1. This order disposes of FAO-5914-2014 (O&M) filed against award dated 16.04.2014 passed by learned Motor Accidents Claims Tribunal, Kaithal
(for short ‘the Tribunal’) in MACT case No.64 of 2013 titled Nisha Devi and others Vs. Satbir and others and FAO-5915-2014 (O&M) filed
against above-said award passed by the above-said Tribunal in MACT Case No.65 of 2013 titled Sonia and others Vs. Satbir and others, as both the
above-said claim petitions arose out of the same accident and common questions of facts and law are involved in the above-said appeals.
2. Both the above-said claim petitions were filed under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the M.V. Act’) for award of
compensation for death of Naresh Kumar and Mukesh Kumar, respectively due to injuries suffered in accident arising out of the use of three-wheeler
bearing registration No.HR-64-7528. The common factual matrix emerging from the abovesaid claim petitions is that on 14.06.2013 deceased-Naresh
Kumar and Mukesh Kumar along with Ved Parkash and Sonu were going from Kaithal to Pundri in three-wheeler bearing registration No.HR-64-
7528 driven by respondent No.1. After they had crossed distance of about 2 km. from Karnal bye-pass chowk to the Pundri side, an unknown truck
came from opposite side driven at a very fast speed and in a rash and negligent manner and hit against the three-wheeler due to which all the
occupants of the three-wheeler received multiple serious and grievous injuries. Naresh Kumar and Mukesh Kumar succumbed to their injuries. FIR
No.121 dated 14.06.2013 was registered under Sections 279, 337, 427 and 304-A of the Indian Penal Code, 1860 in Police Station Civil Lines, Kaithal
regarding the accident.
3. In MACT Case No. 64 of 2013 titled Nisha Devi and others Vs. Satbir and others claimants Nisha Devi and others pleaded that deceased-Naresh
Kumar was aged about 23 years at the time of his death and earning Rs.3,300/- per month by working as labourer. The claimants spent amount of
Rs.50,000/- on his last rites. The claimants being dependents and legal heirs of deceased-Naresh Kumar are entitled to payment of compensation for
his death with costs and interest from respondents No.2 and 3-owner and insurer.
4. In MACT 65 of 2013 titled Sonia and others Vs. Satbir and others claimants Sonia and others pleaded that deceased-Mukesh Kumar was aged
about 23 years at the time of his death and earning Rs.3,300/- per month by doing labour work. They spent amount of Rs.50,000/- on his last rites. The
claimants being dependents and legal heirs of deceased-Mukesh Kumar are entitled to payment of compensation for his death with costs and interest
from respondents No.2 and 3-owner and insurer.
5. Notice of the claim petitions was issued to the respondents. Respondent No.2-owner suffered himself to be proceeded against ex-parte. The claim
petitions were contested by respondent No.1-driver and respondent No.3-Insurance Company.
6. In his written statements filed in both the cases respondent No.1 took preliminary objections regarding maintainability, locus standi, mis-joinder of
parties, suppression of true and material facts etc., denied the accident and his liability while pleading that he was having valid and effective driving
licence and that the three-wheeler was insured with respondent No.3.
7. In its written statements filed in both the cases, respondent No.3 took objections as to maintainability, mis-joinder and non-joinder of parties, want of
cause of action, estoppel, collusion, respondent No.1 not having valid and effective driving license, breach of terms and conditions of the insurance
policy by respondent No.1 etc., controverted the material averments made in the petition and denied its liability.
8. The Tribunal framed the issues and recorded the evidence produced by the parties. On perusal of the material on record and consideration of the
submissions made by the learned Counsel for the parties, the claim petitions were allowed by the Tribunal vide common award dated 16.04.2014
wherein the Tribunal held that Naresh Kumar and Mukesh Kumar died due to accident arising out of the use of three-wheeler bearing registration
No.HR-64-7528. In MACT Case No. 64 of 2013 titled Nisha Devi and others Vs. Satbir and others, the Tribunal assessed income of deceased
Naresh Kumar as Rs.3,300/- per month, deducted 1/4th towards personal expenses, applied multiplier of 18, added amount of Rs.20,000/- towards
funeral expenses and Rs.75,000/- towards LOSS OF consortium AND awarded compensation of Rs.6,29,600/- with costs and interest at the rate of
7.5% per annum from the date of filing of the claim petition till payment to the claimants. In MACT Case No.65 of 2013 titled Sonia and others Vs.
Satbir and others the Tribunal assessed income of Mukesh Kumar as Rs.3,300/- per month, deducted 1/4th towards personal expenses, applied
multiplier of 18, added amount of Rs.20,000/- towards funeral expenses and Rs.75,000/- towards loss of consortium and awarded compensation of
Rs.6,29,600/- with costs and interest at the rate of 7.5% per annum from the date of filing of the claim petition till payment to the claimants. The
Tribunal held the respondents to be jointly and severally liable for payment of the above said compensation amounts to the claimants.
9. Feeling aggrieved, the insurance company has preferred present appeals against the above said award.
10. I have heard arguments addressed by the learned Counsel for the appellant-Insurance Company and learned Counsel for the respondents-
claimants.
11. Learned Counsel for the appellant-Insurance Company has argued that the common award dated 16.04.2014 passed by the Tribunal in both the
above-said claim petitions suffers from material irregularities. The Tribunal wrongly deducted 1/4th instead of 1/3rd towards personal expenses of the
deceased, wrongly applied multiplier of 18 instead of 17 and wrongly awarded a sum of Rs.75,000/- instead of Rs.5,000/- towards loss of consortium
and Rs.20,000/- instead of Rs.2,000/- towards funeral expenses which is not permissible under Section 163-A of the M.V. Act, 1988. Impugned
award is liable to be modified and the compensation awarded is liable to be reduced. In support of his arguments learned Counsel for the appellant has
placed reliance on the decision of an Hon’ble Coordinate Bench of this Court in FAO No.3460 of 2004 titled as Mohit Garg and another Vs.
Afrojan and others and FAO No.4579 of 2004 titled as Afrojan and others Vs. Mohit Garg and another decided on 15.05.2014.
12. On the other hand, learned Counsel for the respondents-claimants has argued that the Tribunal has awarded just compensation which is not liable
to be reduced. The impugned award does not call for any modification and the appeals may be dismissed.
13. It may be observed, at the very outset that in the present case, the findings of the Tribunal, as to death of Naresh Kumar and Mukesh Kumar due
to accident arising out of the use of three-wheeler bearing registration No.HR-64-7528, owned by respondent No.2 and insured with respondent No.3
and entitlement of the claimants to payment of compensation from respondent No.2-owner and respondent No.3-Insruance Company jointly and
severally have not been challenged by the appellant-Insurance Company.
14. It is pertinent to mention here that the respondents-claimants filed cross-objections in both the above-said appeals for enhancement of the
compensation awarded. However, the respondents-claimants subsequently prayed for dismissal thereof as withdrawn on which the cross-objections
were dismissed as withdrawn vide order dated 07.01.2019.
15. In both the cases, the Tribunal ordered payment of the compensation amounts with interest at the rate of 7.5% per annum from the date of filing
of the petition till its realization. The claimants had filed cross-objections to both the appeals seeking enhancement of the compensation awarded by the
Tribunal and also seeking award of interest at the rate of 18% per annum but subsequently the claimants got the cross-objections dismissed as
withdrawn with the consequence that the question of adequacy of interest awarded by the Tribunal is not required to be, and even cannot be,
adjudicated upon.
16. On perusal of the material on record and consideration of the submission made by the learned Counsel for the parties, I am of the considered view
that the appeals deserved to be allowed and the compensation awarded is liable to be reduced and impugned award is liable to be modified.
17. Sub Section (1) of Section 163-A of the M.V. Act provides as under:-
“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.â€
18. Para 1 of Second Schedule of the M.V. Act provides for calculation of compensation by applying multiplier as per age of the deceased to his
income. Note to Para 1 of the Second Schedule of the M.V. Act provides for deduction of 1/3rd of the amount of compensation so arrived at in
consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. Para 3 of Second Schedule of the
M.V. Act empowers the Tribunal to award amount of Rs.5,000/- to widow towards loss of consortium and amount of Rs.2,000/- towards funeral
expenses and amount of Rs.2,500/-towards loss of estate.
19. In the present case, the deceased were proved to be aged about 23 years and to be having income of Rs.3300/- per month at the time of their
death. Due to there being no provision in Second Schedule of the M.V. Act for addition in income towards future prospects, no addition was required
to be made in the income of the deceased towards future prospects and the Tribunal rightly did not make any addition to income of the deceased
towards future prospects. However, the Tribunal deviated from the provisions made in Second Schedule of the M.V. Act and made deduction of 1/4th
towards personal expenses of the deceased and applied the multiplier of 18 in view of age of the deceased being 23 years on the basis of directions
given by Hon’ble Supreme Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and Anr. 2009 (3) R.C.R. (Civil) 77. The
Tribunal awarded amount of Rs.75,000/- to claimant No.1-widow of the deceased and awarded amount of Rs.20,000/- towards expenses incurred on
last rites to the claimants in both the claim petitions respectively on the basis of decision of an Hon’ble Coordinate Bench of this Court in FAO
No.951 of 2009 titled Oriental Insurance Co. Ltd. Vs. Gurdev Singh etc. decided on 30.08.2012 and decision of Hon’ble Supreme Court inR ajesh
and others Vs. Rajbir Singh and others : 2013(3) Civil Court Cases 15.
20. The question which arises is as to whether the structured formula given in Second Schedule of the M.V. Act can be deviated from in assessing
compensation payable to the claimants in petition filed under Section 163-A of the M.V. Act.
21. In Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala : 2001(2) RCR (Civil) 62 9Hon’ble Supreme Court rejected the contention of the
claimant that right to get compensation under Section 163-A of the M.V. Act is in addition to the no-fault liability. Hon’ble Supreme Court held
that the procedure of giving compensation under Section 163-A is inconsistent with the procedure prescribed for awarding compensation on fault
liability. Under section 163-A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability claimant
is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicles concerned. In view of the non-obstante clause
“notwithstanding anything contained in this Act†the provisions of Section 163-A would exclude determination of compensation on the principle of
fault liability.
22. In Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., 2004(2) R.C.R. (Civil) 46 6Hon'ble Apex Court observed that 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 the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163- 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. The
conclusion given in Para No.62 of Deepal Girishbhai Soni's case (supra) is as under:-
We, therefore, are of the opinion that Kodala (supra) 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/- per annual shall be treated as a cap. In our opinion, the proceeding
under Section 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 other claims are required to be determined in terms of Chapter XII of the Act.
23. Para No.67 of Deepal Girishbhai Soni's case (supra) is also extracted as hereunder:-
Section 163-A was introduced in the year 1994. The executive authority of the Central Government has the requisite jurisdiction to amend the Second
Schedule from time to time. Having regard to the inflation and fall in the rate of bank interest; it is desirable that the Central Government bestows
serious consideration to this aspect of the matter.
24. Hon'ble Supreme Court observed in Oriental Insurance Company Limited v. Meena Variyal & Ors., 2007(2) R.C.R. (Civil) 698 as under:-
We think that the law laid down in Minu B. Mehta & Anr. v. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the legislature while
enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything
contained in the Act or in any other law for the time being in force that the owner of a 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 the motor vehicle, compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, 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 concerned. Therefore, the victim of an accident or his dependants have an option either to
proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have
necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed
under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to
establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."" (emphasis supplied)
25. In FAO No.3460 of 2004 titled as Mohit Garg and another Vs. Afrojan and others and FAO No.4579 of 2004 titled as Afrojan and others Vs.
Mohit Garg and another decided on 15.05.2014 an Hon’ble Coordinate Bench of this Court while noticing that in several cases Hon’ble
Supreme Court pointed out the defects in Section 163-A and Second Schedule of the M.V. Act but the Hon’ble Supreme Court did not go as far
as re-writing Section 163A or Schedule II and on the other hand exhorted the legislature to set right the provisions observed that departure from
Section 163A and Second Schedule of the M.V. Act except in the circumstances and the restricted field concerning child permitted by the
Hon’ble Supreme Court in Master Mallikarjun Vs. Divisional Manager, The National Insurance Company limited and another 2013 ACJ 2445
(SC) is not permissible as the same would mean judicial impertinence to a legislative mandate.
26. In Bajaj Allianz General Insurance Company Limited Vs. Sonu and another : 2016(3) PLR 701 an Hon’ble Coordinate Bench of this Court
observed that Section 163-A is a legislative innovation providing for strict liability that relieves the claimant of having proved the normal principles of
fault that is normative basis for claiming compensation on the principle of tort. The section contains, therefore, certain inherent limitation on its
applicability. The limitation set down under Section 163-A cannot be crossed over on imaginative grounds which are opposed to the statutory
provision. In view of the law laid down by Hon'ble supreme Court in Hansrajbai V. Kodala's case (supra), Deepal Girishbhai Soni's case (supra) and
Meena Variyal's case (supra), in the considered opinion of this Court, if a petition is filed under Section 163-A of the Act, the compensation has to be
awarded in terms of the Second Schedule and there can be no deviation from the same.
27. In FAO No.951 of 2009 titled Oriental Insurance Co. Ltd. Vs. Gurdev Singh etc. decided on 30.08.2012 an Hon’ble Coordinate Bench of this
Court observed that the decisions of the Hon’ble Supreme Court in Sarla Verma’s Case (Supra) and Raj Kumar vs Ajay Kumar and Another
: (2011) 1 SCC 343 case can be suitably applied even in cases falling under section 163-A and a deviation may be made from the formula given in
Second Schedule of the M.V. Act in assessing/ awarding compensation under the heads medical expenses, funeral expenses, loss of consortium/ loss
of estate. In this regard courts can resort to the ratio of the decisions of the Hon’ble Supreme Court in Sarla Verma’s Case (Supra) and Raj
Kumar’s Case (Supra) but with due respect, the view taken by the Hon’ble Bench in the above-said case being in conflict with the decisions
of Hon’ble Supreme Court in Hansrajbai V. Kodala's case (supra), Deepal Girishbhai Soni's case (supra) and Meena Variyal's case (supra) does
not lay down the correct proposition of law.
28. The position of law which emerges from the above referred judicial precedents is that in claim petition filed under Section 163-A of the M.V. Act,
amount of compensation has to be assessed as per the structured formula embodied in the Second Schedule of the M.V. Act which cannot be
deviated from except in case of child as directed by Hon’ble Apex Court in Master Mallikarjun’s Case (Supra).
29. In claim petition filed under Section 163-A of the M.V. Act multiplier has to be applied on the basis of age of the deceased as per the structured
formula provided for in the Second Schedule of the M.V. Act. The decision in Smt. Sarla Verma’s Case (Supra) was restricted in applicability to
claim petitions filed under Section 166 of the M.V. Act and was not applicable to the present claim petitions under Section 163-A of the M.V. Act.
Therefore, multiplier has to be applied as per the provisions of Second Schedule of the M.V. Act and not as per the directions given in Smt. Sarla
Verm’s Case (Supra). Since, the deceased were aged about 23 years at the time of their death, multiplier of 17 was applicable for assessment of
the amount of compensation as per Second Schedule of the M.V. Act and the Tribunal wrongly applied the multiplier of 18. When so applied the
amount of death compensation comes to (Rs.3300 x 12 x 17 =) Rs.6,73,200/-. Out of the above said amount 1/3rd was liable to be deducted towards
personal expenses of the deceased as per Note I to Para I of the Second Schedule of the M.V. Act and the Tribunal wrongly deducted 1/4th instead
of 1/3rd of the income of deceased towards their personal expenses. On deduction of Rs.2,24,400/- being 1/3rd of the above-said amount towards
personal expenses of the deceased, amount of compensation payable to the claimants comes to Rs.4,48,800/-.
30. As per the provisions made in the Second Schedule to the M.V. Act amount of Rs.2,000/- is payable towards funeral expenses, amount of
Rs.5,000/- is payable towards loss of consortium if beneficiary is spouse and amount of Rs.2500/- is payable towards loss of estate. The observations
made by the Apex Court in Pranay Sethi’s Case (Supra) as to award of amount of Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of
consortium and Rs.15,000/- towards funeral expenses and the observations in Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru
Ram and others, 2018 (4) R.C.R. (Civil) 333 as to award of Rs.40,000/- each towards loss of parental, spousal and filial consortium, being restricted in
applicability to claim petitions filed under Section 166 of the M.V. Act are not applicable to the present claim petitions under Section 163-A of the
M.V. Act. In view of the provisions made in Second Schedule of the M.V. Act, the claimant No.1-widow in both the claim petitions were entitled to
payment of amount of Rs.5,000/-respectively towards loss of consortium and the claimants in both the claim petitions were entitled to payment of
Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate and the Tribunal wrongly awarded amount of Rs.20,000/- to the claimants
towards expenses incurred on last rites and amount of Rs.75,000/-to claimant No.1-widow towards loss of consortium in both the claim petitions
respectively.
31. It follows from above discussion that the claimants are entitled to payment of compensation of Rs.4,58,300/- in both the claim petitions respectively
and the Tribunal committed material irregularity by awarding amount of Rs.6,29,600/- to the claimants in both the claim petitions respectively which is
liable to be reduced and the impugned award is liable to be modified accordingly and the excess amount paid to the claimants is liable to be refunded
by them accordingly.
32. It may be observed here that in the present case the Tribunal directed the respondents No.1 to 3-driver, owner and insurer to pay the
compensation amount jointly and severally but in view of the provisions made in Sub-Section (1) of Section 163-A, respondent No.1-driver is not liable
to pay compensation and the impugned award is liable to be modified in this regard also.
33. The appeals are allowed with costs and the impugned award is modified to the effect that the claimants in both the claim petitions are entitled to
payment of compensation of Rs.4,58,300/-respectively from respondents No.2 and 3 with costs and interest at the rate of 7.5% per annum and the
claimants shall be liable to refund the excess amount of compensation, if already paid to them, accordingly.