereof. It may have been hard to justify the stretching of the Sarla Verma logic to such extent, as Sarla Verma restricted the ratio to cases covered by only Section 166 of the Act, but it may still have been possible. However, no attempt in such regard can now be undertaken in view of the judgment reported at (2013) 15 SCC 45 (Puttama v K.L. Narayana Reddy). Paragraph 58 of the judgment is set out:
"58. The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163-A(3), but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of Section 163A of Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/- (rupees one lakh) and persons more than 5 years of age shall be entitled for fixed compensation of Rs.1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under Section 163A of the Act, 1988."
Such is the specific command at paragraph 58 of the judgment in Puttama. In the light of such judgment, there is no further room for judicial imagination to award any amount higher than as stipulated in Puttama for any claim made under Section 163-A of the Act following the death of the victim in a motor accident.
The only other avenue open to award higher amounts on claims under Section 163-A in respect of fatal accidents would be to seek the application of the 2018 amendment to the Second Schedule to the Act or the equivalent 2019 amendment to the Act that provide for a flat compensation of Rs.5 lakh. As the Act of 1988, in the matter of compensation to motor accident victims, has to be regarded as a beneficial legislation, it stands to reason that the amendment of 2018 to the Second Schedule or the subsequent 2019 amendment to the Act would have to be given effect to in all live claims where accord and satisfaction may not have been achieved after adjudication.
In such vein, on the basis of the 2018 amendment to the Second Schedule, a judgment was rendered by a coordinate Bench reported at (2018) 5 CHN 52 (Urmila Halder v New India Assurance Co.). However, a special leave petition from such judgment has been entertained and the matter has been fixed by the Supreme Court sometime in November, 2019 for consideration.
Even though the 2019 amendment to the Act has overtaken the 2018 amendment to the Second Schedule and, technically, there is no lis on the subject, to the best information of this court, pending in the Supreme Court, the legal issue involved in the matter reserved for consideration in November, 2019 is the same. The legal proposition is whether the amendment of 2018 would govern accidents which took place prior to such amendment or even the judgments of tribunals which were rendered prior to such amendment but where the claims have not been finally settled.
In such light, the present appeal is adjourned. It will now appear in the combined monthly list of January, 2020. Hopefully, the legal issue would have been decided by the Supreme Court by then.
It is submitted by the respondent insurance company that the awarded amount has already been received by the appellants herein. However, the mere receipt of the awarded amount before an appeal from the award is decided, will not amount to accord and satisfaction.
Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.