The burden of proof shifts to claimants when amending a claim petition from Section 163A to Section 166 of the Motor Vehicles Act, and the principles of 'no fault liability' and 'dependency' are crucial in determining compensation.

JUDGMENT :

Sharad Kumar Sharma, J.

This is a claimants Appeal from Order, which has been preferred invoking Section 173 of the Motor Vehicles Act, wherein the claimants, have put a partial challenge to the impugned award dated 21st December 2011, which was rendered by the learned Additional District Judge/FTC-7/Motor Accident Claims Tribunal, Dehradun, in MACT Case No.107 of 2007, Shri Mangat Singh Terathwal and another Vs. Shri Amit Terathwal and others.

2. The claimants to the present Appeal from Order, had prayed for, that the impugned award, which had been rendered by the learned Motor Accident Claims Tribunal wherein, only a partial award has been rendered in their favour to the tune of Rs. 2,22,000/- along with 9% interest, payable on it, which has been directed to be made payable to them from the date of presentation of the application, may be enhanced to the amount, which was claimed by the claimants, in their claim petition to the tune of Rs. 10.00 lakh.

3. Brief facts of the case are, that the claimant have contended in their claim petition, which had been filed before the learned Court below on 4th May 2007 initially, by invoking the provisions contained under Section 163A of the Motor Vehicles Act, 1988, but, later on voluntarily, by the amendment sought for by the claimants, the claim petition was got amended and instead of claim petition being preferred under Section 163A of the Act, the same has been amended to be treated as to be the claim petition which has been preferred under Section 166 of the Motor Vehicles Act. As per the provisions of the Motor Vehicles Act, the two distinct provisions i.e. Section 163A, which is extracted hereunder, it includes the determination of compensation based upon the principles for the payment of compensation, on the basis of structured formula, as provided in the Second Schedule. Section 163A of the Motor Vehicles Act, reads as under:-

“[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.]

Whereas under the Motor Vehicles Act. Section 166 of the Motor Vehicles Act, 1988 is extracted herein below deals with the determination of compensation based on establishment of negligence:-

166. Application for compensation.—

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made—

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the