This appeal under Section 173 of Motor Vehicle Act, 1988 (hereinafter referred to as 'M.V. Act') has been preferred by New India Assurance Company Ltd. against the award dated 07.10.2009 passed in Motor Accident Claims No. 22 of 2009 filed under Section 163 (A) of M. V. Act delivered by Sri Nisar Ahmad, Motor Accident Claim Tribunal / Additional District Judge, Court No.6, Faizabad (hereinafter referred to as 'Tribunal') wherein a sum of Rs. 4,12,500/- has been awarded as compensation with pendente lite and future simple interest at the rate of 6% per annum to the claimant-respondent Sri Sanjeev Kumar, who is the brother of deceased of this case namely Ajay Kumar @ Sintu.
2. Brief facts of the case are that on 12.01.2009 at 2.30 p.m., the deceased Ajay Kumar @ Sintu, who was the driver of Vikram Tempo having registration No. U.P. 42-T/5674, was going on the road of Rekabganj on Vikram Tempo. When he was proceeding from Ayodhya to Faizabad his Vikram Tempo has turned turtle, Ajay Kumar received injuries. When he was en-route to hospital succumbed to the injuries. The deceased Ajay Kumar @ Sintu was an unmarried young boy aged about 21 years. He was a driver and was getting Rs.3,000/- per month as salary.
3. Sudhir Kumar Malhotra respondent No.2 was the owner of Vikram Tempo bearing registration No. U.P. 42-T/5674 which was insured with appellant/ Insurance company on the date of accident.
4. The claimant respondent Sanjeev Kumar aged about 25 years, the elder brother of the deceased filed motor Accident Claim Petition on 29.01.2009 claiming therein a compensation of Rs. 4,13,000/-. He pleaded in the claim petition that the parents of the deceased had already expired and the claimant-respondent is the sole legal representative/heir of the deceased. Initially the claim petition was filed under Section 166 of Motor Vehicle Act but later on by moving an application for amendment got the petition amended and claim was converted under Section 163(A) instead of Section 166 of the M.V. Act.
5. The petition was contested by filing written statement by the owner of the vehicle in question as well as the Insurance Company. In written statement the owner respondent admitted that the deceased Ajay Kumar @ Sintu was the driver of tempo involved in accident and died in the said accident.
6. The Insurance Company pleaded that driver was not having any valid and effective driving licence on the date of accident and pleaded breach of terms of policy, as such the Insurance Company is not liable to pay compensation. It was also alleged that petition under the provision of M.V. Act is not maintainable. The claimant could get the compensation under the provision of Workmen's Compensation Act (hereinafter referred to as W.C. Act). It was further pleaded that the claimant is not dependent upon the deceased and as such, he cannot present the claim petition for compensation.
7. The Tribunal framed as many as five issues.
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8. The Tribunal while deciding issue No.1 held that deceased Ajay Kumar @ Sintu was scummed to injuries in the motor accident as alleged by the claimant?
9 While deciding issue No.2, the tribunal held that the aforesaid vehicle was duly insured with the appellant company from 14.12.2008 to 13.12.2009 and decided the same in favour of the owner of the Vikram Tempo.
10. While determining the issue No.3, the tribunal observed that deceased was having a valid and effective driving licence to drive light motor vehicle. It was further observed that in view of the decision reported in 2008 (1) TAC page 812 = (2008) 3 SCC 464, National Insurance Company Ltd. Vs. Annappa Irappa Nesaria and others driving licence to drive light motor vehicle would be valid because the vehicle in question having 1250 kg weight. The weight of the Vikram Tempo is not more than 7500 kg, therefore, the driver was having valid and effective driving licence and consequently held that the driver was effective valid driving licence to drive the Vikram Tempo.
11. While deciding issue no.4, the Tribunal held that Vikram Tempo was duly registered and having valid permit, which was filed on the record as paper no. 20-C. The fitness certificate was also found valid on the date of accident, therefore, issue No.4 was also decided in favour of owner respondent.
12. While deciding issue no.5, the Tribunal after appreciating the evidence on record adduced by the parties awarded the compensation of Rs. 4,12,500/- with 6% simple pendente lite and future interest. The liability to pay the compensation was fastened with the Appellant holding therein that the Insurance Company failed to establish any breach of terms of the insurance policy.
13. After considering the findings recorded on issue Nos. 1, 2, 3, and 4 the tribunal held that petitioner is brother of the deceased and as such is the legal representative representing the estate of the deceased and is competent to present the petition. It is also established that he is dependent upon the deceased. The Tribunal in support of their findings relied upon in this regard on judgments reported in 2006 (III) United India Insurance Company Ltd. Vs. Gyatri Devi and Ors., 2009 (III) TAC,564 Karnataka Divisional Control Chief Custodian of Internal Accident Fund, Banglore Vs. K.C. Rupa. It was further observed that the deceased was an income of Rs.3000/- per month and after deducting 1/3 amount for own expense of the deceased fixed the dependency of the claimant and awarded compensation of Rs. 4,08,000/- after applying multiplier of 17 in terms of second schedule of section 163 (A) of M. V.Act. A sum of Rs. 2000 for last rites and Rs. 2500/- for loss of estate had also been added. Thus, the total compensation of Rs. 4,12,500 has been awarded.
14. Aggrieved by the aforesaid award, the present appeal has been filed by the Appellant/Insurance Company.
15. We have heard the learned counsel for the parties and perused the record of the appeal as well as of the Tribunal.
16. Sri T.J.S.Makkar, learned counsel for the appellant submits that admittedly the claimant of this case is a married person having his own family and is also an employed person. The deceased is his brother who was unmarred at the time of accident. Therefore, it cannot be said that the claimant was dependent upon the deceased rather deceased was dependent upon the claimant.
17. It was further submitted that this petition was filed under Section 163 (A) of the M.V.Act, but the same has been repealed from the statute book as held in Division Bench's judgment of this Court in FAFO 518 of 2005 U.P. Rajya Sadak Parivahan Nigam Vs. Ram Prakash & Ors and in Writ Petition 6027 (MB) of 2008 Niranjan Singh and Ors. Vs The State of U.P. and Others decided on 21.12.2006 and 04.08.2008 respectively, therefore, the petition U/S 163(A) of M.V.Act filed by the petitioner is not maintainable. The petition at the most could be treated under section 166 and 140 of M.V. Act
18. It was further submitted that the petition was filed under Section 163 (A) of the Act., so, the petitioner could get only benefit of section 140 because the case is based on no fault liability as held in Smt. Majuri Bera Vs Oriental Insurance Company Ltd & Another, 2007(2) TAC 431(S.C.). In view of the aforesaid situation being legal representative of the deceased the claimant at the most would be entitled to the compensation to the tune of Rs. 50,000/- under Section 140 of the M.V.Act.
19. The learned counsel for the insurance company further submits that in this case admittedly the driver of the vehicle was holding a driving license to drive 'light motor vehicle' and not for the 'transport vehicle', therefore, the licence held by the driver of the Vikram Tempo was not valid and effective at the time of accident. Consequently, the insurance company should be exonerated from the liability to pay the compensation. He relied upon the judgment of the Apex Court in Oriental Insurance Company Ltd. Vs. Angad Kol, AIR 2009 SC 2151.
20. It was further submitted by learned counsel for the appellant that admittedly in this case the deceased is the employee of owner of the vehicle, therefore, the petition would not be maintainable under the provision of M.V. Act and the same is cognizable in different forum i.e., under Workmen's Compensation Act. On this count too the petition is liable to be dismissed.
21 Learned counsel for the owner respondent submits that the vehicle in question comes within the category of light motor vehicle because its weight is also less than 7500 Kg. From the perusal of the registration certificate available on record as paper 9-C, it appears that it is passenger carriage and the unladen weight is 626 Kg and laden weight is 1250 Kg and having sitting capacity of seven persons. In this regard, he relied upon the judgment of National Insurance Company Ltd. Vrs. Annapa Irrapa Nesaria @Nesaragi and Others, (2008) 3 SCC 464. It was submitted on the strength of the above authority that driving licence meant for 'light motor vehicle' would valid and effective for driving the vehicle in question and there is no breach of terms of the policy.
22. The learned counsel for the petitioner submits that in Smt. Hafizun Begam Vs. Md. Ikram Heque and others, 2007 (4) TAC 1 (SC) and Oriental Insurance Company Ltd Vs. Naresh Chandra Agrawal and others, 2000(2) TAC 660 All.(DB) it has been categorically held that legal representatives of deceased of motor accident may present a petition for compensation under the provisions of M.V.Act.
23. It was further submitted that even if the Appellant-Insurance Company establishes breach of any terms of policy of insurance, even then the petitioner would be entitled to compensation because of the fact that deceased of this case comes under the category of Third party. At the most the Insurance Company may recover the amount from the owner of the vehicle after payment of compensation to the petitioner.
24. Considering the submission of parties' counsel, followings are the questions/points arise for determination for appeal.
(iii) Whether the motor accident claim petition filed by the legal representatives of the driver of the vehicle against owner and insurer of the vehicle shall be cognizable by the Motor Accident Claim Tribunal or by commissioner under the Workmen's Compensation Act ?
(iv)Whether the provision of Section 163 (A) had been deleted from the statute book ,if yes, what would be the effect ?
Re: Point No.1
25. Admittedly, in this case the deceased, who was the driver of the vehicle in question, was holding a driving licence for driving 'light motor vehicle' (NT)/ motor cycle. This licence was valid for a period of 20 years i.e. 21.12.2006 to 22.12.2026. These facts are not in dispute between the parties. This licence was not having any endorsement for plying transport vehicle. The Vikram Tempo would be a 'transport vehicle' or not has to be examined on the basis of the provisions contained in M.V. Act.
26. The counsel for the owner of the vehicle would submit that in view of the decision rendered by the Apex Court in Annappa Irappa's case (supra) the Vikram Tempo comes within the definition of light motor vehicle because its laden weight is less than 7500 Kg.
27. On the contrary, the learned counsel for the appellant submits that judgment relied upon by the counsel for the petitioner is based on unamended law and is applicable prior to the amendment of dated 28.03.2001 made in the M.V. Act. In Angad Kol's case (supra) the Apex Court considered the amended provisions and found that a person holding a driving licence for driving light motor vehicle cannot be permitted to drive the transport vehicle. It was further submitted that Vikram Tempo is transport vehicle.
28. It will be proper to look into the statutory provision in this regard under the M.V. Act. Section 2 of the M.V. Act contains definitions. From the perusal of this section, we find that motor vehicle and its different categories were defined under different clause which are reproduced hereinbelow:-
Section2--Defnitions.- In this Act,unless the context otherwise requires,-
(2) "articulated Vehicle" means a motor vehicle to which a semi-trailer is attached (7) "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum -
(a)on a time basis, whether or not with reference to any route or distance; or
(b) from one point to another, and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes -
(i) a maxicab; and
(ii) a motor cab notwithstanding that separate fares are charged for its passengers;
11."educational institution bus" means an omnibus, which is owned by a collage,school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;
14. "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
16 "heavy goods vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
17 "heavy passenger motor vehicle" means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;
(18)"invalid carriage" means a motor vehicle specially designed and constructed, and not merely, adapted, for the use of a person suffering from some physical defect or disability, and used solely by or for such a person;
21 "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;
(22)"maxicab" means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward;
(23)"medium goods vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle;
(24) "medium passenger motor vehicle" means any public service vehicle or private service vehicle, or educational institution bus other than a motor cycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle;
(25) "motorcab" means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;
(26) "motor car" means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage;
(27) "motor cycle" means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;
(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty-five cubic centimetres;
(29) "omnibus" means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;
(33) "private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;
(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, includes a maxicab, a motor cab, contract carriage, and stage carriage;
(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, for the whole journey or for stages of the journey;
(43)"tourist vehicle" means a contract carriage constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf;
(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;
(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
29. Apart from the aforesaid categories of vehicle the Central Government has issued a notification showing therein the motor vehicle which are covered under the transport vehicle. This notification is also reproduce herein below for ready reference.
"In exercise of the powers conferred by sub-section 4 of section 41 of the Act the Central Government has specified the type of motor vehicles as mentioned in columns 1 and 2 of the table below:- Vide S.O.1248(E),dated 5th November,2004.
TABLE Transport Vehicle Non-Transport Vehicle (1) Motor cycle with side car for carrying goods (ii) Motor cycle with trailer to carry goods (iii) Motor cycle used for hire to carry one passenger on pillion and motorized cycle rickshaw for goods or passengers on hire. (iv) Luxury Cab (v) Three wheeled vehicles for transport of passenger / goods. (vi) Goods carrier trucks or tankers or mail carriers (N/1 - N/3 category) (vii) Power tiller and Tractors using public roads. (VIII) Mobile clinic or X-Ray van or library vans. (ix) Mobile workshops (x) Mobile canteens (xi) Private Service Vehicle (xii) Public Service Vehicle such as maxi cab, motor cab, stage carriages and contract carriages including tourist vehicles. (xiii) Educational Institution buses (xiv) Ambulances# (xv) Animal ambulances## (xvi) Camper+ vans or trailers (xviii) Fire tenders, snorked ladders, auxiliary trailers and fire fighting vehicles (xix) Articulated vehicles (xx) Hearses (xxi) Omnibus++ (I) Motor cycle with or without side car for personal use.1` (ii) Mopeds and motorized cycle (Engine capacity exceeding 25 cc) (iii) Invalid carriage (iv) Three wheeled vehicles for personal use. (v) Motor car (vi) Fork lift (vii) Vehicles or trailers fitted with equipments like rig, generator, compressor. (viii) Crane mounted vehicle. (ix) Agricultural Tractor and Power Tiller (x) Private service vehicle, registered in the name of an individual and if declared to be used by him solely for personal (xi) Camper van or trailer for private use (xii) Tow trucks, Breakdown Van and Recovery Vehicles. (xiii)Tower Wagons and tree trimming vehicles owned by Central, State and local authorities. (xiv) Construction Equipment Vehicles as defined in rule 2(ca)* # (a) "Ambulance" means vehicle specially designed constructed or modified and equipped and intended to be used for emergency transportation of persons who are sick, injured, wounded or otherwise incapacitated. ## (b) "Animal ambulance" means a motor vehicle intended to be used for the emergency transportation of sick, injured, wounded or otherwise Incapacitated animals. + (c) "Camper van" means a special purpose M1 category vehicle constructed to include living accommodation which contains at least the following equipment:- -Seats and table -Sleeping accommodation which may be converted from the seats -Cooking facilities, and -Storage facilities. This equipment shall be rigidly fixed to the living compartment; however, the table may be designed to be easily removable.
++ (d). The "Omnibus" has been kept in the category of transport vehicle with a view to bringing it under the purview of fitness regime as it is exhaustively used on road. However, the taxes to be levied on such vehicle would fall within the jurisdiction of State Governments.
* (e) Under rule 2 (ca), use of public road by Construction Equipment Vehicles is incidental to the main off-road function. However, when the public road is being used regularly for carrying on commercial activities, then Construction Equipment Vehicles such as dumpers and excavators being used for such activities, shall be deemed as transport vehicles.
30. From the perusal of the definition clause in M.V. Act the Motor vehicle,[Sec. 2 (28)] broadly divided in two parts:
(I) Motor Vehicle carrying goods called as "goods Carriage"(Sec 2(14), and (ii) Motor Vehicle carrying passengers. In category of "goods carriage" following vehicle are included (a) Heavy Goods vehicle Sec 2(16) (b) Medium Goods Vehicle Sec. 2(23) In the category of "Passenger Vehicle" following vehicle are included (a) Heavy Passenger Motor Vehicle Sec. 2 (17) (b) Medium Passenger Motor Vehicle Sec. 2(24) Apart from it "Light Motor Vehicle" [Sec. 2 (21)] include in both goods and passengers motor vehicle. 31. The vehicle in case in hand is 'Three wheeler Tempo' meant for carrying passengers as is evident from Registration certificate (paper No.9-C) available on record. The details of Registration certificate shows that; i-is for carrying passengers ii-having seating capacity of 7 iii-Unladen wight - 626 Kg iv-Laden weight -1250 Kg 32. Another document on record is permit (Paper No.10-C). These two documents shows that (A) The vehicle is a passenger vehicle having seating capacity is 7 (Seven), hence this vehicle will fall within the definition of 'Omnibus' Sec 2 (29) (B) The unladen and laden weight of the vehicle is less than 7500 Kg, hence is a 'light motor vehicle' Sec.2 (21).
( C) It has permit to ply it on specified route,so it would be a motor vehicle used for carrying passengers for hire or reward hence would be a' stage carriage' [Sec.2 (40)]motor vehicle and also fall within the category of 'public service vehicle' Sec. 2 (35).
(D) If a motor vehicle is a public service vehicle [2(35)] even if is a light motor vehicle shall fall within the category of 'transport vehicle'
33. From the perusal of Table of motor vehicles issued by Central Govern which meant under notification as stated above of dated: 5.11.2004 (supra) contains at item No.(v) 'Three wheeled vehicle for transport of passengers/goods', which has been shown in column no.1 as 'transport vehicle'. In view of the above, there remain no doubt that 'Vikram Tempo' in this case is a 'transport vehicle' with in the meaning and definition of Sec.2 (47) of M.V.Act.
34. Now the question for consideration is, whether driving licence to drive a light motor vehicle would be valid to drive 'Vikram Tempo' , which is established to be a 'transport motor vehicle' ?
35. Chapter II of the Motor Vehicle Act deals with licences of different type of motor vehicles. To decide present lis the relevant portion of the chapter 2 having section 3, 4, 5, 6, 9, 10,11, 12, 14, 18 and definition of 'driving licence' are also reproduce herein below.
"Section 2 (10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;
Section (3). Necessity for driving licence (I) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
Section 4. Age limit in connection with driving of motor vehicles.-
(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:
Provided that a motor cycle with engine capacity not exceeding 50cc may be driven in public place by a person after attaining the age of sixteen years.
(2) Subject to provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner's licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.
Section 5. Responsibility of owners of motor vehicles for contravention of sections 3 and 4.
No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle.
Section 6. Restrictions on the holding of driving licences (1) No person shall, while he holds any driving licence for the time being in force, hold any other driving licence except a learner's licence or a driving licence issued in accordance with the provisions of section 18 or a document authorising, in accordance with the rules made under section 139, the person specified therein to drive a motor vehicle.
(2) No holder of a driving licence or a learner's licence shall permit it to be used by any other person.
(3) Nothing in this section shall prevent a licensing authority having the jurisdiction referred to in sub-section (1) of section 9 from adding to the classes of vehicles which the driving licence authorises the holder to drive.
Section 9. Grant of Driving licence.
(1)Any person------------
(2)Every application------
(3)If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence:
Provided that, no such test shall be necessary where the applicant produces proof to show that-
a. (i)the applicant has previously held a driving licence and that the period between the date of expiry of that licence and the date of such application does not exceed five years; or
(ii) the applicant holds or has previously held a driving licence issued under section 18; or
(iii)the applicant holds a driving licence issued by a competent authority of any country outside India; and
(b). that the applicant is not suffering from any disease or disability which is likely to cause the driving by him of a motor cycle or, as the case may be, a light motor vehicle to be a source of danger to the public; and the licensing authority may for that purpose require the applicant to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8:
Provided further that where the application is for a driving licence to drive a motor vehicle (not being a transport vehicle), the licensing authority may exempt the applicant from the test of competence to drive prescribed under this sub-section, if the applicant possesses a driving certificate issued by an automobile association recognised in this behalf by the State Government.
(4) Where the application is for a licence to drive a transport vehicle, no such authorisation shall be granted to any applicant unless he possesses such minimum educational qualification as may be prescribed by the Central Government and a driving certificate issued by a school or establishment referred to in section 12.
Section 10. Form and contents of licences to drive (1)Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes,namely-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle;
(i) road-roller;
(j) motor vehicle of a specified description.
Section 11. Additions to driving licence (1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such documents and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.
(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application were for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.
Section 13. Extent of effectiveness of licences, to drive motor vehicles. A learner's licence or a driving licence issued under this Act shall be effective throughout India Section 14. Currency of licences to drive motor vehicles.
(1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years;
[provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and
(b) in the case of any other licence -
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of fifty years on the date of issue or, as the case may be, thereof -
(A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years, whichever is earlier;
(ii) if the person referred to in sub-clause (i) has attained the age of fifty years on the date of issue or, as the case may be, renewal thereof, be effective for a period of five years from the date of such issue or renewal:
Provided that every driving licence shall, notwithstanding its expiry under this sub-section, continue to be effective for a period of thirty days from such expiry.
Section 18. Driving licences to drive motor vehicles, belonging to the Central Government.
(I) Such authority as may be prescribed by the Central Government may issue driving licence valid throughout India to persons who have completed their eighteenth year to drive motor vehicles which are the property or for the time being under the exclusive control of the Central Government and are used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise (II) A driving licence issued under this section shall specify the class or description of vehicle which the holder is entitled to drive and the period for which he is so entitled.
(III) A driving licence issued under this section shall not entitle the holder to drive any motor vehicle except a motor vehicle referred to in sub-section (1).
(IV) The authority issuing any driving licence under this section shall, at the request of any State Government, furnish such information respecting any person to whom a driving licence is issued as that Government may at any time require.
36. The original driving licence of deceased driver is on record (as paper no.25-C). The perusal of it reveals that it has been issued for twenty years i.e, from 21.12.2006 to 20.12.2026 and is valid to drive light motor vehicle (NT)/motor cycle.
37. Section 3 of Motor Vehicles Act provides necessity of driving licence by a person for that he must hold an effect driving licence authorising him to drive the particular vehicle. Section 3 also provides that no person shall so drive a transport vehicle unless his driving licence specifically entitles him to do so. Section 4 provides that that no person under the age of 18 years shall drive a motor vehicle in any public place subject to exceptions as provided in the section. Section 5 deals with the responsibility of owner that he should not allow any person to drive his vehicle who does not hold a valid and effective driving licence and which contravene the provision of Sections 3 and 4. Section 6 provides that one person could retain only one driving licence and prohibit the use of licence granted to any person to be used by any other persons. Section 7 and 8 relates to grant of learner licence. Section 9 deals with granting of driving licences and to furnish necessary particular as required under this Section. Section 10 provides a prescribed form for issue of licence. Section 11 deals with addition to drive any other particular vehicle, if holding any licence to drive any vehicle on public place, the issuing authority if satisfied and finds compliance of other provision contained in section 9 may add the authority by making endorsement to drive the particular type of vehicle. Section 14 deals with different types of licence and their period for which they may remain valid. The provision contain in Section 14 deals with different period of validity for different type of driving licences. Learner lincence would be effective for six months from the date of issuance, for a transport vehicle the licence would be effective for three years. For those transport vehicle carrying goods of dangerous and hazardous nature would be effective for the period of one year and in any other cases generally licence would be issued for 20 years or unless the persons attained the age of 50 years. After 50 years renewal would for a maximum period of 5 years. Section 15 provides renewal of driving licence and Section 18 makes provision of driving the vehicle belonging to Central Government. The scheme framed relating to driving licences makes it abundantly clear that no person would drive a transport vehicle unless he is specifically authorised for it by a competent authority.
38. In the present case the deceased was having a driving liccence to drive light motor vehicle/motor cycle. The validity of licence is for 20 years and not for three (3) years as evident from the perusal of licence itself. It has no authorization of the competent authority to drive any category of transport vehicle. It is clearly mention in bracket "NT" makes it clear "Not Transport", and means not to be a transport light motor vehicle. As stated above, Vikram Tempo, the vehicle involved in the accident in question, found to be a transport vehicle, therefore, in view of the provision contained in the Motor Vehicles Act the deceased was not authorised to drive Vikram Tempo at the time of accident.
39. The counsel for the petitioner relying upon the judgment of Hon'ble Apex Court in Annappa Irappa's case (supra) would submit that in view of judgment rendered in the aforesaid case a driving licence to drive light motor vehicle would be valid to drive the Vikram Tempo whose laden weight is less than 7500 Kg.
40. The learned counsel for the appellant cited judgment of Angad Kol's case (supra) wherein the judgment in Annappa Irappa's case (supra) has been considered and distinguished on the ground that Annappa Irappa's case (supra) is based on the provisions contained in Motor Vehicle Act prior to amendment of 2001, so in view of the amended provisions the Annappa Irappa's case (supra) after amendment made in 2001 cannot be followed. It would be necessary to reproduce relevant paragraph of Angad Kol's case (supra) "16. Had the driving licence been granted for transport vehicle, the tenure thereof could not have exceeded to three years.
In National Insurance Co. Ltd. v. Annappa Irappa Nesaria [(2008) 3 SCC 464] this Court noticed the aforementioned development in the matter of grant of licence to a transport vehicle stating that the same became effective from 28-3-2001 in the following terms:
"20. From what has been noticed hereinbefore, it is evident that ''transport vehicle' has now been substituted for ''medium goods vehicle' and ''heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time to cover both ''light passenger carriage vehicle' and ''light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.
21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law."
41. The effect of the different terms of licences granted in terms of the provisions of Sections 2(14) and 2(47) has also been noticed by Apex Court in New India Assurance Co. Ltd. v. Prabhu Lal [(2008) 1 SCC 696 : (2008) 1 SCC (Cri) 308], relevant part is being reproduced herein below (SCC pp. 704-06, paras 30 and 37-38), "30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a ''transport vehicle'. It was submitted that the insured vehicle was a ''goods carriage' and was thus a ''transport vehicle'. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in the absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation.
***
37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is ''light motor vehicle', but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in the absence of requisite endorsement and the Insurance Company could not be held liable.
38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
42. The Hon'ble Supreme Court distinguished its earlier judgment in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. [(1999) 6 SCC 620 : 1999 SCC (Cri) 1170], stating: (Prabhu Lal case [(2008) 1 SCC 696 : (2008) 1 SCC (Cri) 308] , SCC p. 707, para 41 "41. In our judgment, Ashok Gangadhar [(1999) 6 SCC 620 : 1999 SCC (Cri) 1170] did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.
However, in this case, the finding of fact arrived at that the vehicle in question was not proved to be a goods vehicle is not correct. The Regional Transport Officer, in his deposition, stated that the vehicle in question was a goods vehicle.
From the discussions made hereinbefore, it is, thus, proved that Respondent No1 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the record."
43. In the aforesaid facts and circumstances, we hold that in the case in hand Vikram Tempo is a transport vehicle and the deceased Ajay Kumar @ Sintu who was the driver of the Vikram Tempo having registration No. UP 42-T 5674, was having a driving licence to drive light motor vehicle and not the transport vehicle. Therefore the deceased was not having any valid and effective driving licence to drive the Vikram Tempo at the time of accident.
44. The effect of this finding would be that the Appellant Insurance Company after making the payment of awarded compensation to the petitioner shall be entitled to recover the amount from Owner of the Vehicle as held by this Court in F.A.F.O. No. 893 of 2009 National Insurance Co. Ltd., Through its R.M. Vs. Smt. Gita Mishra and others decided on 6.8.2012 Point No.1 is accordingly decided.
Point No.2
45. It is not in dispute that petitioner is the real elder brother of deceased. It is also not in dispute that the deceased was an unmarred young boy. It is also not denied that petitioner was also a driver of another vehicle and was getting a salary of Rs. 2500 per month as is evident from the record. The petitioner is married person.
46. It is not in dispute that the petitioner being real brother of the deceased is the legal representative and represent the estate of the deceased. As per the evidence on record he being real brother is the only legal representative/ legal heir of deceased Ajay Kumar @ Sintu.
47. It has been submitted by learned counsel for the claimant respondent that in view of sections 165 and 166 of M.V.Act a motor accident claim petition may be presented in case of death by all or any of the legal representative of the deceased. In view of the provisions contained in Section 165 and 166, it is not necessary to claim the compensation under the provisions of M.V.Act that legal representative must be dependent. No doubt, the dependency of legal representative upon deceased plays an important role in fixing the compensation to be awarded to the legal heir but does not sine qua non that only dependent could file its claim for compensation under the provisions of Motor Vehicle Act.
48. The attention has been drawn by learned counsel for the appellant that this petition is not under Section 166but under section 163-A, therefore, the provisions contained in Section 166 could not be attracted.
49. The argument is misconceived. The provisions contained in Section 163(A) of the M.V. Act also contains that the legal heir of the deceased died in motor accident is entitled to compensation on structural formula basis as indicated in second schedule of the Motor Vehicle Act. Sub-Section of section 163 (A) is reproduced herein below:-
"Section 163A. Special provisions as to payment of compensation on structured formula basis.- (1) 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.
Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), 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 or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
50. The learned counsel for the appellant in this regard relied upon the judgment delivered by the Apex Court in Smt. Manjuri Bera's case (supra), wherein the legal representative was found to be competent to present the petition under Section 166 of Motor Vehicle Act and to claim compensation. However, the court found that the claimant being married daughter was not dependent of the deceased, therefore, awarded the compensation Rs. 50,000/- which is payable under Section 140 of the Motor Vehicle Act, based on no fault liability, the minimum amount payable to the legal heir of deceased.
51. The counsel for claimants-respondent also relied upon another judgment of the Apex Court Mrs. Hafizum Begum's case (supra). In this case the tribunal held that the claimants are not dependent therefore the claim petition is not illegally maintainable. But Hon'ble Supreme Court categorically held that if the claimants are legal heirs/representative of deceased and not dependent even than there is a loss to the estate of deceased and a person who is legal representative but not dependent can yet to be a beneficiary of the estate. The relevant paragraph of aforesaid judgment of Apex Court is reproduce herein below:-
"6. Even if there was no dependency, there is a loss to the estate and a person who is a legal representative but not dependent can yet be a beneficiary of the estate. It was, therefore, submitted that a realistic and pragmatic view should be taken."
52.In the present case , there is evidence on record to show the petitioner was also dependent upon the income of the deceased. On this score no effective cross examination has been conducted on behalf of the appellant with the petitioner nor any other evidence has been adduced from the side of the appellant or the owner of the vehicle to show that petitioner was not dependent upon the deceased. Consequently, on the basis of evidence available on record and in view of the statement of the petitioner on oath, which cannot be disbelieved for want of any contrary evidence on record, the petitioner's claim for the compensation under the Motor Vehicle Act would be maintainable.
53. Therefore, in view of the above factual and legal proposition, we find no merit in the submission of the counsel for the appellant and point No.2 is accordingly decided against the appellant and held thereunder that the claimant being brother of the deceased could present the claim petition under section 163(A) of M.V.Act.
54. The next submission of the Counsel for appellant is that in view of the fact that the deceased was the employee of the owner and is himself guilty for negligence is causing the accident the Appellant could not be saddle with liability to pay the compensation under section 163-A of the M.V. Act. He further submits that, for this reason the claim under the provision of Motor Vehicle Act is not legally maintainable. The proper forum to get compensation , the claimant must proceed under the provision of Workmen's Compensation Act.
55. It is not in dispute that the vehicle involved in the accident was insured under Act (statutory) policy issued under the provisions of Section 147 of the Motor Vehicles Act. The driver of the vehicle is covered under this statutory policy and would be third party. Therefore, the legal representative/ legal heir would be entitled to present claim petition demanding compensation from the owner and insurer under Section 163-A of M.V.Act as held by Apex Court in Rita Devi Vs. New India Assurance Co. Ltd, AIR 2000 SC 1930=(2000) 5 SCC 113. The relevant para 14 and 15 at page 1933-34 are quoted as under;
"14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw.
15. Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word 'death' and the legal interpretations relied upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act the same will not be applicable while interpreting the word 'death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also."
56. So far as the maintainability of claim petition under the provision of M. V. Act is concerned, the provisions contained in Section 167 of M. V. Act are relevant, and the same are being quoted herein below:-
"Section 167; Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
57. The provisions of section 167 gives an option to a person who can claim the compensation under both the Acts, may prefer the claim before any one of the forum of his choice. However, if option is exercised once he cannot jump over another option.
58. The learned counsel for Insurance company submits that in this case the petition was initially filed under Section 166 of M.V. Act but later on got amended with intent to bring it under Section 163 (A) of the M.V. Act, which is not permissible.
59. We do not find any force in this arguments too. After insertion of amendment in pleadings the earlier pleadings stand out and no value could be attached to those pleadings which were not found in the pleadings after amendment. More over there is no legal impediment to get the petition under section 166 amended to get it under section 163(A). The only impediment in view of sub-section 163(B) is that simultaneous claims under section 166 and 163(A) could not be prosecuted as held by Hon'ble Supreme Court in (2001) 5 SCC 175, Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and in a resent judgment reported in (2012) 2 SCC 356, National Insurance Co. Ltd. Vs. Sinitha and others.
60. Another limb of argument of the appellant is that provision of Section 163 (A) has already been deleted from the statute book. Therefore, the amendment sought was not permissible on this count. The petition would continue to be under section 166 even if amendment is carried out. The learned counsel for the appellant submits that this petition should be treated under section 166 and not under section 163(A). The claimant would not be entitled to any compensation because the accident was occurred due to sole rash and negligent driving of the deceased Ajay Kumar @ Sintu himself. At the most the claimant-respondent may get a sum of Rs. 50,000/- under Section 140 of the Motor Vehicle Act which is the amount equal to amount which could be award on no fault liability under Section 140 of the Motor Vehicles Act.
61. In this case, the petition may be filed both under The Workmen's Compensation Act as well as under section 163 (A) of the Motor Vehicle Act. The petition under Section 163 (A) would be maintainable as has already been held by us. In view of provision contained in sub-section 1 of Section 163 (A), which provides that in case of death or permanent disablement due to accident arising out of the use of motor vehicle the owner of the motor vehicle or the authorized insurer shall be liable to pay the compensation as indicated in second schedule of the Act to the legal heirs or victim, as the case may be.
62. Sub section 2 of section 163-A provides that in any claim for compensation under Section 163 (A) the claimant is not required to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of vehicle concerned or of any other person.
63. Section 163 (B) gives an option to the claimant to prefer the claim either under Section 163 (A) or under Section 140 of Motor Vehicles Act but not under both the Sections.
64. In view of section 167 if the claimant opt to file the claim before Tribunal constituted under M.V. Act it would be permissible and could not said to be illegal. The only impediment mentioned in this section that If the claim under section 163(A) stand dismissed on merit or otherwise than in that event the claimant could not proceed under the provisions of The Workmen's Compensation Act or vice-versa.
65. It has further been submitted from the side of the learned counsel for the appellant that in this case the deceased was the driver of the vehicle in question. The accident was occurred due to rash and negligent driving of the deceased Ajay Kumar @ Sintu because of the fact that no other vehicle is involved in this accident. It is not in dispute that the deceased was the paid driver of respondent No.2 and as such comes within the meaning of employee of respondent No.2. It is the negligence of the owner also to hand over the vehicle to such a person who is not competent to drive the vehicle. Therefore, the petition U/S 163(A) is liable to be dismissed.
66. The Hon'ble Supreme Court in recent judgment reported in (2012) 2 SCC 356, (National Insurance Co. Ltd vs. Sinitha and others) have discussed in detail the provision contained in Section 163 (A) of the M.V. Act treated it to be already incorporated by means of Amendment Act No. 54 of 1994, and observed that provisions contained in Section 163(A) are not part of no fault scheme of M.V. Act, 1988 but is based on fault liability. It has been further clarified that though the claimant need not to plead and prove 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 or vehicles concerned or of any other person in view of sub-section 2 of section 163(A) but at the same time the owner or insurer to defeat the claim by pleading and establishing any one of the three faults namely, wrongful act, neglect or default. The relevant paragraphs 10, 11, 12, 13, 14, 15 and 16 of the aforesaid judgment (PDF formate of original judgment) are quoted as under:-
"10. We find merit in the aforesaid contention of the learned counsel for the appellant, insofar as the first aspect of this matter is concerned. There can be no dispute whatsoever, that the issues of law arising for consideration in the present controversy as against the matter adjudicated upon by this Court in Oriental Insurance Company Limited vs. Hansrajbhai V.Kodala (supra), are separate and distinct. In fact, there is hardly any grey area which may be considered as common between the issues involved. We are also satisfied that the second contention advanced at the hands of the learned counsel for the petitioner cannot be brushed aside. Sub-section (4) of Section 140 of the Act was not referred to, nor taken into consideration, while adjudicating upon the controversy arising in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). Absence of reference to sub-section (4) of Section 140 of the Act was because the same was wholly irrelevant for the purpose of the controversy settled in the aforesaid case. We also find merit in the last contention advanced at the hands of the learned counsel for the petitioner, namely, the overriding effect of Section 163A by the use of the words "Notwithstanding anything contained in this act or any other law for the time being in force or instrument having the force of law ". In this behalf, it would be pertinent to mention, that Section 163 A was introduced into the Motor Vehicles Act, 1988 by way of an amendment carried out with effect from 14.11.1994. As against the aforesaid, it is necessary to mention that Section 144 of the Act was incorporated into the Motor Vehicles Act, 1988 from the very beginning. Section 144, it may be pointed out, is a part of Chapter X of the Motor Vehicles Act, 1988, which includes Section 140. Section 144 of the Act is being extracted herein :
"144. Overriding effect. - The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this act or of any other law for the time being in force."
Even though, Section 144 of the Act mandates, that the provisions of Chapter X (which includes Section 140) have effect notwithstanding anything to the contrary contained in any other provision of the Act or in any other law for the time being in force. Section 144 of the Act would not override the mandate contained in Section 163A, for the simple reason that Section 144 provided for such effect over provisions "for the time being in force", i.e., the provisions then existing, but Section 163A was not on the statute book at the time when Section 144 was incorporated therein. Therefore the provisions contained in Chapter X, would not have overriding effect, over Section 163A of the Act. As against the aforesaid, at the time of incorporation of Section 163A of the Act, Sections 140 and 144 of the Act, were already subsisting, as such, the provisions of Section 163A which also provided by way of a non-obstante clause, that it would have by a legal fiction overriding effect over all existing provisions under the Act, as also, any other law or instrument having the force of law "for the time being in force", would have overriding effect, even over the then existing provisions in Chapter X of the Act because the same was already in existence when Section 163A was introduced into the Act. The importance of the instant aspect of the matter is, that Section 163A of the Act has overriding effect over all the provisions/sections taken into consideration by this Court while deciding the controversy in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). It is therefore clear, that none of the provisions taken into consideration, in the decision relied upon by the learned counsel for the respondents can override, the legal effect of the mandate contained in Section 163A of the Act. We are, therefore, satisfied that it wouldbe incorrect to hold, that the controversy raised in the instant case can be deemed to have been settled by this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra).We have delineated the inferences drawn by us from the observations recorded in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), in extenso hereinabove. We have also reproduced, herein above, paragraph 22 of the judgment in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), so as to determine with some sense of exactitude the conclusions drawn in the aforesaid judgment. It cannot be stated that the issue arising in the present controversy, has been dealt with or adjudicated upon in Oriental Insurance Company Limited vs. Hansrajbhai V.Kodala (supra). Additionally, the contentions advanced at the hands of the learned counsel for appellant, more particularly reliance placed by him on sub-section (4) of Section 140 has certainly not been dealt with Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). Thus, viewed, it is not possible for us to conclude that the issue arising in this case can be stated to have been settled. The assertion made by the learned counsel for the respondents, that the issue raised in the instant case, by the learned counsel of the petitioner, is no longer res integra, can therefore not be accepted.
11.Having arrived at the conclusion that the issue in hand has to be decided independently, we will now venture to determine whether a claim made under Section 163A of the Act is a claim under the "fault" liability principle, or under the "no-fault" liability principle. We are satisfied, that if a claim for compensation under a provision, is not sustainable for reason of a "fault" on account of any one or more of the following i.e., "wrongful act", "neglect" or "default", the provision in question would be governed by the "fault" liability principle. Stated differently, where the claimant in order to establish his right to claim compensation (under a particular provision) has to establish, that the same does not arise out of "wrongful act" or "neglect" or "default", the said provision will be deemed to fall under the "fault" liability principle. So also, where a claim for compensation can be defeated on account of any of the aforesaid considerations on the basis of a "fault" ground, the same would also fall under the "fault" liability principle. On the contrary, if under a provision, a claimant does not have to establish, that his claim does not arise out of "wrongful act" or "neglect" or "default"; and conversely, the claim cannot be defeated on account of any of the aforesaid considerations; then most certainly, the provision in question will fall under the "no-fault" liability principle.
12. For determination of the issue under consideration, namely, whether Section 163A of the Act is governed by the "fault" or the "no-fault" liability principle, it is first relevant for us to examine Section 140 of the Act, so as to determine whether it has any bearing on the interpretation of Section 163A of the Act. Section 140 aforesaid is being extracted hereunder :
"140. Liability to pay compensation in certain cases on the principle of no fault.-
(1)Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2)The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub- section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.
(3)In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4)A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5)Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force :
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A."
For the instant determination, only sub-sections (3) and (4) are relevant. A perusal of sub-section (3) reveals, that the burden of "pleading and establishing", whether or not "wrongful act", "neglect" or "default" was committed by the person (for or on whose behalf) compensation is claimed under Section 140, would not rest on the shoulders of the claimant. In other words the onus of proof of "wrongful act", "neglect" or "default" is not on the claimant. The matter however does not end with this. A perusal of sub- section (4) of Section 140 of the Act further reveals, that the claim of compensation under Section 140 of the Act cannot be defeated because of any of the "fault" grounds ("wrongful act", "neglect" or "default"). This additional negative bar, precluding the defence from defeating a claim for reasons of a "fault", is of extreme significance, for the consideration of the issue in hand. It is apparent, that both sides are precluded in a claim raised under Section 140 of the Act from entering into the arena of "fault" ("wrongful act" or "neglect" or "default"). There can be no doubt, therefore,that the compensation claimed under Section 140 is governed by the "no- fault" liability principle.
13. In the second limb of the present consideration, it is necessary to carry out a comparison between Sections 140 and 163A of the Act. For this, Section 163A of the Act is being extracted hereunder:
"Section 163A. Special provisions as to payment of compensation on structured formula basis - (1) Notwithstanding anything contained in this Act or in anyother law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay 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.
Explanation - For the purposes of this sub-section,"permanent disability"shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8of 1923).
(2)In any claim for compensation under sub- section (1), 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 or vehicles concerned or of any other person.
(3)The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
A perusal of Section 163(A) reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section 163A of the Act, it is not essential for a claimant seeking compensation, to "plead or establish", that the accident out of which the claim arises suffers from "wrongful act" or "neglect" or "default" of the offending vehicle. But then, there is no equivalent of sub- section (4) of Section 140 in Section 163A of the Act. Whereas, under sub-section (4) of Section 140, there is a specific bar, whereby the concerned party (owner or insurance company) is precluded from defeating a claim raised under Section 140 of the Act, by "pleading and establishing", "wrongful act", "neglect" or "default", there is no such or similar prohibiting clause in Section 163A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a "fault" ("wrongful act", "neglect" or "default"), as has been expressly incorporated in Section 140 of the Act (through sub-section (4) thereof), having not been embodied in Section 163A of the Act, has to have a bearing on the interpretation of Section 163A of the Act. In our considered view the legislature designedly included the negative clause through sub- section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163A of the Act. The legislature must have refrained from providing such a negative clause in Section 163A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140, and the absence of a similar provision in Section 163A, in our view, leaves no room for any doubt, that the only object of the Legislature in doing so was, that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163A of the Act, by pleading and establishing "wrongful act", "neglect" or "default". Thus, in our view, it is open to a concerned party (owner or insurer) to defeat a claim raised under Section 163A of the Act, by pleading and establishing anyone of the three "faults", namely, "wrongful act", "neglect" or "default". But for the above reason, we find no plausible logic in the wisdom of the legislature, for providing an additional negative bar precluding the defence from defeating a claim for compensation in Section 140 of the Act, and in avoiding to include a similar negative bar in Section 163A of the Act. The object for incorporating sub-section (2) in Section 163A of the Act is, that the burden of pleading and establishing proof of "wrongful act", "neglect" or "default" would not rest on the shoulders of the claimant. The absence of a provision similar to sub-section (4) of Section 140 of the Act from Section 163A of the Act, is for shifting the onus of proof on the grounds of "wrongful act", "neglect" or "default" onto the shoulders of the defence (owner or the insurance company). A claim which can be defeated on the basis of any of the aforesaid considerations, regulated under the "fault" liability principle. We have no hesitation therefore to conclude, that Section 163A of the Act is founded on the "fault" liability principle.
14. There is also another reason, which supports the aforesaid conclusion. Section 140 of the Act falls in Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 is titled as "Liability Without Fault in Certain Cases". The title of the chapter in which Section 140 falls, leaves no room for any doubt, that the provisions under the chapter have a reference to liability "... without fault ...", i.e., are founded under the "no-fault" liability principle. It would, however, be pertinent to mention, that Section 163A of the Act, does not find place in Chapter X of the Act. Section 163A falls in Chapter XI which has the title "Insurance of Motor Vehicles Against Third Party Risks". The Motor Vehicles Act, 1988 came into force with effect from 1.7.1989 (i.e., the date on which it was published in the Gazette of India Extraordinary Part II). Section 140 of the Act was included in the original enactment under chapter X. As against the aforesaid, Section 163A of the Act was inserted therein with effect from 14.11.1994 by way of an amendment. Had it been the intention of the legislature to provide for another provision (besides Section 140 of the Act), under the "no-fault" liability principle, it would have rationally added the same under Chapter X of the Act. Only because it was not meant to fall within the ambit of the title of Chapter X of the Act "Liability Without Fault in Certain Cases", it was purposefully and designedly not included thereunder.
15. The heading of Section 163A also needs a special mention. It reads, "Special Provisions as to Payment of Compensation on Structured Formula Basis". It is abundantly clear that Section 163A, introduced a different scheme for expeditious determination of accident claims. Expeditious determination would have reference to a provision wherein litigation was hitherto before (before the insertion of Section 163A of the Act) being long drawn. The only such situation (before the insertion of Section 163A of the Act) wherein the litigation was long drawn was under Chapter XII of the Act. Since the provisions under Chapter XII are structured under the "fault" liability principle, its alternative would also inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre-structured formula to evaluate compensation. It provided for some short-cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. All in all, one cannot lose sight of the fact, that claims made under Section 163A can result in substantial compensation. When taken together the liability may be huge. It is difficult to accept, that the legislature would fasten such a prodigious liability under the "no-fault" liability principle, without reference to the "fault" grounds. When compensation is high, it is legitimate that the insurance company is not fastened with liability when the offending vehicle suffered a "fault" ("wrongful act", "neglect", or "defect") under a valid Act only policy. Even the instant process of reasoning, leads to the inference, that Section 163A of the Act is founded under the "fault" liability principle.
16.At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "no-fault" liability principle. Additionally, we have concluded herein above, that on the conjoint reading of Sections 140 and 163A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163A of the Act, need not be based on pleadings or proof at the hands of the claimants showing absence of "wrongful act", being "neglect" or "default". But that, is not sufficient to determine that the provision falls under the "fault" liability principle. To decide whether a provision is governed by the "fault" liability principle the converse has also to be established, i.e., whether a claim raised thereunder can be defeated by the concerned party (owner or insurance company) by pleading and proving "wrongful act", "neglect" or "default". From the preceding paragraphs (commencing from paragraph 12), we have no hesitation in concluding, that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing through cogent evidence a "fault" ground ("wrongful act" or "neglect" or "default"). It is, therefore, doubtless, that Section 163A of the Act is founded under the "fault" liability principle. To this effect, we accept the contention advanced at the hands of the learned counsel for the petitioner."
66. In the light of law laid down by the Apex court the facts of this case ought to be examined.
67. the award in question has been passed in petition filed by respondent-claimant no.1 Sanjiv Kumar under section 163 (A) of the Act the deceased Ajai Kumar @ Santu died being driver of Vikram tempo in the accident in question in which no other vehicle was involved. Sudhir Kumar Malhotra is the owner of the Vikram Tempo involved in the accident, admitted in evidence on oath that the deceased was his driver and as such his employee.
68. Deceased admittedly was employee of owner of the vehicle,so, the legal heir of deceased driver of Vikram Tempo have an option to file the claim either before motor accident claims tribunal or before commissioner of workmen's compensation act as provided under section 167 of the M.V. Act.
69. The vehicle was insured under the Act policy. The driver is covered thereunder, therefore, he falls within the category of third party as held in by the Division Bench of this court in FAFO NO. 893 OF 2009 (NATIONAL INSURANCE COMPANY LTD VRS. GITA MISHRA) decided on 06.08.2012.
70. In view of Sinitha's case (supra) the petitioner in petition under Section 163 (A) need not to plead of prove negligence for getting the compensation. However, the owner and insurance company may defeat the claim of compensation on the ground of negligence of injured claimant or in case of death negligence of deceased in claim preferred by the legal heir/legal representative. But for that owner or insurance company as the case may be, must plead and prove the defence taken to defeat the claim.
71. From the perusal of the written statement of owner of vehicle Sudhir Kumar Malhotra, it appears that he has not taken the plea that deceased was himself negligent and has pleaded categorically that accident was occurred by chance and the vehicle was turned turtle. It is also important that the owner has not established by any evidence the negligence of the deceased in this case. Though Sudhir Kumar Malhotra examined himself as OPW 1 but he has not stated a single word regarding negligence of the driver. However, he admitted this fact that the deceased was his driver.
72. From the perusal of the written statement of insurance company, it reveals that Insurance Company also not taken any plea of negligence of the deceased driver. The claim was contested on the ground that driver was not having valid and effective driving licence at the time of accident and the vehicle was being driven against the terms of the insurance policy. No evidence has been adduced on the ground of negligence of the deceased driver by the insurance company too. Witness Ghanshyam Singh OPW 2, has been examined who stated on oath about the driving licence of the deceased driver and stated that the licence of the driver was valid for motorcycle and light motor vehicle and not for transport vehicle. The insurance company established this fact that driver was not having a valid driving license to drive the vehicle in question but this by itself is not sufficient to establish the negligence of the deceased driver.
73. In view of above facts and circumstances, the owner and insurance company neither pleaded nor proved that the accident was occurred due to sole negligence of the deceased driver.
74. Therefore in this case, we are of the view that the compensation awarded by the tribunal on structural formula basis in the light of second schedule of M.V.Act is not liable to be interfered . We find no justification at present to debar the claimant respondent from getting determined compensation in view of law laid down by the Apex Court in Sinitha's case (Supra).
Point No 4
75. Now next question for consideration is that; whether the provisions of Section 163 (A) had ever been deleted from the statute book?.
76. Learned counsel for the appellant relied upon two judgments of this Court delivered by the Division Bench. In one of the case ,Writ Petition No. 6027 (MB) of 2008 (Niranjan Singh Vs. The State of U.P. & Ors. decided on 04.08.2008) the Court held that amendments made in the M.V.Act 1988 by force of The Motor Vehicle (Amendment) Act 1994 (Act No, 54 0f 1994) were repealed by The Repealing and Amending Act,2001 (Act No. 30 0f 2001). The learned counsel for the appellant relied upon certain portions of the judgment which are being reproduced herein below:-
" Today, Shri A.R. Masoodi appearing for applicants in impleadment application has produced the Division Bench judgment passed in the case of Smt. Urmila Trivedi Versus State of U.P. and others reported in 2004 (22) LCD 62, wherein the aforesaid Single Judge has been held not a good law.
Sri Alok Sinha, Advocate appearing in one other petition in the meantime has drawn attention of the Court to the fact that the provision under Section 68 (3) (ca) already repealed in the year 2001 by Repealing and Amending act, 2001 Time was given to the counsel for the State, Shri Krishna Chandra and Shri Mukund Tiwari, learned Additional Chief Standing Counsel for confirming the aforesaid fact. They have also confirmed that repeal has come into effect in the year 2001 and that the said provision remained no more on statute book.
The aforesaid provision was inserted in the year 1994 by means of Act No. 54 of 1994 and was repealed by the Amending Act, 2001. That being the position, there remains hardly any point to be decided by us in the pending writ petition but for observing that since the State Government had passed the impugned orders in the purported exercise of power under the aforesaid Section 68 (3) (ca), therefore, the petition was entertained.
In view of admitted and established position as brought before the Court that the aforesaid provision did not remain on statute book by virtue of Repealing and Amending Act, 2001 w.e.f. September 03, 2001, there was neither authority nor power with the State Government to exercise its power under aforesaid repealed provision and the aforesaid orders appear to have been passed in the ignorance of the fact of repeal, therefore, the said order cannot be sustained.
We, therefore, quash the impugned notification dated 15.05.2008 contained as Annexure No.1 to the writ petition."
77. Our attention has also been drawn towards another judgment delivered by this Court in FAFO No. 518 of 2005 (UPSRTC Vs Ram Prakash & Ors) decide on 21.12.2006, wherein the Division Bench of this Court after considering some part of the saving clause of Repealing and Amending Act, 2001 observed that "The Repealing and Amending Act,2001(Act No.30 of 2001) repealed the provision of Amendment Act, 1994 (Act No 54 0f 1994) but from prospective date and not from the retrospective date. The relevant portion of the same is also reproduced herein below:-
"Learned counsel appearing on behalf of appellant in support of his contention has placed reliance on principles of law laid down in the case of U.P.S.R.T.C. Vs Smt. Madhu sharma and other reported in 2003 (4) AWC 2620 as under:-
"Section 163-A of the Motor Vehicles Act as well as Second Schedule referable to that section were deleted vide the Amending Act No. 30 of 2001, which came into force on September 3, 2001. The accident had taken place on 27.04.1996. The claim petition, however, had been filed in the year 2000 under Section 163-A. During the pendency of claim petition, the amendment became effective and Section 163-A of the Motor Vehicles Act itself was deleted. The effect was that by the date of the judgment/award the only provision under which the claim petition could be continued, was the provision under Section 166 of the Motor Vehicles Act. In absence of Section 163-A of the Act, and the Schedule II, which contains only the guidelines, the Motor Accident Claims Tribunal proceeded with the claim petition treating the same to be a claim petition under Section 166 of the Act and determined the amount of compensation applying the principles attracted to a claim filed under Section 166 of the Act and determined the amount of compensation applying the principle attracted to a claim filed under Section 166 of the Motor Vehicles Act."
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"We have carefully heard the learned counsel of parties and have perused the facts on the date when claim petition filed, Section 163-A of the Act was on the statute book, but thereafter it was repealed by an Act, Act No. 30 of 2001. When the claim petition was decided this provision of law, in which compensation was awarded, stood repealed but Section 4 which contains the savings clause of the repealing act make it clear that this repealing had made no difference. The saving clause provides that the repeal of this Section shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted or the proof of any past act or thing;
With all respect to the bench that decided the case of U.P.S.R.T.C Vs. Smt. Madhu Sharma (supra) suffice is to say that without considering the saving clause by which provisions of Section 163-A of the Act were repealed, case was decided by that bench. The savings clause of repealing Act 2001 (Act No. 30 of 2001) provided that any right title obligation or liability already accrued or incurred or any remedy or proceeding in respect thereof shall not be affected. The petition on the liability incurred had already been filed and right liability had already been incurred. "
78. The learned counsel for the claimant-respondent and owner strongly opposed the argument of appellant's counsel by saying that in both these judgments, referred herein above, the most relevent provision contained in section 4 of Repealing and Amending Act has not been considered. The Repealing and Amending Act is quoted herein below:-
"The Repealing and Amending Act,2001 (No.30 of 2001) [Received the assent of President on 3rd September,2001 and published in the Gazette of India , Extra Part II,Section 1,dated 3rd September, 2001,pp.1-15, No.37) Preamble: An Act to repeal certain enactments and to amend certain other enactments
1. Short note.---This Act may be called the Repealing and Amending Act,2001.
2. Repeal of certain enactments.---The enactments specified in the First schedule are hereby repealed to the extent mentioned in the forth column thereto.
3. Amendment of certain enactments.---The enactments specified in the Second Schedule are hereby amended to the extent and in the manner mentioned in forth column thereof.
4. Savings.---The repeal by this Act or any enactment shall not affect any other enactment in which the repealed enactment has been applied,incorporated or referred to;
And this Act shall not affect the validity,invalidity,effect or consequence of any thing done or suffered ,or any right,title, obligation or liability already acquired ,accrued or incurred ,or any remedy or proceeding in respect thereof , or any release or discharge of or from any debt, penalty, obligation, liability,claim, or demand ,or any indemnity already granted ,or the proof of any past act or thing;
Not shall this Act affect any principle or rule of law, or established jurisdiction, from or course of pleading, practice or procedure or existing usage , custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed;
Nor shall the repealed by this Act of any enactment revive or restored any jurisdiction, office,custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or things not now existing or in force The First Schedule (See Section 2) Repeals Year No.
Short title Extent of repeal 1 2 3 4 1985 1 The Foreign Contribution(Regulation)Amendment,Act,1985 The whole
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Motor Vehicle(Amendment) Act ,1994 The whole
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The Oilfield(regulation and Development) Amendment Act,1998 The who
79. We have considered the submission of the rival parties in this regard .The provision of Motor Vehicle Act of 1988 were amended by Act No.54 of 1994 which come into effect from 14th November, 1994.This Act contained 64 section and a schedule. By this Amending Act different sections of M.V.Act 1988 right from section 2 to 212 were amended. The Second Schedule was also inserted. It is also important to mention here that by amendments sought in the Motor Vehicle Act 1988 vide Act No. 54 of 1994 were already inserted and incorporated in the statute book and relevant provision of Motor Vehicle Act 1988 were accordingly amended by inserting necessary amendment in different sections of M.V.Act 1988 .
80. By the Act of 1994 certain provisions were added and some provisions were omitted or deleted as such the entire provisions which were amended by virtue of Act No.54 of 1994 had already incorporated in the then existing Motor Vehicles Act, 1988.
81. Section 4 of Amending and Repealing Act 2001 specifically provides that "the repeal by this Act of any enactment shall not effect any other enactment in which the repealed enactment has been applied, incorporated or referred to."
82. The Division Bench in FAFO No. 518 of 2005 (UPSRTC Vs Ram Prakash & Ors) decide on 21.12.2006 no doubt consider the saving clause but not that part which we are referring hereinabove. The court in UPSRTC's case (supra) considered the remaining part of the saving clause start with word 'and'. The Court while dealing with saving clause started with word 'and' came to the conclusion that all the orders made by the tribunal in pursuance of provision contained in Section 163 (A) would not be affected by repeal of The Motor Vehicle (Amendment) Act, 1994 (Act No. 54 of 1994).
83. The Division Bench of this Court in Writ Petition No. 6027 (MB) of 2008 (Niranjan Singh Vs. The State of U.P. & Ors. decided on 04.08.2008) [Niranjan Singh's case] (supra) has not taken into consideration the provisions of savings clause contained in Section 4 of Repealing and Amending Act, 2001 at all and passed the order on the basis of concession made at bar including the counsel representing the State of U.P.
84. It is well settled law of land that while interpreting the provisions of statute court cannot act on admission of parties but should be interpreted the same as per legislative intent with which the statute has been enacted. In National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,(2007) 3 SCC 700 it has been held that if a statutory provision is open to more than one interpretation, Court has to choose that interpretation which represents true intention of Legislature. It is also well known principal of law that there is no estopple against statute. Thus, if on the basis of concession made by counsel any order is passed in ignorance of statutory provisions that would not be of any legal force and and will deemed to have been passed in ignorance of the same. Moreover, here in this case the interpretation of Central legislation was under consideration before the court so concession made by State Counsel representing State Government of U.P. has no bearing in this matter.
85. In view of the provisions contained in Section 4 of Repealing and Amending Act of 2001 (Act No.30), it is clear that the repeal by this Act shall not affect any other enactment (in this case Motor Vehicle Act, 1988) in which the repeal enactment [here in this case The Motor vehicle (Amendment) Act,1994] has been applied, incorporated or referred to. It is not in dispute that the Motor Vehicle (Amendment) Act (Act No. 54 of 1994) with effect from 14th November, 1994 vide Notification No.S.O.728(E), dated 6-10-1994, published in the Gazette of India, Pt11. Section 3(ii), dated 6-10-1994, No.506 has come into force. From the aforesaid notification the amendments sought by Act No.54 of 1994 were already incorporated in the Principal Act ( The Motor Vehicle Act 1988). As such the repeal of Motor Vehicle (Amendment) Act, 1994 from the statute book will not amount to repeal of the incorporated portion in Principal Act (M.V.Act 1988). After incorporation and insertion of amendments in M.V.Act 1988 by section 1 to 64 of Act No.54 of 1994 this Act become redundant.
86. We can make it simple by giving an example. In pleadings for adding or deleting certain existing pleadings an application under Order 6 Rule 17 CPC for amendment is required. If that application is allowed by the Court the amendment sought by the application shall be incorporated in the pleadings sought to be amended. After amendment of the pleadings in pursuance of amendment application the application for amendment become redundant and appears to be a useless paper in the record of the case. Even if that application is weeded out by the order of the Court it does not mean that the pleading already amended and incorporated in original pleadings in pursuance of the amendment application will stand automatically deleted.
87. From the perusal of the Repealing and Amending Act, 2001 the makers of law were intending to clear the shelves from those enactment which have lost their utility and become redundant after incorporation of the amended provision in the Principal act in which amendment were sought in different enactments starting from year 1985 to 1998.
88. We have also noticed an important happening that the provisions amended vide Act No. 54 of 1994 in the Motor Vehicle Act, 1988 in section 66 and 67 were further amended in subsequent Motor Vehicles (Amendment) Act,2001 (Act No. 39 of 2001), which came into effect from 27th September, 2001.
89. By means of Section 20 of Motor Vehicle (Amendment) Act 1994,(Act No. 54 of 1994), in section 66 of the principal Act in sub section (3), for clause (l) the following clause was substituted, namely:-
"(l) to any motor vehicle which is operated by electric battery,compressed natural gas or solar energy"
and by section 21 amendment in sub section (1), after clause (I) of section 67 of principal Act (M.V.Act 1988) a proviso was inserted, namely:-
"Provided that the fares and freights in respect of such stage carriages, contact carriages and goods carriages operated by battery, compressed natural gas or solar energy shall be fixed by the owner or operator"
90. Both these amendments in section 66 and 67 inserted by Act No.54 of 1994 on 14.11.94 were omitted by Act No. 39 of 2001 w.e.f. 27.09.2001 in the following manner,namely:-
2. Amendment of Section 66.--- In section 66 of Motor Vehicles Act,1988(59 of 1988)( hereinafter referred to as the principal Act), in sub-, clause(3), clause (l) shall be omitted. 3. Amendment of Section 67.--- In section 67 of the principal Act, in sub-section (l),in clause (I), the proviso shall be omitted.
91. This also indicates and leave no room to doubt that the provisions which were amended by Act No. 54 of 1994 were already become part of the statute and per force of Section 4 of Repealing and Amending Act the incorporated part were never deleted or repealed by enacting Act No.30 of 2001. If legislature intending to delete all the amended provision incorporated and inserted by Act No.54 of 1994, then another Amendment Act of 2001(Act. 39 0f 2001) was not at all required. It makes it crystal clear that provisions incorporate vide Act No. 54 0f 1994 including Section 163-A is still part of Motor Vehicle Act, 1988.
92. Thus, the judgments delivered by the Division Benches of this Court in Writ Petition No. 6027 (MB) of 2008 (Niranjan Singh Vs. The State of U.P. & Ors. decided on 04.08.2008) [Niranjan Singh's case] (supra) and FAFO No. 518 of 2005 (UPSRTC Vs Ram Prakash & Ors) decide on 21.12.2006 [ UPSRTC's case] seem to be per in curiam.
What would be the effect if a judgment is per in curiam?.
93. This question has been dealt with in State Vs. Ratan Lal Arora (2004) 4 SCC 590, the Hon'ble Supreme Court held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per in curiam.
94. In N. Bhargavan Pillai Vs. State of Kerala, AIR 2004 SC 2317, the Hon'ble Supreme Court held that in view of the specific statutory bar, the view, if any, expressed without analysing the statutory provision cannot, in our view, be treated as a binding precedent, and at the most is to be considered as having been rendered per in curiam.
95. A similar view has been reiterated in Mayuram Subramanian Srinivasan Vs. CBI, AIR 2006 SC 2449, wherein the Apex Court has observed as under:-
"Incuria" literally means "carelessness". In practice per in curiam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The''quotable in law", as held in Young Vs. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, is avoided and ignored if it is rendered, ''in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short "the Constitution")which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. Vs. Synthetics and Chemicals Ltd., (1991) 4 SCC 139. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial consigns. The position was highlighted in Nirmal Jeet Kaur Vs. State of M.P., (2004) 7 SCC 558."
96. On the basis of the aforesaid discussion made , we are of the view that while delivering the judgment by the Division Benches of this Court in Writ Petition No. 6027 (MB) of 2008 (Niranjan Singh Vs. The State of U.P. & Ors. decided on 04.08.2008) [Niranjan Singh's case] (supra) and FAFO No. 518 of 2005 (UPSRTC Vs Ram Prakash & Ors) decide on 21.12.2006 [ UPSRTC's case] (supra) have not noticed the provisions contained in Section 4 of Amending and Repealing Act, 2001 as a whole and as such both these judgments being per in curiam have no binding fore and therefore, are not binding precedents.
97. Point No.4 is accordingly decided.
98. On the basis of the findings arrived at by us on issue No.1 we find that this appeal deserves to be partly allowed to the extent of liability of Insurance company. However, there is no ground for interference in the findings recorded by the tribunal in regard to amount of compensation and its entitlement of the petitioner to get in terms of award of tribunal.
99. The appeal is partly allowed.
100. The amount of compensation with interest determined by the tribunal will be payable to the petitioner by Appellant but the Appellant Insurance Company will be entitled to recover the same after making the payment under award from owner of the Vehicle Sri Sudhir Kumar Malhotra, the Respondent No.2 through execution of this order before tribunal, which decided this Motor Accident Claim, like an award in the light of Section 174 of M.V. Act 1988.
101. The appellant-Insurance company is directed to deposit the entire compensation amount within one month from the date of this order before the Tribunal after adjusting the amount already in deposit made by the appellant-Insurance Company. The statutory amount deposited in this court or any other amount deposited in this court be remitted forthwith to the tribunal but not later than one month from today. The tribunal will disburse the amount of compensation to the claimants in terms of the award expeditiously, say within two months.
102. The Registrar of this court shall take follow up action.
103. There shall be no order as to costs (Hon'ble Vishnu Chandra Gupta, J.) (Hon'ble Devi Prasad Singh, J.) Order Date :-21st September, 2012 Ajay