Leave granted.
On 18.03.2004, an incident took place, by which the
son of the claimant, who allegedly was a pillion rider, was
killed in a road accident. The Motor Accident Claims
Tribunal, Dehradun (hereinafter referred to as ‘MACT’) after
examining the evidence, came to the conclusion that the
accident was due to the rash and negligent driving of
respondent No. 2, who was the owner of the motor vehicle and
who was driving the aforesaid motor vehicle. The victim was
aged 28 years. Coming to the conclusion that a salary of
Rs.3,000/- per month would be adequate, with a deduction of
one-third, and taking the multiplier as 8 dependant upon the
claimant’s age, the MACT finally held the insurance company
liable to pay a total of Rs. 1.99 lakhs + 6 per cent
interest thereon.
In the appeal filed before the High Court of
Uttarakhand, by the impugned order dated 28.12.2016, the
High Court held that since the insurance company denied that
the deceased was only a pillion rider and stated that he
was, in fact, driving the vehicle himself; also since the
claimant was not present at the spot; and since Shri
Virender Bijalwan, respondent No. 2, who ought to have been
called as he was the only surviving eye witness, not being
called as a witness, therefore, proved fatal to the claim,
as a result of which, the petition under Section 163A of the
Motor Vehicles Act, 1988, would have to be dismissed.
Further, the High Court also held that nothing was brought
on record to show that the deceased was having a valid
driving license. In this view of the matter, the appeal was
allowed and the judgment passed by the MACT was set aside.
Shri N. K. Sahoo, learned counsel appearing on behalf
of the petitioner, has argued that the petition being filed
under Section 163A, it is clear that the liability is ‘no
fault’, as a result of which, it is not necessary to prove
the negligence or any rash and negligent driving on the part
of the driver of the vehicle. He further argued that the
multiplier of 8 is ex-facie incorrect since it was taken on
the basis of the claimant’s age and not the victim’s age,
stating that since the victim was only 28 years old, the
multiplier should have been 17. He also argued that the
High Court was wrong in placing the burden on the claimant,
when MACT has held that, based on the examination and cross
examination of the claimant, the facts could be elicited.
Further, the validity of the driving licence under Issues
Nos. 2 and 3, was given up by the insurance company but
taken into account by the High Court.
Shri Anshum Jain, learned counsel appearing on behalf
of the insurance company, reiterated the High Court’s
judgment and further argued that no fault liability under
Section 163A is limited to Rs.1 lakh. At the relevant time,
therefore, even if we were to uphold the MACT’s judgment,
the maximum that can be awarded on the facts of this case is
Rs.1 lakh.
Having heard learned counsel for the parties, we may
only extract the order of the MACT as follows:
“13. P.W. 1 Smt. Chandra Kanta Tiwari was cross-
examined at length on behalf of O.P. No. 2 i.e.
Insurance Company and none appeared to cross-examine
her on behalf of the O.P. No. 1. Whatever cross-
examination has been made on behalf of O.P. No. 2, it
has again been proved that the deceased was the
pillion rider and O.P. No. 1 was driving the ill-
fated vehicle at the time of accident in a rash and
negligent manner due to which he received grievous
injuries which resulted into his death on the spot.
14. It will be relevant to mention here that no
controverting evidence on this issue or on issue no.
2 has been adduced by any of the opposite parties
though they have made the pleadings otherwise in
their written statement hence it has not been proved
on record by any of the opposite parties that at the
time of the accident, the deceased was driving the
vehicle, it is also relevant to mention here that
according to written statement of O.P. No. 1, he
himself sustained injuries in this accident and he
has also admitted the date, time and place of the
accident. Therefore, it was legally incumbent upon
him to prove his case before the Tribunal as he was
the best person to make clear how this accident
occurred but as no evidence has been adduced by the
O.P. No. 1 in this regard, therefore, there is no
reason to disbelieve the evidence adduced on behalf
of the claimants by way of P.W.1.
15. Admittedly this petition has been moved u/s. 163A
of the M.V. Act, therefore, legally the claimants are
not supposed to prove the rash and negligent act of
driving by O.P. No. 1 and in such a petition legally,
the claimants are not required even to plead or
establish that the death, in respect of which the
claim has been made, was due to any wrongly act or
negligence or default of the owner driver of the
vehicle or any other person and in such a petition,
the owner of the vehicle or the authorised insurer is
legally liable to make the payment of compensation.”
So far as issues 3 and 4 are concerned, they read as
follows:
“3. Whether at the time of accident the deceased was
not having a valid driving license?
4. Whether at the time of accident the OP No. 1 was
not having a valid driving license?”
The Tribunal then records in paragraph 17 that both
the opposite parties did not press these issues during
arguments.
Finally, given that the deceased was aged 28 years and
that income was not proved, income was taken to be
Rs.36,000/- per annum minus one-third, which made it
Rs.24,000/- per annum. The Multiplier was taken to be 8,
keeping in view the old age of the claimant and accordingly,
a sum of Rs.1,92,000/- was arrived at. In addition thereto,
Rs.2000/- was given as funeral expenses, Rs.5000/- as loss
of consortium, making it a total of Rs.1,99,000/- together
with simple interest at the rate of 6 per cent per annum on
this amount from the date of filing of the claim petition up
to the date of actual payment.
The High Court, by the impugned judgment, allowed the
appeal of the insurance company stating that the claimant,
not being an eye witness, could not possibly give evidence
as to the accident that took place, as a result of which,
the Section 163A petition would have to be dismissed. Also,
nothing was brought on record to show that the deceased was
having a valid driving license. This would also, therefore,
take the case outside the insurance policy, as a result of
which, the appeal would deserve to be allowed on this ground
also.
Section 163A reads as follows:
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. A perusal of this provision would show that Shri Sahoo is correct in stating that the claimant need not plead or establish that the death in respect of which the claim was made, was due to any negligence or default of the owner of the vehicle or of any other person. (emphasis supplied) In this view of the matter, it is not relevant that the person insured must be the driver of the vehicle but may well have been riding with somebody else driving a vehicle which resulted in the death of the person driving the vehicle. The High Court, therefore, is clearly wrong in stating that it was necessary under Section 163A to prove that somebody else was driving the vehicle rashly and negligently, as a result of which, the death of the victim would take place. Further, it is also clear, as has been pointed out hereinabove, that so far as the driving licence aspect of the case is concerned, it was squarely given up by the insurance company before the MACT, but then utilised by the High Court to disentitle the claimant to relief. On this ground also, the High Court is incorrect. Coming to the argument based on the maximum liability being Rs.1 lakh, this argument was never taken before in all the courts below, as a result of which, we do not allow the insurance company to take up the point for the first time before us at this stage. We would have restored the MACT’s judgment as it stands but for the fact that there is a glaring mistake in the multiplier, as has been pointed out by Shri Sahoo. The amount that will be paid will now be the amount mentioned in the MACT’s judgment with the correction that the multiplier instead of being 8 is now 17. The interest figure also remains the same. As a result, the appeal stands allowed. The insurance company is to pay the amount due to the claimant as per our judgment within a period of three months from today. [ ROHINTON FALI NARIMAN ] [ NAVIN SINHA ] [ B.R. GAVAI ] New Delhi; June 08, 2020.