By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellants – original claimant has challenged the judgment and order dated 14th July 2010 passed by the learned Motor Accident Claims Tribunal (Aux.), Surat in MAC Petition No.617 of 2017 whereby the Tribunal has partly allowed the claim petition filed by the claimants. 2 The short facts of the present appeal are that on the date of the incident i.e. on 3rd June 2007 the deceased Rajuben along with his son, applicant No.2 was travelling by a motor cycle bearing No.GJ-5-EP 8564 and when they reached Salaiya to Mandvi Road at about 21.00 hours, due to sudden storm, Rajuben had fallen down from the motorcycle due to which she sustained fatal injuries. The claimants, husband and son of the deceased, therefore, filed claim petition claiming the compensation of Rs.3,68,000.
3 The Tribunal considering the income of the deceased at Rs.2,000 per month arrived at Rs.24,000 per annum and therefrom deducted 1/3rd towards expenses and as per Second Schedule applied the multiplier of 15 and thereby awarded Rs.2,40,000 towards future economic economic loss. The Tribunal has also awarded Rs.10,000/- towards loss of consortium, Rs.2,000 towards medical expenses, Rs.10,000 towards loss to estate and Rs.2,000 for funeral expenses. Thus, in all the Tribunal has awarded Rs.2,64,000 to the claimants along with the interest at the rate of 9% per annum. The insurance company filed the present appeal challenging the same.
4 Heard learned counsel for the appellant and perused the record.
5. Mr Nanavati, learned counsel for the appellant has submitted that Claimant No.2, who is son of the owner of motorcycle and mother of the deceased himself wasriding the motorcycle and therefore the Tribunal has committed an error in considering the claim of the claimants under Section 163A of the Motor Vehicles Act and therefore the same required to be allowed. In support of his submission, he relied upon the decision of the Ningamma And Another v. United India Insurance Company Limited, (2009) 13 SCC 710.
6. In the case of Ningamma (supra) the deceased therein the deceased was traveling on Hero Honda Motor Cycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motor cycle was proceeding on Ilkal- Kustagl, National Highway, a bullock cart proceeding ahead of the said motor cycle carrying iron-sheet suddenly stopped and consequently deceased-Ramappa who was proceeding on the said motor cycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Govt. Hospital, Ilkal, he died. The aforesaid motor cycle in which the deceased was traveling at the time of accident was insured with the Insurance Company, namely, the United India Insurance Co. Ltd. and the said motor cycle was owned by one Paranagouda. Wife of the deceased and Appellant No.2 – minor son of the deceased filed a claim petition under Section 163-A of Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal No. VI, Bijapur, Karnataka (in short ‘the Tribunal’) being M.V.C. No. 896/2000 praying for compensation of Rs. 8,10,000/- along with future interest etc. on the ground that at the time of accident the deceased was a healthy person, aged about 32 years and engaged in agriculture, earning Rs. 5,000/- per month and was the sole earning member in their family. The Tribunal held that in absence of definite and cogent proof of income, the income of the deceased was to be considered as Rs. 60/- per day as per the provisions of the Minimum Wages Act. Accordingly, the monthly income of the deceased was ascertained as Rs. 1,800/- and yearly income as Rs. 21,600/- from which 1/3 was to be deducted leaving thereby Rs. 14,400/- as the net income of the deceased. Since the age of the deceased was found to be in between 30 to 35 years, the relevant multiplier to be applied was ‘17’. Accordingly, the Tribunal under its award dated 09.02.2005 partly allowed the claim petition filed by the appellants holding that the said appellants are entitled to receive a total compensation amount of Rs. 2,59,800/- along with interest at the rate of 8% p.a. from the respondent – Insurance Company. Aggrieved by the said decision, the Insurance Company preferred an appeal being Miscellaneous First Appeal No. 4152/2005 before the High Court of Karnataka on the ground that the accident occurred due to the fault of the deceased and claim petition before the Tribunal was not maintainable as Section 163-A of the Act is not applicable unless there was another vehicle involved in the accident. The other ground of challenge was that the Tribunal erred in allowing the claim petition when the total income of the deceased was stated to be more than Rs. 40, 000/- per annum. The High Court by its judgment and order dated 08.08.2007 allowed the appeal holding that the claim petition before the Tribunal was not maintainable as there was no tort- feasor involved. It was also held that the claim Section 163-A of the Act was barred when the income of the claimant is stated to be above Rs. 40,000/- per annum. Consequently, the High Court set aside the judgment and award passed by the Tribunal and directed the appellants herein to refund the amount of compensation to the Insurance Company. The appellants preferred two Special Leave Petitions, one bearing No. 25497/2008 against the judgment and order dated 08.08.2007 passed in Miscellaneous First Appeal No. 4152/2005. The Supreme Court while disposing of the said appeals observed as under:-
“18. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the ‘third party’, and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.
“19. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon’ble Justice S.B. Sinha is a party, it has been 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.
“20. It was held in the said decision that Section 163-A 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 163-A 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 163-A of the MVA.
“21. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.”
In the present case Claimant No.2 borrowed the motorcycle from his father, opponent No.1 and because of the thunder storm Rajuben, pillionrider, fell down from the motorcycle and died because of the same. In the present case also there is no tortfeasor and deceased being son of the original owner he cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. The liability under section 163-A of the MVA is on the owner of the vehicle and therefore 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 163-A of the MVA. In view of the above discussion and keeping in mind the principle laid down in the case of Ningamma & Anr. (supra), I have no hesitation to hold that the judgment and award of the Tribunal is contrary to law and is liable to set aside and the matter is required to be adjudicated afresh.
7. In the result, the appeal is partly allowed and the following order is passed:
(i) The impugned judgment and award is quashed and set aside.
(ii) The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
(iii) This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be influenced by the order of this Court.
(iv) The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit and the claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(v) It is, however, made clear that interest accruing on the said Fixed Deposit shall be accumulated and will be adjusted at the time of the final award.
(vi) The amount awarded & already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
(vii) Since the matter is pending since long, the Tribunal is directed to dispose of the case as expeditiously as possible and in any case not later than two years from the date of receipt of the writ of this Court.
(viii) It is observed that this Court has not entered into the merits of the matter and the Tribunal shall consider the same afresh, without being influenced by the fact that this Court has quashed its earlier judgment and award.
(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.
(K.S. JHAVERI, J.) *mohd