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2022 Supreme(Bom) 1183
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH
Vinay Joshi, J.
New India Assurance Company Ltd. - Appellant
Versus
Kashinath S/o. Radhakisan Wagh & Ors. - Respondents
First Appeal No. 2545 of 2021, Civil Application No.3468 of 2015
Decided On : 21-02-2022
S.G.Chapalgaonkar, Advocate, S.S.Dev, Advocate, A.T.Kanawade, Advocate
The main legal point established in the judgment is the interpretation and application of section 163-a of the Motor Vehicles Act in determining compensation for motor accident claims.
Headnote:
Motor Accident Claim - Compensation - Section 163-a of the Motor Vehicles Act - [INJURY CLAIM, COMPENSATION, SECTION 163-A OF THE MOTOR VEHICLES ACT] - The court discussed the provisions of section 163-a of the Motor Vehicles Act and its applicability to the case. It highlighted the interpretation of the annual income cap of Rs.40,000 and the use of multiplier method for calculating compensation. The court also emphasized the relevance of loss of earning capacity and the impact of continued employment on the compensation amount. The judgment influenced by the legal provisions resulted in the modification of the compensation amount to Rs.2,09,000.
Fact of the Case:
The injured claimant sustained bodily injuries in a motor accident and approached the Tribunal for compensation under section 163-a of the Motor Vehicles Act. The insurance company challenged the judgment on the grounds of non-maintainability of the claim and the absence of loss of earning capacity.
Finding of the Court:
The court found that the defense of non-maintainability based on annual income was not raised by the insurance company before the Tribunal and therefore could not be entertained on appeal. It also concluded that the injured's continued employment did not negate the loss of earning capacity, and the use of the multiplier method for compensation was not applicable in this case.
Issues: The issues included the maintainability of the claim based on annual income, the impact of continued employment on loss of earning capacity, and the applicability of the multiplier method for compensation calculation.
Ratio Decidendi: The court held that the defense not raised before the Tribunal could not be entertained on appeal, and the continued employment did not eliminate the loss of earning capacity. It also determined that the multiplier method for compensation was not applicable in this case.
Final Decision: The appeal was partly allowed, and the compensation amount was reduced to Rs.2,09,000. The claimant was entitled to proportionate withdrawal of the awarded amount, and the remaining amount was to be refunded to the appellant-insurance company.
JUDGMENT
Vinay Joshi, J. - This is an appeal of the insurance company challenging the judgment and award dated 26.03.2014 passed by the Motor accident Claims Tribunal, Kopargaon, in MaCP no.4 of 2006. The Tribunal has partially allowed the injury claim, which is impugned in this appeal.
2. The facts of the case in brief are that, the respondent (injured) was driving his Maruti van at relevant time. While he came near the place of occurrence, the offending vehicle, namely, tempo New Chassis Temporary Regi. No.MH-12-0788 came in high speed and gave dash to the Maruti van. as a result and impact of said accident, the claimant sustained bodily injuries of grave nature. On account of said accident, the injured claimant has approached to the Tribunal by resorting the special provision for grant of compensation on structured formula basis in terms of section 163-a of the Motor Vehicles act.
3. The injured led oral as well as documentary evidence before the Tribunal. The involvement of offending vehicle new chassis in concerned accident was proved. Since it was a claim under section 163-a of the MV act, there was no question about deciding the aspect of negligence. The Tribunal held that the injured sustained permanent disability and assessed total compensation of Rs.5,67,480/-.
4. In this appeal the insurer has challenged the impugned judgment and award on two fold grounds. Firstly, it is argued that the income of the injured was above Rs.40,000/- per annum. Therefore, the claim was not maintainable. Secondly, it is argued that despite accidental injuries, the injured has continued his service and therefore there was no loss of earning capacity. With these prime contentions the impugned judgment is called in question.
5. The appellant's learned Counsel in support of his contention about non-maintainability of petition, relied on the decision of the Supreme Court in case of Deepal Girisbhai Soni and Ors. Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 and decision of this Court in case of M/s. New India assurance Co. Ltd. Vs. Smt. ashabai w/o. Kalyan Kothi & Ors., 2008 (2) TN MaC 253 (Bom.). In above cases, it is clarified that if a person invokes the provisions of section 163-a of the MV act, the annual income of Rs.40,000/- is treated as a cap.
6. On the other hand, the respondent's learned Counsel has submitted that the decision in the case of Smt. ashabai (supra) would not apply, since it was a death claim, though filed under section 163-a of the MV act. He would submit that the observations made by the Supreme Court in Deepal Soni's case (Supra) would not apply to the facts of this case. Moreover, it is contended that since the disability was 45%, the annual income to the extent of 45% is to be reduced on which the annual income would come below Rs.40,000/-.
7. Undisputedly, the injured in his claim petition as well as evidence affidavit has asserted that he was earning Rs.6000/- per month. The grant of compensation under structured formula basis is a social security scheme, available to the distinct class having annual income up to Rs.40,000/-. The second schedule of the MV act has been introduced in the year 1994. The Hon'ble Supreme Court on several occasion has directed the Central Government to revise the second schedule. Recently, the Supreme Court in case of Kurvan ansari & Ors. Vs. Shyam Kishore Murmu and Ors., 2022 aCJ 166 has reiterated that in-spite of repeated directions, the second schedule which was prepared long back has not been amended.
8. On the canvass of said position, it requires to be noted that the appellant insurance company has not raised said defence in its written statement Exh.14. I have carefully examined the written statement. However, unable to find slightest reference about the defence of non-maintainability on account of a cap about annual income. Naturally, since such defence was not taken, th
