By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – insurance company has challenged the judgment and order dated 25th September 2009 passed by the learned Motor Accident Claims Tribunal at Vadodara in MAC Petition No.873 of 2007 whereby the Tribunal has partly allowed the claim petition filed by the claimants. 2 The short facts of the present appeal are that on the date of the incident i.e. on 9th May 2007 the deceased Jitendra was riding motor cycle bearing No.GJ-6-AM 2637 for going from Vadodara to Rajpardi and when he reached Kaliyapura Patiya he lost control over his bike and therefore fell down from the motorcycle due to which he sustained fatal injuries. He was removed to Bharuch Civil Hospital and thereafter he was shifted to SSG Hospital, Vadodara where, during the course of treatment, he died. The claimant, mother of the deceased, therefore, filed claim petition claiming the compensation of Rs.4,36,167.
3 The Tribunal considering the income of the deceased at Rs.2,400 per month arrived at Rs.28,800 per annum and as per Second Schedule applied the multiplier of 17 and reached to Rs.4,89,600 as the datum figure. As the deceased was bachelor, 50% therefrom was deducted towards his personal expenses and thereby awarded Rs.2,44,800 towards future economic economic loss. The Tribunal has also awarded Rs.2,500 under the head of loss to estate and Rs.2,000 for funeral expenses. Thus, in all the Tribunal has awarded Rs.2,49,300 to the claimants along with the interest at the rate of 9% per annum. The insurance company filed the present appeal challenging the same.
4 Heard learned counsel for the appellant and perused the record.
5. Ms Anal Shah, learned counsel for the appellant has submitted that deceased himself was riding the motorcycle and therefore the Tribunal has committed an error in considering the claim of the claimants under Section 163A of the Motor Vehicles Act and therefore the same required to be allowed. In support of his submission, he relied upon the decision of the Ningamma And Another v. United India Insurance Company Limited, (2009) 13 SCC 710.
6. In the case of Ningamma (supra) the deceased therein the deceased was traveling on Hero Honda Motor Cycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motor cycle was proceeding on Ilkal- Kustagl, National Highway, a bullock cart proceeding ahead of the said motor cycle carrying iron-sheet suddenly stopped and consequently deceased-Ramappa who was proceeding on the said motor cycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Govt. Hospital, Ilkal, he died. The aforesaid motor cycle in which the deceased was traveling at the time of accident was insured with the Insurance Company, namely, the United India Insurance Co. Ltd. and the said motor cycle was owned by one Paranagouda. Wife of the deceased and Appellant No.2 – minor son of the deceased filed a claim petition under Section 163-A of Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal No. VI, Bijapur, Karnataka (in short ‘the Tribunal’) being M.V.C. No. 896/2000 praying for compensation of Rs. 8,10,000/- along with future interest etc. on the ground that at the time of accident the deceased was a healthy person, aged about 32 years and engaged in agriculture, earning Rs. 5,000/- per month and was the sole earning member in their family. The Tribunal held that in absence of definite and cogent proof of income, the income of the deceased was to be considered as Rs. 60/- per day as per the provisions of the Minimum Wages Act. Accordingly, the monthly income of the deceased was ascertained as Rs. 1,800/- and yearly income as Rs. 21,600/- from which 1/3 was to be deducted leaving thereby Rs. 14,400/- as the net income of the deceased. Since the age of the deceased was found to be in between 30 to 35 years, the relevant multiplier to be applied was ‘17’. Accordingly, the Tribunal under its award dated 09.02.2005 partly allowed the claim petition filed by the appellants holding that the said appellants are entitled to receive a total compensation amount of Rs. 2,59,800/- along with interest at the rate of 8% p.a. from the respondent – Insurance Company. Aggrieved by the said decision, the Insurance Company preferred an appeal being Miscellaneous First Appeal No. 4152/2005 before the High Court of Karnataka on the ground that the accident occurred due to the fault of the deceased and claim petition before the Tribunal was not maintainable as Section 163-A of the Act is not applicable unless there was another vehicle involved in the accident. The other ground of challenge was that the Tribunal erred in allowing the claim petition when the total income of the deceased was stated to be more than Rs. 40, 000/- per annum. The High Court by its judgment and order dated 08.08.2007 allowed the appeal holding that the claim petition before the Tribunal was not maintainable as there was no tort- feasor involved. It was also held that the claim Section 163-A of the Act was barred when the income of the claimant is stated to be above Rs. 40,000/- per annum. Consequently, the High Court set aside the judgment and award passed by the Tribunal and directed the appellants herein to refund the amount of compensation to the Insurance Company. The appellants preferred two Special Leave Petitions, one bearing No. 25497/2008 against the judgment and order dated 08.08.2007 passed in Miscellaneous First Appeal No. 4152/2005. The Supreme Court while disposing of the said appeals observed as under:-
“18. However, in the facts of the present case, it was forcefully argued by the counsel appearing for the respondent that the claimants are not the ‘third party’, and therefore, they are not entitled to claim any benefit under Section 163-A of the MVA. In support of the said contention, the counsel relied on the decision of this Court in the case of Oriental Insurance Co. Ltd. v. Rajni Devi, (2008) 5 SCC 736; and New India Assurance Co. Ltd. v. Sadanand Mukhi and Ors., (2009) 2 SCC 417.
“19. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon’ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof.
“20. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.
“21. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.”
In the present case also there is no tortfeasor and deceased being son of the original owner he cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. The liability under section 163-A of the MVA is on the owner of the vehicle and therefore a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In view of the above discussion and keeping in mind the principle laid down in the case of Ningamma & Anr. (supra), I have no hesitation to hold that the judgment and award of the Tribunal is contrary to law and is liable to set aside and the matter is required to be adjudicated afresh.
7. In the result, the appeal is partly allowed and the following order is passed:
(i) The impugned judgment and award is quashed and set aside.
(ii) The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
(iii) This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be influenced by the order of this Court.
(iv) The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit and the claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(v) It is, however, made clear that interest accruing on the said Fixed Deposit shall be accumulated and will be adjusted at the time of the final award.
(vi) The amount awarded & already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
(vii) Since the matter is pending since long, the Tribunal is directed to dispose of the case as expeditiously as possible and in any case not later than two years from the date of receipt of the writ of this Court.
(viii) It is observed that this Court has not entered into the merits of the matter and the Tribunal shall consider the same afresh, without being influenced by the fact that this Court has quashed its earlier judgment and award.
(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.
(K.S. JHAVERI, J.) *mohd