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2015 Supreme(Sikk) 96
IN THE HIGH COURT OF SIKKIM
SUNIL KUMAR SINHA, J.
The Branch Manager, National Insurance Co. Ltd. – Appellant
Vs.
Smt. Sujita Newar, W/o Late Bshinu Pradhan alias Vibhisan Pradhan alias Bhivisan Newar alias Vivisun Pradhan – Respondent
MAC App. No. 21 of 2014
Decided on : 07-04-2015
Advocate Appeared:
For the Appellant :Mr. Thupden G. Bhutia, Advocate
For the Respondent:Mr. Ajay Rathi and Ms. Pema W. Bhutia, Mr. Ashok Pradhan, Advocate
The main legal point established is the limitation on the tribunal's discretion in awarding compensation under Section 163A of the Motor Vehicles Act, 1988, and the fixed amounts payable in accordance with the Second Schedule.
Headnote:
Motor Vehicles Act - Compensation - Section 163A - Second Schedule - Summary of Acts and Sections: Section 163A of the Motor Vehicles Act, 1988 - The court discussed the provisions of Section 163A and the Second Schedule, emphasizing the fixed amounts payable under Section 163A and the non-obstante clause, and highlighted the limitations on the tribunal's discretion in awarding compensation under this provision.
Fact of the Case:
The claimants, wife and minor son of the deceased, filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 for compensation. The Tribunal awarded a sum of Rs. 7,06,300 as compensation to the claimants, including various heads of damages and interest at 10% per annum.
Finding of the Court:
The court found that the Tribunal had incorrectly awarded amounts for Funeral Expenses, Loss of Consortium, and Non-pecuniary damages, deviating from the provisions of Section 163A and the Second Schedule. The court re-computed the compensation to Rs. 4,88,300 and allowed interest at 10% per annum from the date of filing the claim petition.
Issues: The issues involved the correct application of Section 163A and the Second Schedule in awarding compensation for motor accident claims, and the Tribunal's discretion in determining various heads of damages.
Ratio Decidendi: The court held that under Section 163A, claimants must opt for either Section 163A or Section 166, and if Section 163A is chosen, the compensation is fixed in accordance with the Second Schedule. The court emphasized the non-obstante clause and the limitations on the tribunal's discretion in awarding compensation under Section 163A.
Final Decision: The court allowed the appeal, re-computed the compensation to Rs. 4,88,300, and awarded interest at 10% per annum from the date of filing the claim petition.
SUNIL KUMAR SINHA, J.
1. The insurer is aggrieved with the award dated 28.07.2014 passed in MACT Case No. 08 of 2014 by the Motor Accidents Claims Tribunal, East Sikkim at Gangtok. By the impugned award, a sum of Rs. 7,06,300 has been awarded as compensation to Respondents 1 and 2 by the Tribunal with interest @10% per annum from the date of filing of the claim petition till realization.
2. Respondents 1 and 2/Claimants are wife and minor son of deceased Vibhisan Pradhan, who died in the motor accident on 17.12.2013. He was aged about 25 years. He himself was driving the vehicle at the time of the accident. He was earning Rs. 3,325/- per month. On his death, Respondents 1 and 2 filed claim petition under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’). The Tribunal held that the liability to pay compensation was that of insurance company (Appellant herein). The Tribunal, holding the income of the deceased as Rs. 3,325/- per month, applied multiplier of 18 and after deducting 1/3rd, awarded Rs. 4,78,800/- towards Loss of Earning. The Tribunal further awarded Rs. 25,000/- as Funeral Expenses; Rs. 2,500/- as Loss of Estate; Rs. 1,00,000/- as Loss of Consortium; and over and above, Rs. 1,00,000/- as Loss of Non-pecuniary damages to the Respondents/Claimants. The Tribunal, thus, awarded a total sum of Rs. 7,06,300/- as compensation to Respondents 1 and 2/Claimants on account of death of deceased Vibhisan Pradhan in the said accident. The Tribunal also awarded interest @ 10% per annum from the date of filing of the claim petition, i.e. 21.04.2014, till realization.
3. Mr. Thupden G. Bhutia, learned Counsel appearing on behalf of the Appellant, has not disputed the liability of the Appellant to pay compensation. He has also not disputed the amount towards Loss of Earning, i.e. Rs. 4,78,800/-. He has vehemently argued that as the claim petition was filed under Section 163A of the Act, the amount towards Funeral Expenses, Loss of Estate and Loss of Consortium should have been strictly on the basis of structured formula as is contained in the Second Schedule prepared under Section 163A. He also argued that after directing payment on account of Funeral Expenses, Loss of Estate and Loss of Consortium, a further amount of Rs. 1,00,000/- awarded by the Tribunal towards Loss of Non-pecuniary damages was wholly unjustified. He relied on the decisions of National Insurance Company Ltd. v. Gurumallamma: 2009 (9) SCALE 764 and National Insurance Co. Ltd. v. Chacko: 2012 (1) TAC 464 (Kerala).
4. On the other hand, Mr. Ajay Rathi, learned Counsel appearing on behalf of the Claimants, has opposed these arguments and supported the award passed by the Claims Tribunal.
5. I have heard learned Counsel for the parties.
6. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd.: (2004) 5 SCC 385, it was held that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder 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. Section 163A, which has an overriding effect, provides for special provisions as to payment of compensation on structured-formula basis. In Section 163A, the expression “notwithstanding anything contained in this Act or in any other law for the time being in force” has been used, which goes to show that Parliament intended to insert a non obstante clause of a wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force.
7. In Gurumallamma (supra), it was held that “Section 163A was inserted by Act No. 54 of 1994 as a special measure to ameliorate the diffic
