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Judgment
V. Jagannathan, J.—All these three appeals arise out of one and the same order passed by MACT, Belgaum and hence, they have been disposed of by this common order.
M.F.A. No. 8622/03 is filed by M/s. United India Insurance Company Limited and the main ground urged in this appeal is that the claimants had filed petition u/s 166 of the Motor Vehicles Act and later on got it converted into Section 163(A) of the Act and the Tribunal though recorded a positive finding that the income of the deceased was Rs. 1,20,000/- per annum, it confined it to Rs. 40,000/- p.a. so as to bring the case within the ambit of Section 163(A). This procedure followed by the Tribunal is contrary to the law laid down by the Apex Court and therefore, the claim petition, in so far as M.V.C. No. 785/99 is concerned, ought to have been dismissed by the Tribunal and the appeal filed by the insurance company be allowed on this ground alone. The further ground urged in this appeal by the insurance company is that the deceased was at fault and the accident took place on account of rash and negligent driving of the jeep by the driver concerned and as such, the insurance company cannot be made liable for the fault of the driver of the vehicle and the driver was also not a workman in the vehicle in question and therefore, the question of saddling the insurance company will not arise.
3.M.F. As. No. 816 and 817 of 2004 are preferred by the National Insurance Company - the insurer of the lorry involved in the accident, assailing the finding of the Tribunal with regard to apportionment of negligence in respect of drivers as well as the quantum of compensation.
We have heard the learned Counsel for the Appellants as well as the learned Counsel for the claimants.
Learned Counsel Sri. B. C. Seetharama Rao in M.F.A. No. 8622/03 drew our attention to the decision of the Apex Court reported in 204 ACJ 934 (Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd.) to contend that when the income of the deceased was more than Rs. 40,000/- p.a. as per the finding of the Tribunal, the Tribunal could not have allowed the petition to be converted u/s 163(A) of the Act and therefore, the claim petition ought to have been dismissed on the ground of liability. The decision of Apex Court in A. Vijaya and Others Vs. Vegurla Rajaiah and Others, was also referred to in this connection.
So far as M.F.A. No. 8622/03 is concerned, it is a settled position in law that the petition u/s 163(A) is maintainable only where the income was Rs. 40,000/- p.a. and below and it is not permissible to contend that the petition can be maintainable u/s 163(A) even though the income is more than Rs. 40,000/- p.a. by limiting the income by Rs. 40,000/- so as to bring it within Section 163(A) of the Act. The Apex Court has, in Deepal Girishbhai''s case (supra) 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 163-A, 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 162-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A 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 the concept of social justice has been duly taken care of.
We, therefore, are of the opinion that The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- shall be treated as a cap. In our opinion, the proceeding u/s 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All the other claims are required to be determined in terms of Chapter XII of the Act.
It is, therefore, clear from the above decision in law that only persons whose annual income is upto Rs. 40,000/- can take the benefit of Section 163-A and no other persons and all other clients are required to be dealt with in terms of Section XII of the Act. Such being the decision in law, the Tribunal could not have allowed the petition as if it was u/s 163-A by scaling down the annual income from Rs. 1,20,000/- to Rs. 40,000/- so as to bring the case within the purview of Section 163A. As such, we find enough force in the submission made by the learned Counsel for the insurance company and the Tribunal ought not to have allowed the petition u/s 163-A. Therefore, the appeal No. 8622/2003 is concerned, on this score alone, the appeal filed by the insurance company deserves to be allowed by setting aside the order of the Tribunal. Consequently, the appeal filed by the National Insurance Company in M.F.A. 816/04 also deserves to be allowed on the very same ground and accordingly, the other two appeals are allowed by setting aside the judgment of the Tribunal in M.V.C. No. 785/99.
Coming to M.F.A. No. 817/2004, the only question to be dealt with in this appeal as per the submission made by the learned Counsel Sri. O. Mahesh is whether the Tribunal was justified in holding that the drivers of both the vehicles involved in the accident were negligent in equal proportions and secondly, whether the Tribunal was right in taking the income at Rs. 8,000/- per month for quantifying the loss of dependency amount?
Learned Counsel Sri. O. Mahesh appearing for the insurance company contended that the accident took place when the jeep in question dashed to a parked truck and that too when the truck was parked on the extreme left side of the road. The accident took place at about 4 p.m. on 10.12.1998 when there was clear visibility and therefore, it was contended that the negligence on the part of the driver of the truck could not have been as high as what the Tribunal has taken.
Having examined the evidence on record, particularly, those of R Ws. 1 and 2, we find sufficient force in the said submission. However, the driver of the truck cannot be given a clean chit so as to absolve him of fault to any extent. But on the other hand, it was the duty of the truck driver to have taken all the precautions to see to it that a moving vehicle does not come in contact with the parked truck, by putting some indications to prevent collision with parked truck. Therefore, there is negligence on the part of the truck driver also and having regard to the entire evidence placed on record, we are of the opinion that the truck driver will have to be held negligent to the extent of 30% and the jeep driver to the extent of 70%. In view of the said opinion by us, the finding of the Tribunal on this point accordingly stands modified and we set aside the finding that the drivers of both the vehicles were negligent in equal proportions, by holding that the negligence between the jeep and truck drivers is at 70% and 30% respectively.
Coming to the quantum of compensation the only grievance of the Appellant-insurance company is that the income of the deceased was taken at Rs. 8,000/- per month based on Ex. P-4 salary certificate and in the absence of the author of Ex. P-4 being examined, the Tribunal could not have taken the income on the face value of Ex. P-4 at Rs. 8,000/- p.m.
We find sufficient force in this submission. It is not in dispute that the deceased was working in the mines concerned and his salary could not have been too low so as to discard Ex. P-4 in its entirety. Taking into account the occupation of the deceased and his status as Manager of the mines, his salary could not have been less than Rs. 6,000/- p.m. Therefore, taking the income at Rs. 6,000/- p.m. and allowing 1/3rd deduction and applying the multiplier 13 having regard to the age of the deceased as 40 years, the loss of dependency comes to Rs. 6,24,000/-. This we substitute in place of Rs. 7,68,000/-. The other amounts awarded by the Tribunal under the other heads are however maintained. Accordinly, the total compensation gets reduced to the above extent.
In the result, M.F. As. No. 8622/2003, 816/2004 are allowed and M.F.A. No. 817/2004 is allowed in part as indicated before.
The deposit made by the United India Insurance Company be refunded to it in respect of M.V.C. No. 785/99. In respect of claim petition in M.V.C. No. 784/99 is concerned, the excess amount if any deposited by the insurance company, shall be refunded to it.
So far as M.F.A. No. 816/04 is concerned, in view of the appeal being allowed, the amount in deposit shall be refunded to the insurance company.
So far as the dismissal of the claim petitions u/s 163(A) is concerned, the claimants are at liberty to file a petition u/s 166 of the M.V. Act, afresh and if it is filed, the Tribunal shall dispose of the matter in accordance with law. So far as liability is concerned, as already held by us it has to be apportioned between the jeep driver and the truck driver at 70% and 30% respectively.