How to decide a claim petition preferred under section 163-A of MV Act:-
As
per the ratio laid down in the case of Deepal Girishbhai Soni and Ors. v. United
India Insurance Co. Ltd., Baroda
(2004) 5 SCC 385 = AIR 2004 SC 2107, Hon'ble Full Bench of Apex Court has held that claim petition preferred u/s 163A is under 'No
Fault Liability'. Whereas, in the case of National Insurance Company Ltd. v. Sinitha, reported in AIR
2012 SC 797, Hon'ble Supreme Court has held that claim petition preferred u/s 163A is under 'Fault Liability'.
It does not become clear from the facts of the of Deepal Girishbhai Soni's (supra) case as to whether, more than one vehicles were involved in the said accident or not but from the reading of the Sinitha's (supra) case, it becomes clear that there was only one vehicle involved and question which was required to be decided by Hon'ble Apex Court as to whether, insurer has succeeded in proving that claimant himself was negligent in causing the accident or not.
From the reading of both the above referred ratios, it appears that there are conflicting views and, therefore, each claim petition may be decided on the basis of it's facts. That is to say, if only one vehicle is involved, point of negligence must be decided.
While answering the reference, Hon'ble Full Bench has held that ratio laid down in the case of Sinitha (supra) is not a good law and claim petition preferred u/s 163A is based on No Fault Liability. Date of decision 24th November, 2017.
It is to be noted that in a claim petition, preferred u/s 163A of the Act, income of the injured claimant or the deceased should not be more that Rs.40,000/ per annum. If, the income of the injured claimant or the deceased is more that Rs.40,000/ per annum, in such cases, claimant/s may be given an option to convert the same under Section 166 of the Act. If claim petition is not converted, even after the order/direction, same be dismissed. In this regards reference many be made to ratio laid down in the case of Deepal Girishbhai Soni (supra).
It also required to be noted that in the Fatal injury cases, multiplier cannot be applied as same is applied only in the cases where claim petition is preferred by the injured. Reference be made to ratio laid down in the case of National Company Ltd. Versus Gurumallamma, reported in AIR 2009 SCW 7434, para No.8. Similar kind of observations are made by Hon'ble Apex Court in the case of Sarla Verma (supra), at Para No.17 (page No.3112 in AIR), which reads under:
“... Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs. 40,000/ by applying the formula : (2/3 x A1 x M), that is twothirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation”.
From the above referred ratios, laid down by Hon'ble Apex
Court, it becomes amply clear that Tribunal is not required to make calculation of compensation on the basis of application of multiplier. But Tribunal is only required to grant compensation as per ScheduleII of the Motor Vehicle Act, taking into considering the age and income of the deceased and figure shown against the age and income of the deceased. For an example, if, monthly income of the deceased who was aged about 48 years at the time of accident, is assessed as Rs.2,500/ per month (Rs.30,000/ per annum), how the compensation should be calculated. Since Rs.30,000/ per annum is not shown anywhere in column of “ANNUAL INCOME” of the Second Schedule of the Act, now, the question, is how the amount of compensation to be calculated. In such cases, average of figures in the income group of Rs.24,000/ per annum and Rs.36,000/ per annum i.e Rs.2,86,000/ and Rs.4,32,000, respectively are required to be taken into consideration. Average of Rs.2,86,000/ and Rs.4,32,000, comes to Rs.3,59,000. Out of the said amount of 3,59,000, 1/3 is required to be deducted in consideration of expenses incurred by deceased towards maintaining himself and, therefore, net amount of future income loss comes to approximately Rs.2,40,000/. [Reference: National Insurance Com. Ltd. v/s
P.C. Chacko, reported in 2012 ACJ 1065 (Devision Bench of
Hon'ble Kerala High Court, Ernakulan Bench), NIA Com v/s Ramraj bhagvandas Moriya, 2017(3)GLH (NOC)1]
It is to be remembered that in every claim petition preferred u/s 163A of the Act, whether the deceased is married or not, unlike as claim petition preferred u/s 166 of the Act,
onethird (1/3rd) amount from the actual income of the deceased should be deducted towards personal and living expenditures of the deceased.
Over and above the future income loss, claimant/s is/are entitled to such amount, specified under the Second Schedule of the Act. However, in the case of Sapan v/s United India Insurance Com. Ltd., reported in AIR 2008 SC 2281, held that when claim petition preferred u/s 163A and claimant would remain crippled throughout life and would have no enjoyment for life, Tribunal can award further sum of Rs. 75,000/ for future medical treatment.
The ratio laid down in the case of Sinitha (supra) was referred to the Full Bench for consideration. Please refer to United India Insurance Com. Ltd. v/s Sunil Kumar, reported in 2013 ACJ 2856 (SC). And, it has been held that ratio laid down in the case of Sinitha's is not good law. 2018 ACJ 1 U.I.I. Com. V/s. Sunil Kumar.
In the case of Oriental Insurance Company Ltd. v/s Rajni Devi, (2008) 5 SCC 736, wherein Hon'ble Apex Court has categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163A of the
MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163A of the MVA. Above referred ratio is applicable in the case where the deceased/injured not being the owner of the vehicle and if he borrows the such vehicle from its real owner, in such case the deceased cannot be held to be employee of the owner of the vehicle although he is authorised to drive the said vehicle by its owner, and therefore, under such circumstances, he steps into the shoes of the owner of the vehicle. Similar views are taken in by the Hon'ble Apex Court in the case of New India Assurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC 417 and Ningamma v/s United India Insurance Co. Ltd., reported in AIR 2009 SC 3056 and Ramkhiladi v/s U.I.I. Com. 2020 (2)
SCC 550.
Claim petition u/s 163A by the LRs of the deceased who himself was negligent in the accident High Court held that since deceased himself was negligent, claim petition can't be allowed – SC held that point of negligence is not required to be decided in a claim petition preferred u/s 163A of the MV Act – Claim petition allowed. Shivaji v/s. Divisional Manager, 2018 ACJ 2161 = AIR 2018 SC 3705 = 2019 (12) SCC 395.
But in the case of N.I.Com. V/s. Ashalata Bhowmik, AIR 2018 SC 4133 = 2018 ACJ 2825 (SC) Hon'ble Supreme Court has held that when drivercumowner causes the accident
himself and no other vehicle is involved, claim petition under the MV Act is not maintainable. But awarded Rs.2,00,000 under the contract of insurance under the personal accident indemnification.
Posts
0 Comments