HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.4651 & 4673 OF 2008, M.A.C.M.A. (SR) No.33218 OF 2009, M.A.C.M.A. Nos.295 & 1458 OF 2010, 53, 84 & 254 OF 2011 AND 3490 OF 2012
Date: 24-01-2014
Between:
M.A.CM.A. (SR) No.33218 OF 2009
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Attuluri Siva Kumari @ Kumari and four others. - - - Respondents.
M.A.C.M.A. No.4651 OF 2008
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Tanueru Subba Rao and four others. - - - Respondents.
M.A.C.M.A. No.4673 OF 2008
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Venna Padmavathi and four others. - - - Respondents.
M.A.C.M.A. No. 295 OF 2010
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Parimi Satyanarayana and another. - - - Respondents.
M.A.C.M.A. No. 1458 OF 2010
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Petti Govindu and another. - - - Respondents.
M.A.C.M.A. No. 53 OF 2011
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Patti Sowbhagyam and another. - - - Respondents.
M.A.C.M.A. No. 84 OF 2011
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Parimi Rangamma and another. - - - Respondents.
M.A.C.M.A. No. 254 OF 2011
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Sure Subbamma and five others. - - - Respondents.
M.A.C.M.A. No. 3490 OF 2012
M/s. National Insurance Company Limited, Rep. by its Divisional Manager, Dharavari street, Bhagyanagar, Ongole. - - - Appellant.
And Parucdhuri Nagalakshmamma @ Nagalakshmi and six others. - - - Respondents.
This Court made the following :
HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.4651 & 4673 OF 2008, M.A.C.M.A. (SR) No.33218 OF 2009, M.A.C.M.A. Nos.295 & 1458 OF 2010, 53, 84 & 254 OF 2011 AND 3490 OF 2012
COMMON JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
All these Appeals are preferred aggrieved by the impugned orders passed in M.V.O.P. Nos.234, 236, 218, 312, 220, 222, 418, 316 and 309 of 2005 on the file of Motor Accidents Claims Tribunal-cum-I Additional District Judge, Ongole, whereunder, the Tribunal awarded compensation in favour of the petitioners-claimants attaching liability to the appellant-insurance company, who was second respondent before the Tribunal, respectively.
2. For the sake of convenience and to avoid confusion, the parties hereinafter will be referred to as petitioners-claimants and respondents.
3. The petitioners-legal heirs of deceased persons filed claim petitions in M.V.O.P. Nos.234, 236, 218 and 316 of 2005 and the petitioner’s-claimant’s filed M.V.O.P. Nos.312, 220, 222, 418 of 2005 and 309 of 2005 before the Tribunal, under Section 163-A and 166 of the Motor Vehicles Act, 1988 (For short, ‘the Act’), claiming different amounts of compensation respectively for death of Attuluri Prasada Rao, Tanniru Dhanalakshmi, Venna Krishna Murthy and Sure Yogaiah and injured claimants-petitioners in a road accident against the respondents 1 and 2 being owner and insurer of the mini van bearing No.AP 27 V 3663 alleging that on 25.03.2005, 18 persons engaged the mini van belonging to first respondent to go to Kalkibhagavan Ashramam situated near Chennai, during the intervening night of 24/25.03.2005 at 23.30 hours, the alleged mini van while proceeding to Kalkibhagavan Ashramam from Markapur, along with 18 persons and at about 05.00 a.m. on 25.03.2005, when the mini van reached near Gammallapalem village on National Highway No.5, the driver of the mini van drove the same in rash and negligent manner and at high speed, lost control over the van, dashed the lorry bearing No.AP 21 V 1982, stationed on the road margin, from its rear side, as a result of which, Tanniru Dhanalakshmi, Venna Krishna Murthy, Sure Yogaiah, received injuries and died on the spot and one A. Prasada Rao died while undergoing treatment. The other 12 persons sustained multiple grievous injuries in the accident and the injured persons including A. Prasada Rao were immediately shifted to the hospital at Nellore for treatment and A. Prasada Rao died while undergoing treatment. The accident was reported to the Kodavalur Police Station and Police registered the statement of J. Srinivasulu as a case in Crime No.28 of 2005 for the offences punishable under Sections 337, 338 and 304-A of I.P.C. After completion of investigation, the Kodavalur Police filed charge sheet against the driver of the mini van bearing No.AP 27 V 3663. Thus, the accident occurred only due to rash and negligent act of the driver of the mini van.
4. The details of deceased and injured persons, nature of injuries, their earnings, compensation claimed and awarded are shown hereunder in a tabular form for better appreciation and to avoid of repetition of facts.
5. On account of the injuries sustained by petitioner’s claimants’ in M.V.O.P. Nos.312, 220, 222, 418 and 309 of 2005, the petitioners-claimants became permanently disabled and on account of the grievous injuries sustained by them in the road accident, they lost their future earning capacity. Hence, claimed compensation as mentioned in the table due to the nature of injuries suffered by them. The legal heirs of deceased A. Prasada Rao, Tanniru Dhanalakshmi, Venna Krishna Murthy and Sure Yogaiah and claimed compensation for the untimely death of A. Prasada Rao, Tanniru Dhanalakshmi, Venna Krishna Murthy and Sure Yogaiah in the road accident under various heads inclusive of compensation under the head of loss of future dependency and loss of earnings etc.,
6. First respondent is the owner and insured and second respondent is the insurer of mini van bearing No.AP 27 V 3663. As on the date of accident, the mini van was insured with the second respondent and the policy was subsisting, respondents 1 and 2 being owner-cum-insured and insurer of the mini van are jointly and severally liable to pay compensations to the petitioners-claimants.
7. First respondent, owner of the mini van, filed counter in all the claim petitions denying the material allegations made in all the petitions, inter-alia contending that the accident not occurred due to rash and negligent act of the driver of the mini van and called upon the petitioners to put the same to strict proof and denied the age and occupation of the injured-claimants and deceased persons. In case the Tribunal found that the accident occurred due to rash and negligent act of the driver of mini van and since the mini van was insured with the second respondent, second respondent is under an obligation to indemnify the risk and prayed to dismiss all the petitions against the first respondent.
8. Second respondent-insurance company filed counter in all the claim petition denying the material allegations of the petitions inter-alia contending that the accident not occurred due to rash and negligent driving of the driver of mini van and called upon the injured petitioners-claimants and legal representatives of deceased persons to put the age, income, avocation and health condition of the injured petitioners as well as deceased A. Prasada Rao, Tanniru Dhanalakshmi, Venna Krishna Murthy and Sure Yogaiah and their income, disability, if any, suffered by the injured petitioners- claimants.
9. It is further contended that the accident occurred due to hit against the stationed lorry on the road side. The owner and insurer of lorry bearing No.AP 21 V 1982 are also proper and necessary parties to the claim petitions as it amounts to contributory negligence of drivers of both the vehicles i.e., lorry and mini van.
10. Finally, it is contended that by the time of accident, 19 persons including the driver of mini van were traveling in the mini van but the capacity of the mini van is only 12 persons and policy covers the risk of only 12 passengers, thereby, the first respondent-insured violated the terms and conditions of the policy permitting to travel more than 12 passengers, consequently, the second respondent- insurance Company is not liable to indemnify the risk of 18 persons including the injured-claimants and deceased A. Prasada Rao, Tanniru Dhanalakshmi, Venna Krishna Murthy and Sure Yogaiah.
11. The driver of mini van bearing No.AP 27 V 3663 was not holding valid and effective driving license as on the date of accident and thereby it amounts to violation of terms and conditions of the policy and consequently second respondent-insurance company is not liable to pay compensation and prayed for dismissal of all the petitions against the second respondent-insurance company.
12. Basing on the above pleadings, the Tribunal framed the following issues in M.V.O.P. Nos.234, 236, 218 and 316 of 2005:
1. Whether the accident occurred on 25.03.2005 due to rash and negligent driving of the driver of the mini van bearing No.AP 27 V 3663?
2. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
3. To what relief?
13. Similarly, the Tribunal framed the following issues in M.V.O.P. Nos.312, 220, 222, 418 and 309 of 2005:
1. Whether the petitioner sustained injuries in Motor Vehicle Accident made by mini van bearing No.AP 27 V 3663 due to rash and negligent driving of its driver?
2. Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3. To what relief?
14. In M.V.O.P. Nos.312, 220, 222, 418 and 309 of 2005, the injured petitioner-claimant was examined as PW.1; similarly, first respondent-owner and insured of mini van bearing No.AP 27 V 3663 was examined as RW.2 and second respondent-insurer of the mini van examined its employee as RW.1 except in M.V.O.P. No.30 of 2005, where only employee of insurer of the mini van was examined as RW.1. The details of witnesses examined and documents marked on either side in all the M.V.O.Ps is shown hereunder in the tabular form:
15. Upon hearing arguments of both the counsel, considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred only due to rash and negligent act of the driver of mini van bearing No.AP 27 V 3663 while disbelieving the contributory negligence and in M.V.O.P. Nos.236, 218 and 316 of 2005 directed both respondents to honour the compensation amount and in M.V.O.P. Nos.312, 220, 222, 418 and 309 of 2005, except in M.V.O.P. No.309 of 2005 directed the second respondent-insurance company to satisfy the claims in 12 claim petitions in the descending order from the highest of the awards making the first respondent-owner of the mini van to pay the balance amount, if any, in case the claim of petitioners is not satisfied, even after distributing the amount deposited by the second respondent-insurance company proportionately among all the petitioners-claimants relying upon the judgment of the Apex Court in National Insurance Company
[1]
vs. Anjana Shyam and others .
16. In each of the claim petition, the compensation claimed and awarded by the Tribunal with different directions for withdrawal and deposit, is shown in the following table:
17. Aggrieved by the impugned awards passed by the Tribunal, appellant, who was second respondent-insurance company preferred all these Appeals raising common grounds. The following are the specific contentions raised in all the Appeals:
a) The Tribunal did not consider the negligence contributed by the driver of lorry bearing No.AP 21 V 1982, who parked the lorry without taking any precautions like parking lights on the National High Way during night and that both the drivers of mini van and lorry have contributed negligence equally, therefore, respondents 1 and 2 and the owner-cum-insured and insurer of lorry are equally liable to pay compensation, if any, but the Tribunal did not consider this aspect in proper perspective;
b) According to the permit, only 12 persons are permitted to travel in the mini van but in utter violation of permit, at the time of accident, 18 persons excluding the driver traveled as passengers, thereby, it amounts to violation of terms and conditions of the policy but this was not considered by the Tribunal;
c) Filing of claim petitions both under Sections 163-A and 166 of the Motor Vehicles Act is not maintainable but the Tribunal did not answer this issue properly;
d) The Tribunal did not specify the 12 awards to be satisfied by the appellant-second respondent while totally exonerating the insurance company from payment of other claims, but failure to specify the total claims to be satisfied is an error.
And finally prayed to allow the Appeals setting aside the impugned awards or limit its liability to the extent of 50% of awarded amount in 12 claims.
18. During the course of arguments, learned standing counsel appearing for the appellant- insurance company mainly contended that the lorry was parked on the National High Way without taking necessary precautions like glowing of parking lights, cordoning of lorry etc., which amounts to negligence on the part of the driver of lorry and thereby contributed 50% negligence for causing the accident. At the same time, claim petitions filed under Sections 163-A and 166 of M.V. Act are not maintainable but this was not properly appreciated by the Tribunal, did not fix the liability properly and finally prayed to allow these Appeals setting-aside the impugned Awards passed by the Tribunal.
19. Whereas, learned counsel for the petitioners argued totally in support of the impugned Awards passed by the Tribunal and prayed to dismiss the Appeals confirming the impugned Awards.
20. Considering rival contentions, perusing the material available on record including the impugned Awards passed by the Tribunal, the following points arose for consideration in these Appeals:
1. Whether the accident occurred due to contributory or composite negligence of driver of mini van bearing No.AP 27 V 3663 and lorry bearing No.AP 21 V 1982? If so, petitioners-claimants are entitled to proceed against any one of the owner-cum-insured and insurer of the vehicles?
2. Whether the claim petitions filed both under Sections 163-A and 166 are maintainable? If not, whether the claim petitions are liable to be dismissed on that ground?
3. Whether the first respondent, owner-cum-insured of mini van, violated the terms and conditions of the permit and insurance policy permitting to travel 18 passengers as against the permitted limit of 12 passengers? If so, respondents 1 and 2 before the Tribunal are liable to pay compensation in all Claim Petitions?
21. The quantum of compensation awarded by the Tribunal is not in dispute. Therefore, we restrain ourselves to decide the contributory negligence and maintainability of petitions filed both under Sections 163-A and 166 of Motor Vehicles Act, as pointed out by the learned counsel for the appellant-insurance company.
22. POINT No.1: Undoubtedly the driver of mini van bearing No.AP 27 V 3663 allowed to board in 18 persons to go to “Kalkibhagavan Ashramam” near Chennai from Markapur and while proceeding in the mini van, reached Gammallapalem village on the National High Way then the driver of the mini van drove the same in a rash and negligent manner at high speed and lost control over it, hit the stationed lorry from its rear side, which resulted in death of 3 persons on the spot and one person while undergoing treatment in the hospital and caused injuries to other 14 passengers. The said fact is disclosed by J. Srinivasulu in his statement recorded by Kodavalur Police, which is the earliest in point of time, while he was undergoing treatment in the hospital. Even otherwise, the allegations made in the claim petitions squarely disclose that the cause of accident was due to hit of mini van against the stationed lorry from its rear side on the National High Way near Gammallapalem village. Thus, the undisputed fact is that the accident occurred due to hit of stationed lorry bearing No.AP 21 V 1982 on the National High Way by mini van from its rear side at about 05.30 a.m. on 25.03.2005.
23. Learned counsel for the appellant-insurance company mainly contended that the lorry was parked without any parking lights or taking any precautions on the National High Way, thereby contributed negligence for the accident. Even assuming for a moment that the accident occurred due to negligent parking of the lorry on the National High Way without taking any precautions, the drivers of both the vehicles i.e., lorry and mini van are responsible for causing the accident but not the injured petitioners-claimants or the deceased persons. Therefore, the injured petitioners-claimants and the 4 deceased persons did contribute nothing for the accident, if the passengers are responsible for causing accident, to any extent the claim can be denied on the ground of contributory negligence to the extent of negligence contributed by the passengers traveling in the mini van, but in the facts of the case on hand the accident occurred due to hit of stationed lorry by the mini van. Even assuming for a moment, that the driver negligently parked the lorry on the National High Way, the cause of accident is composite negligence but not the contributory negligence.
24. Contributory negligence means negligence contributed by the injured or deceased for causing accident but in the present case on hand, the injured petitioner’s-claimants including the deceased persons did contribute nothing for causing accident and they are no way responsible for the accident and, admittedly, they were in deep sleep by the time of accident, as per the material available on record. In such a case, the question of contributory negligence does not arise and consequently the accident can be said to have occurred only due to composite negligence of drivers of both the vehicles i.e., lorry bearing No.AP 21 V 1982 and mini van bearing No.AP 27 V 3663. The same position was laid down by the Apex Court in Andhra Pradesh State Road Transport Corporation v.
[2]
K. Hemalatha held as follows:
“In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles.
‘Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong- doer separately.”
25. In another decision of the Apex Court in T.O. Anthony vs. Karvarnan and others held as follows at Para 6:
[3]
, it was “6 . 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.”
26. It is not the case where the injured petitioner’s-claimants or deceased persons contributed negligence for causing accident but the drivers of both the vehicles contributed negligence. Therefore, no amount of negligence could be attributable to the injured petitioner’s-claimants or deceased persons. In the present case on hand, there is only composite negligence; negligence of both the drivers of vehicles but not contributory negligence of injured petitioner’s-claimants or deceased persons. In normal circumstances, the contributory negligence arises only where the deceased or injured himself is responsible partly for causing accident. The Courts, however, are regularly deciding cases where the respondents negligence alone caused the death or injury, negligence was solely on the part of the injured or the deceased person in the accident or the negligence of both the parties contributing negligence for the death or injury. It is obvious that if the finding is that the accident occurred due to the negligence of respondents alone in causing death or injury, the claimants would succeed even if the deceased or the claimant was in some respects negligent. Similarly, there is no difficulty in holding that if the claimants will fail if the deceased’s or the injured was solely responsible for the death or injury, as the case may be, even if the respondent was in some respects negligent. The third case is where the negligence of both the parties caused death or injury, the common law rule was that the claimants are to fail even when the respondents were more at fault. In other words, if the deceased’s or the injured’s negligence contributed in some degree to the death or injury, the respondents succeed by pleading contributory negligence irrespective of the fact that death or injury was allegedly caused by the respondents’ negligence.
[4]
27. In Sayed Ibrahim vs. Union of India and another this Court held that where an accident occurred on account of collision between two vehicles, the drivers of both the vehicles can be held guilty of composite negligence and that it is not necessary that the extent of the liability must be apportioned.
[5]
28. Similarly, in Sombathina Ramu vs. T. Srinivasulu and another this Court held as under at Para 7:
“When a person is injured without his playing directly or indirectly any role or without any negligence on his part, but yet as a result of negligence on the part of another person or due to the negligence of two or more persons, then in such a case, it cannot be construed as a case of contributory negligence. The theory of contributory negligence therefore, requires and recognizes the role played by the injured either directly or even remotely in the occasion of the accident which caused the injury. Therefore, without there being any part or role played in the accident in question, a third party cannot be described as a contributor or causative factor for the injury. In all such cases, the injury is said to have occasioned wholly due to the composite negligence of others. In a case of composite negligence, the person who has been wronged has a choice of initiating proceedings against all or any one of more than one or the wrong doers. Every wrong doer becomes liable for the whole of the damage that has been caused or meted out.
The concept of composite negligence has been explained in the following manner : "Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled of course, within the limits set out by the general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he cannot recover in the whole more than his whole damage”."
29. Hence, the principles laid down by the Apex Court and this Court (cited 2nd to 4th supra), are directly applicable to the present facts of the cases and on the strength of law laid down by the Apex Court, it can safely be concluded that the accident occurred only due to composite negligence of drivers of lorry and mini van, where the deceased and injured persons were traveling as passengers.
30. The Tribunal though discussed the entire oral and documentary evidence on record, did not distinguish contributory negligence and composite negligence, but attributed 100% negligence to the driver of mini van bearing No.AP 27 V 3663 and the conclusion arrived by the Tribunal is not in consistence with the law laid down by the Apex Court in view of the decisions cited supra and at best, the Tribunal would have concluded that the accident occurred due to composite negligence of drivers of both the vehicles. Even on re-appraisal of entire evidence with reference to law laid down by the Apex Court, including the allegations made in the F.I.R., marked as Ex.A-1, it is clear that the accident occurred only due to composite negligence as stated above, and in such a case, the claimants can proceed against any one of the joint tort feasors and thereby petitioner’s-claimants proceeding against the respondents in these cases is only because of the option exercised by them. Therefore, it is difficult to attribute negligence and apportion the compensation accepting the contention of learned standing counsel for the appellant-insurance company and accordingly, we find no grounds to attribute any negligence to the driver of lorry bearing No.AP 21 V 1982 to decline the compensation proportionate to the negligence attributed by the driver of the alleged lorry, because he is only a joint tort feasor.
31. The view expressed by the Apex Court in the decisions cited supra are consistent on this aspect. Therefore, the contention that the appellant-second respondent that the accident occurred due to contributory negligence is un-sustainable and without any substance; thereby, the plea of contributory negligence raised by the appellant-second respondent is turned down. Accordingly the point is held against the appellant-insurance company and in favour of the petitioners-claimants.
32. POINT No.2: One of the contentions raised by the learned standing counsel for the appellant- insurance company in the grounds of appeal is that the claim petitions filed both under Sections 163-A and 166 of the Motor Vehicles Act are not maintainable since Section 163-A deals with payment of compensation for no fault liability and Section 166 deals with payment of compensation for fault liability. No doubt, there is distinction in the claims filed under Sections 163-A and 166 of M.V. Act. Merely because two provisions are quoted wrongly, wrong quoting of provision is not a ground to dismiss the claim petitions, if the petitioners-claimants are otherwise entitled, the total contents of the claim petitions have to be taken into consideration to decide whether the claims filed under Sections 163-A and 166 of M.V. Act. Even otherwise the claims filed both under Sections 163-A and 166 are for fault liability, but in case of claims filed under Sections 163-A, initial burden is always upon the respondents to prove that the accident was not occurred due to rash and negligent act of the driver of mini van and thereupon the burden will shift to the claimants but in case of claims filed under Section 166, the initial onus is always on the claimants and if they proved that the accident
occurred due to rash and negligent act of the driver of mini van, they are entitled to claim compensation. Therefore, both the claims filed under Sections 163-A and 166 are for fault liability subject to limit of income under Section 163-A it can be invoked by any person whose annual income is less than Rs.40,000/- and it is not a claim for no fault liability as contended by the learned standing counsel for the appellant-insurance company, in view of the principle laid down by the Apex Court in National Insurance Company Limited Vs. Sinitha and others[6] it was held as follows:
“16. The aforesaid conclusion gets support from the language used in Sections 140, 141, 161 and 163-A. Sections 140 to 143 provide for liability of the owner of the vehicle in case of death or permanent disablement of any person resulting from an accident arising out of use of a motor vehicle or motor vehicles, to pay compensation without any pleading or establishing that death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles. By way of earliest relief, the victim is entitled to get the amount of compensation of Rs 50,000 in case of death and Rs 25,000 in case of permanent disablement. It is further provided that such claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement has occurred. Sub- section (5) of Section 140 upon which much reliance is placed by learned counsel for the Insurance Companies as well as the claimants requires consideration and interpretation, which inter alia provides that owner of the vehicle is also liable to pay compensation under any other law for the time being in force. The word “also” indicates that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. The proviso to sub-section (5) further clarifies that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of compensation payable under subsection (2) or under Section 163-A. This is further crystallised in Section 141 which provides that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of fault liability and specifically excludes the right to claim compensation under the Scheme referred to in Section 163-A. Section 163-B also provides that where a person is entitled to claim compensation under Section 140 and Section 163-A, he can file the claim under either of the said sections, but not under both. Similarly, Section 141(1) also crystallises that right to claim compensation under Section 140 is in addition to the right to claim compensation in respect thereof under any other provision of the Act or any other law for the time being in force.
Sub-section (2) further provides that if the claimant has filed an application for compensation under Section 140 and also in pursuance of any right on the principle of fault liability, the claim for compensation under Section 140 is to be disposed of in the first place and as provided in sub- section (3) the amount received under sub-section (2) of Section 140 is to be adjusted while paying the compensation on the principle of fault liability. On the basis of fault liability if additional amount is required to be paid then the claimant is entitled to get the same but there is no provision for refund of the amount received under Section 140(2), even if the Claims Tribunal arrives at the conclusion that the claimant was not entitled to get any compensation on the principle of fault liability. Further, Section 144 gives overriding effect to the provisions made under Chapter X by providing that the provisions of the Chapter shall have effect notwithstanding anything contained in any provision of the Act or of any other law for the time being in force. From the aforesaid sections, one aspect is abundantly clear that right to claim compensation on the basis of no-fault liability under Section 140 is in addition to the right to claim compensation on the principle of fault liability or right to get compensation under any other law. Such amount is required to be reduced from the amount payable under the fault liability or compensation which may be received under any other law. If nothing is payable under the Act then the claimant is not required to refund the amount received by him. As against this, there is specific departure in the Scheme envisaged for paying compensation under Section 163-A. Section 163-A nowhere provides that this payment of compensation on no-fault liability on the basis of structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability and unless otherwise provide for the same cause, compensation cannot be paid again.”
33. The remedy of payment of compensation both under Sections 163-A and Section 166 are independent of each other as statutorily provided and claimants cannot pursue both the remedies simultaneously. It would be worthwhile to refer the judgment of the Hon’ble Apex Court reported in Deepal Girishbhai Soni and Others vs. United India Insurance Co. Ltd. Baroda paras 57, 67 and 68, it was held as follows:
[7]
, wherein in “57. We, Therefore, are of the opinion that remedy for payment of compensation both under Section 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies there under simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both.
67. We, Therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163A, the annual income of Rs. 40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.
68. However, in this case, we may notice that the parties have proceeded to file two applications - one, under Section 163A and another under Section 166 of the Act. Both have been entertained. Both the Tribunal as also the High Court have proceeded on the basis that the amount of compensation under Section 163A is by way of an interim award and the same would not preclude the claimants to proceed with his claim made in terms of Section 166 of the Act. It is submitted at the Bar that the appellants have withdrawn 50% of the amount and rest of the amount has been invested. The appellants have lost both of their parents in the accident. Only one of the appellants at the relevant time was a major. It appears that 70% of the amount permitted to be withdrawn has been deposited in the Fixed Deposit. We agree with the submission of Mr.Banerjee that the claim of the appellants made under Section 163A be treated to be one under Section 140 of the Act and upon adjusting the amounts provided for there under, the appellants may refund the rest thereof to the insurer.”
34. The Delhi High Court in Smt. Rukmani Devi vs. The New India Assurance Company th
[8]
Limited and another basing on the judgment of the Hon’ble Apex Court cited 7 supra, held in Para 12 as follows:
”12. Based on the above discussion and after considering the ratio of the aforesaid judgment of the Apex Court, it becomes manifest that the bar is on taking simultaneous remedies under Section 163-A and Section 166 of the Motor Vehicles Act, but there cannot be any bar that claimant cannot choose at any stage of the case to convert their petition from Section 166 to Section 163-A of the Motor Vehicles Act. Denying such right of conversion during the pendency of case would defeat the very social objective of granting speedy and expeditious compensation to the victims of the accident cases. Once the claimants have taken recourse to Section 163-A of the Motor Vehicles Act the only hindrance, which will come in the way of the claimants would be that the compensation in their favor would be payable under the said structured formula of the Motor Vehicles Act and once the claimants seek an amendment to convert their petition from Section 166 to 163A of the Motor Vehicles Act, then, at the same time the claimant cannot be allowed to take the advantage of the income which the deceased/victim might have been earning over and above the amount of Rs.40,000/- per annum as restricted in the Second Schedule of the Motor Vehicles Act.”
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35. Similarly, the Kerala High Court in Sherifa Beevi vs Komu relying on the judgment of the Hon’ble Apex Court referred 7th supra discussing about the scope of Sections 140, 163-A and 166 of Motor Vehicles Act, held as follows:
“To have a purposive and meaningful interpretation of the provisions, the bar under Section 163B that a claimant "shall file the claim either under Section 140 or under Section 163A" should be understood to mean that a claim for compensation that is pursued and maintained should be either under Section 140 or 163A in one situation and in the other situation under Section 163A or 166. In that view of the matter, a claimant in an application under Section 163A of the Motor Vehicles Act is certainly entitled to amend the claim to be one under Sections 140 and 166. The bar is only that there cannot be a simultaneous claim under Sections 140 and 163A or Section 163A and 166. In the instant case the application for amendment is to amend a petition filed under Section 163A to one under Section 140 read with Section 166. Under law, as already stated above, the claimants are certainly entitled to such an amendment since the same is permissible under Section 395 of the Act read with Rule 17 of Order VI Code of Civil Procedure, and read with Sections 140, 163A, 163B and 166 of the Motor Vehicles Act.”
36. The same view was reiterated in the Full Bench judgment of the Rajasthan High Court in United India Insurance Company Limited vs Satya Narain Sharma follows:
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, wherein it was held as “An application filed both under Sections 163-A and 166 of M.V Act claiming compensation simultaneously, is not maintainable. The claimant has to opt/elect to proceed under either of the two sections, but not under both.”
37. In another decision of the Apex Court in Deepal Girishbhai Soni vs. United India Insurance [11] Company Limited it was held as follows:
“The petition filed under Section 163-A of Motor Vehicles Act cannot be proceeded under Section 166 of Act and decide the claim.”
38. Even otherwise, Sections 163-A and 166 of Motor Vehicles Act are benevolent provisions for the benefit of the poor injured persons or the legal heirs of deceased persons in the road accidents and to achieve the real object of the statue, the Tribunals and Courts must construe the provisions liberally and lean towards the claimants. Therefore, wrong quoting or misquoting of wrong provision of law itself is not a ground to dismiss the claim petitions. Time and again Hon’ble Apex Court and other High Courts including the Division Bench of this Court held that when the claims are filed both under Sections 163-A and 166 of Motor Vehicles Act, same is not a ground to dismiss the petitions. In fact, we find no specific plea regarding maintainability of petitions both under Sections 163-A and 166 of Motor Vehicles Act, in the counter filed by second respondent, for the first time, such plea was raised in the grounds of Appeal. Hence, second respondent-insurance company cannot raise such plea at this stage.
39. By applying the principles laid down in the decision cited supra, the Tribunal took the claims under Sections 166 of the Motor Vehicles Act and we find no error in the impugned Awards of the Tribunal. Hence, it is not a ground to reject the claim of the injured petitioners-claimants; consequently the contention of learned counsel for the appellant-insurance company holds no substance and the same is turned down. Accordingly the point is held against the appellant-insurance company and in favour of the petitioners-claimants.
40. POINT No.3: One of the grounds urged in the grounds of Appeal i.e., at ground Nos.5 and 6 is that the first respondent owner-cum-insured violated the terms and conditions of the policy and as per the permit, 12 persons were permitted to travel excluding the driver but 18 persons were traveling in the mini van at the time of the accident and that too the policy covers the risk of only 12 passengers, thereby the appellant-insurance company cannot be made liable to pay compensation. Undisputedly the permitted capacity of the mini van is only 12 persons but 18 persons were traveling in the mini van at the time of accident and it is a clear violation of the terms and conditions of the permit but on that ground the insurance company cannot avoid its liability to pay compensation. In view of the principle
laid down by the Apex Court in Anjana Shyam (1st supra) it was held as follows at Paras 15 and 16:
“15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1) (b) (ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.”
41. The learned counsel for the petitioners-claimants mainly contended that though the policy does not cover the risk of all passengers travelling in the mini van, at the time of accident, still the insurance company is liable to pay compensation and drawn the attention of this court to terms and conditions of Ex.B-1 insurance policy and to a decision of this Court in United India Insurance Company Limited
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Vs Gorla Shankar and others wherein this Court held that when the vehicle was driven contrary to the conditions in the policy, still the insurance company is liable to pay compensation, but the insurance company can recover the said amount from the owner of the offending vehicle. Similar view was expressed by this Court in Sirram Subrahmanyam and others Vs S. Mohammed Riyaz and
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another , wherein it was held as follows:-
“carrying more number of passengers than permitted at the time of accident, breach of condition not so fundamental in nature to put an end to contract, vehicle cannot be said to have been used for entirely different purpose and so, insurer is held liable.”
42. The Tribunal by applying the principles laid down in the decisions cited supra, made the appellant-insurance company liable to pay compensation for 12 claimants in the descending order i.e., from the highest to lowest. However, there is a change of law in the recent past. The Apex Court in similar circumstances in United India Insurance Company LImited Vs K. M. Poonam and
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others held that the insurance company is liable to pay compensation, which is as follows:
“In the facts of the above decision, a public transport vehicle carrying excess number of passengers than permitted, but the policy covered the risk of liability to a particular number of persons i.e., six persons including the driver. Excess number of passengers carried in the vehicle would have to be treated as third parties, but since no premium paid in policy for them, insurer would not be liable to make payment of compensation amount so far as they are concerned, since there can be no pick and choose method to identify five passengers excluding driver, in respect of whom compensation would be payable by insurance company, insurance company directed to pay compensation awarded to all claimants and recover amount paid by it over and above the compensation payable in respect of persons covered by policy from owner of vehicle.”
43. If the principles laid down in the decisions cited supra including the decision in Anjana Shyam (1st supra) is applied to the present facts of the case, the appellant-insurance company is liable to pay compensation to all the claimants and claim amount paid to the claimants in excess of the liability under policy shall be recovered from the first respondent-owner of the mini van bearing No.AP 27 V 3663 according to the procedure prescribed. Hence, the coverage of only 12 passengers by the policy under Ex.B-1 will not exonerate the appellant-insurance company from payment of compensation but still liable to satisfy all the claims and, at best, the appellant-insurance company can recover the last 6 claims starting from lowest claim to highest claim, if any paid, to the injured persons from the owner of the mini van i.e., first respondent. Accordingly, this point is held in favour of the petitioners-claimants and against the appellant-insurance company.
Accordingly, with the above direction, all these Appeals, preferred by the Appellant-insurance Company, are dismissed confirming the impugned Awards passed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Ongole, in M.V.O.P. Nos.234, 236, 218, 312, 220, 222, 418, 316 and 309 of 2005.
In consequence, the miscellaneous petitions, if any, pending in these Appeals shall stand dismissed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J Date: 24-01-2014.
Dsh HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.4651 & 4673 OF 2008, M.A.C.M.A. (SR) No.33218 OF 2009, M.A.C.M.A. Nos.295 & 1458 OF 2010, 53, 84 & 254 OF 2011 AND 3490 OF 2012
(Common judgment of the Division Bench delivered by Hon’ble Sri Justice M. Satyanarayana Murthy)
Date. 24-01-2014
DSH
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2007 ACJ 2129 2008 (5) SCJ 29 200 ACJ 1165 2005 ACJ 588 2009 ACJ 187 AIR 2012 SC 797 Manu/SC/0246/2004 Manu/DE/0769/2008 Manu/KE/0474/2006
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2008 ACJ 909 2004 ACJ 934 (SC) 2003 (2) ALD 775 2003 (5) ALD 69 2011 (5) ALD 60 (SC)