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CHAPTER: III
Claims Tribunal under Motor Vehicles Act, 1988
99
CHAPTER: III
Claims Tribunal under Motor Vehicles Act, 1988
A. Introduction
A new forum, i.e. Motor Accidents Claims Tribunal, which substitutes Civil
Court, has been created by the Motor Vehicles Act, for cheaper and speedier
remedy to the victims of accident of motor vehicles. Prior to the Motor Vehicles
Act, a suit for damages had to be filed with civil court, on payment of ad
valorem court fee. But, under the provisions of this Act, an application claiming
compensation can be made to the Claims Tribunal without payment of ad
valorem fee1. New provisions in Motor Vehicles Act, do not create any new
liability, and the liability is still based on law of tort and enactments like the
Fatal Accidents Act. The position on this point was critically explained in
Oriental Fire & General Insurance Co. v. Kamal Kamini2:
“The object of this group of sections 110 to 110F of the (1939) Act is to supply a
cheap and expeditious mode of enforcing liability arising out of claim for
compensation in respect of accident involving the death, or bodily injury to,
persons arising out of the use of motor vehicles, or damage to any property of a
third party so arising, or both as referred to in Section 110. Prior to the
constitution of the Tribunal, compensation could be claimed by institution of
suits for damages only through the medium of the Civil Court on payment of ad
valorem court fee. This group of sections furnishes a self-contained Code that
1 Swaranlata v. N.T.I. Pvt. Ltd., A I R 1974 (Gauhati), 31 ; see also R.K.Bangia, “ Law of Torts
including Compensation under the Motor Vehicles Act” (1997) p.469 2 Oriental Fire & General Insurance Co. v. Kamal Kamini, A. I . R. 1973 (Orissa) 33
100
the claims can be lodged on the basis of an application without payment of ad
valorem court fee. By providing a direct appeal to the High Court, second
appeals are also dispensed with. The Tribunal is to follow a summary procedure
for adjudication of claims being provided, the sections do not deal with the
substantive law regarding determination of liability. They only furnish a new
mode of enforcing liability. For determination of liability one has still to look to
the substantive law in the law of torts and Fatal Accident Act, 1855 or at any rate
to the principles thereof.”
Chapter XII of the Motor Vehicles Act, 1988 deals with the constitution of
Claims Tribunal, Application of Claims and award of compensation etc. This
chapter also deals with procedure followed by tribunals in awarding claim and
awarding of interest and compensatory costs in some cases and appeals against
the orders of claims tribunal.
B. Establishment and Composition of Claims Tribunal.
Section 165 of Motor Vehicles Act, 1988 empowers the State Government to
constitute Claims Tribunal to adjudicate upon claims for compensation arising
out of motor vehicle accidents, resulting in death or bodily injury to persons or
damages to any property of third parties.
A State Government may, by notification in the Official Gazette, constitute one
or more Motor Accidents Claims Tribunal (hereafter in this Chapter referred to
as Claims Tribunal) for such area as may be specified in the notification for the
purpose of adjudicating upon claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons arising out of the use of motor
vehicles, or damages to any property of a third party so arising, or both3.
3 The Motor Vehicles Act, 1988, Section 165 (1)
101
For the removal of doubts, it is hereby declared that the expression “claims for
compensation in respect of accidents involving the death of or bodily injury to
persons arising out of the use of motor vehicles” includes claims for
compensation under section 140 and section 163-A4.
A Claims Tribunal shall consist of such number of members as the State
Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof5.
A person shall not be qualified for appointment as a member of a Claims
Tribunal unless he is or has been a Judge of a High Court, or is or has been a
District Judge or is qualified for appointment as a High Court Judge or as a
District Judge6.
Where two or more Claims Tribunal are constituted for any area, the State
Government, may by general or special order, regulate the distribution of
business among them7.
I. Setting up of Claims Tribunal
A State Government may, by notification in the official gazette, constitute
one or more motor accident claims tribunal for such area as may be specified
in the notification.
In Minu B. Mehta v. Balkrishna8it was held by the Supreme Court of India
that the power of a State Government to constitute Claims Tribunal is
optional, and the State Government may not constitute a Claims Tribunal for
certain areas.
4 Ibid., Explanation to Section 165 (1) 5 Ibid., Section 165 (2) 6Ibid., Section 165 (3)
7 Ibid., Section 165 (4) 8 Minu B. Mehta v. Balkrishna, A.I.R. 1977 S.C. 1248
102
Where any claims Tribunal has been constituted for any areas, no civil court
shall have jurisdiction to entertain any question relating to any claim for
compensation which may be adjudicated upon by the Claims Tribunal for
that area, and no injunction in respect any action taken or to be taken by or
before the claims tribunal in respect of the claim for compensation shall be
granted by the civil court.
In Sushma Mehta v. Central Provinces Transport Services Ltd9 it was
held by the court that no tribunal can be constituted unless there has been
firstly, a notification of the State Government and Secondly, such notification
has been published in the official gazette of the state.
II. Appointment of Member
A Claims Tribunal shall consist of such number of members as the State
Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof.
Appointment of a person as member of tribunal by name is not necessary and
appointment with reference to an office is sufficient. But, it does not mean
that no appointment by name can be made. If a person fulfils the qualification
test for such appointment, any person can be appointed to be a member of a
tribunal by name. The usual practice has been to designate as claims tribunal,
the District Judge or Additional District Judge, provided the latter is qualified
to become a District Judge.
In Anirudh Prasad Ambasta v. State of Bihar10
it was held that a District
Judge or Additional District Judge, when appointed as member of the
9 Sushma Mehta v. Central Provinces Transport Services Ltd, AIR 1964 (MP) 133 (DB) 10 Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 (Pat.) 49
103
tribunal would continue to exercise his original jurisdiction as a member of
the State Judicial Service.
III. Appointment of Member by Name not Necessary
Delhi High Court in New Asiatic Transport (P) Co. Ltd. v. Manohar
Lal11
held that appointment of a person as Member of Tribunal by name is not
necessary and appointment with reference to an office is sufficient.
However, it does not follow that no appointment by name can ever be made.
If a person fulfils the qualification test for such appointment, any person can
be appointed to be a Member of a Tribunal by name. The usual practice has
been to designate as Claims Tribunal, the District Judge or Additional
District Judge, provided the latter is qualified to become a District Judge. A
District Judge or Additional District Judge, when appointed as Member of
the Tribunal would continue to exercise his original jurisdiction as a Member
of the State Judicial Service12
.
However, the person so appointed shall function not virtually as court, but
purely as persona designate13
.
The following points should not be ignored while appointment of a person or
denominating any particular judicial officer, to be a Member of the Tribunal:
(a) Notification of Appointment is Necessary
A notification is always necessary for constituting a Claims Tribunal, and
vesting of powers of a Claims Tribunal, whether by name or with
reference to the judicial office. Without notification even a district judge
11
New Asiatic Transport (P) Co. Ltd. v. Manohar Lal, (1966) 68 Punj. LR (Del.) 51. 12
Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 ACJ 238 (Pat.) FB 13
New India Assurance Co. Ltd. v. Molia Devi, 1969 ACJ 164 (MP) DB
104
cannot exercise the powers of a Claims Tribunal, merely because he is a
District Judge and in a case a claim for compensation has been filed
before a District Judge not backed by a notification designating him as
Claims Tribunal, the claim so filed shall not be a claim filed under
Section 166 of the Motor Vechiles Act, 1988 and in that case such claim
shall have to be returned to the claimant for presenting it before a duly
nominated Claims Tribunal14
.
(b) Transfer of Claim Application from District Judge to
Claims Tribunal
Transfer of a claim application filed before a District Judge to the
Competent Claims Tribunal, as concerned to in K.P.Verma v. State of
Bihar15
, will be misconceived since the power of such transfer is ont
inherently vested in the civil court in which such claim has been
erroneously filed, but can be exercised by High Court only either under
Section 24 of the Civil Procedure Code or under Article 227 of the
Constitution, and the only thing the civil court, bereft of the powers of a
Claims Tribunal, can do is to return the claim to the claimant under Order
7, Rule 10 of the Code of Civil Procedure, for it being presented to the
proper Tribunal constituted for that area under section 165 of the Motor
Vehicles Act, 1988.
(c) General Notification Designating All the District Judges as
Claims Tribunal
There can be a general notification designating all the District Judges as
Claims Tribunal. Such notification would be notification generally in
14 Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.495 15 K.P.Verma v. State of Bihar, 1990 ACJ 32 (Pat.) DB.
105
favour of a class of District Judges and then, whoever, occupies the office
of the District Judge shall function also as Claims Tribunal16
.
(d) Not to Confuse Powers of One Office with Other Office.
In Varalakshmi Sundar v. Meeran17
case, it was held by the Madras
High Court that a district Judge when appointed as Claims Tribunal shall
not confuse powers in one office with that of the other. While functioning
as Claims Tribunal, he cannot make use of all his powers as a District
Judge, because the powers of the same judicial officer while acting as
court as also a Claims Tribunal cannot be the same. Whereas a civil court
has plenary powers, the Claims Tribunal is vested only with specified and
limited powers as contemplated by or conferred under the Motor Vehicles
Act18
.
IV. Qualification for Appointment as Member of Claims Tribunal
A person shall not be qualified for appointment as a member of a Claims
Tribunal unless he is or has been a Judge of a High Court, or is or has been a
District Judge or is qualified for appointment as a High Court Judge or as a
District Judge.
The expression ‘is or has been’ a Judge of the High Court, or a District Judge
implies that a retired Judge of the High Court or a retired District Judge can
be appointed as the member, or the presiding officer, as the case may be, of a
Claims Tribunal.
The expression “qualified for appointment’ as High Court judge or as a
District Judge is referable to relevant provisions of the Constitution of India. 16 Supra n. 14 p.496 17
Varalakshmi Sundar v. Meeran, 1981 ACJ 50 (Mad.) 18 Satyabadi Nayak v. Dameli Khilla, 1991 ACJ 211 (Guj.) DB
106
In computing the period during which a person has held judicial office in the
territory of India, there shall be included any period, after he has held any
judicial office, during which the person has been an advocate of a High Court
or has held the office as a Member of a Tribunal or any post, under the Union
or a state, requiring special knowledge of law. Similarly, in computing the
period during which a person has been an advocate of a High Court, there
shall be included any period during which the person has held judicial office
of a member of a tribunal or any post under the Union or a State, requiring
special knowledge of law after he became an advocate.
V. Other Staff of Claims Tribunal
There is no separate provision for appointment of persons as staff of the
claims tribunal. In case a sitting judicial officer, falling within the definition
of a District Judge, is appointed as member of claims tribunal, the staff of
such appointee shall also function as staff of such Claims Tribunal. In the
case of constitution of the tribunal by appointing a person other than the
person holding the post of a District Judge, it would be open for the State
Government to furnish such tribunal with a staff of persons appointed or to
be appointed by the State Government19
.
VI. Claims Tribunal: Powers of Civil Courts
Claims tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services20
it was
held that technically grammatically speaking, tribunal may not be a civil
19 Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.497, 498 20 Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 (3) ACC 300 (Bom)
FB
107
court, but it has all the trapping of court since it passes an award which has
all the ingredients of a judgement as known under civil jurisprudence.
In the matter of Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal21
the distinction between courts and tribunal was pointed out by the Supreme
Court of India as follows:
“The word court is not defined in the Companies Act, 1956. It is not defined
in the Civil Procedure Code. The definition in the Indian Evidence Act is not
exhaustive, and is for the purpose of that Act. In the New English
Dictionary22
the meaning is given is: ‘an assembly of judges or other persons
legally appointed and acting as a tribunal to hear and determine any cause,
civil, ecclesiastical, military or naval”.
The Claims Tribunal shall, for the purposes of holding any determination
under this Act, have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908, while trying a suit in respect of the following
matters, namely:
a) The summoning and enforcing the attendance of any witness and
examining him on oath;
b) The discovery and production of any document;
c) The reception of evidence on affidavits;
d) The requisitioning of any public record or document or copy of such
record or document from any court or office; and
e) Such other matters as may be prescribed.
21 Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal, (1962) 2 SCR 339 22
New English Dictionary, Vol. II, p. 1090, 1091
108
VII. Claims Tribunal : A Substitute of Civil Courts for the Purpose
of Compensation Claims
To say that Claims Tribunal is a Court is entirely different from saying that a
Claims tribunal is a Civil Court. It is a civil court for all intents and purposes
of adjudication of claims for compensation in motor accident cases. From the
scheme of the Motor vehicles Act and the Rules framed thereunder, it is clear
that a Claims tribunal is constituted for a specific area, which is specified in
the notification for adjudication of such claim. The institution of the
proceedings is by an application for compensation. The tribunal disposes
such application by giving the parties an opportunity of being heard and
holding an inquiry in to the claim and it has to make an award determining
the amount of compensation is to be paid and the amount which is to be paid
by the insurer. The tribunal has been given all the powers of a civil judge for
the purpose of taking evidence on oath and enforcing the attendance of
witness and of compelling the discovery and production of documents. Rules
framed under the Act also confer all the powers of a civil court on the Claims
tribunal in so far as the same are not inconsistent with the provisions of the
Act. Right to appeal to the High Court is also provided.
Resort to Article 227 of Constitution of India in preference to Revision under
Section 151 of Civil Procedure Code, 1908
In New India Assurance Co. Ltd v. Ganga Devi23
it was held that as a
matter of law and practice both, where the statute has made provision for an
appeal against a judgement or order and right of appeal is absolute,
additional, restricted or otherwise, a revision against such judgement or order
does not lie.
23 New India Assurance Co. Ltd v. Ganga Devi, 2006 ACJ 2857 (Jhar.) DB
109
The reasoning conceding to the power of the High Court to entertain such a
revision seems to gravitate upon one or the other of the propositions not
appealing to the reason. The claims tribunal is said to have trapping of civil
court, but merely because some authority has been clothed with the trappings
of a court, it cannot logically follow that it is liable to be treated as civil court
for all intents and purposes. If the tribunal is or can be considered to be a
civil court, there is no use of employing the additive which inheres the
expression ‘trappings of court’. The use of this expression is itself indicative
that the possession of some trappings of a court cannot identify an authority
with a de facto civil court24
.
C. Application for Compensation
Section 166 of the Act provides for the form of application for compensation, the
person who may claim compensation, the time within which the application
should be filed, etc. It also provides that if the Claims Tribunal, thinks so, may
treat the accident report filed by the Police Officer as per Section 158 as an
application under this Act.
An application for compensation arising out of an accident of the nature
specified in sub-section (1) of section 165 may be made by the person who has
sustained the injury or by the owner of the property or where death has resulted
from the accident, by all or any of the legal representatives of the deceased or by
any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be25
.
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
24
Ibid. 25
The Motor Vehicles Act, 1988, Section 166(1)
110
behalf of or for the benefit of all the legal representatives of the deceased and the
legal representatives who have not so joined, shall be impleaded as respondents
to the application26
.
Every application under sub - section (1) of section 166 shall be made, at the
option of the claimant, either to the Claims Tribunal having jurisdiction over the
area in which the accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides, or carries on business or within
the local limits of whose jurisdiction the defendant resides and shall be in such
form and contain such particulars as may be prescribed27
.
Provided that where no claim for compensation under section 140 is made in
such application, the application shall contain a separate statement to that effect
immediately before the signature of the applicant28
.
The Claims Tribunal shall treat any report of accidents forwarded to it under
sub-section (6) of section 158 as an application for compensation under this
Act29
.
The state government may under rules prescribes the form of application for
compensation and sub section 2 of section 166 confers jurisdiction to entertain
and adjudicate on such application upon following three different tribunal:
1. The Tribunal within the local limits of whose jurisdiction the accident has
occurred, or:
2. The Tribunal within the local limits of whose jurisdiction the claimant
resides or carries on business, or
26 Ibid., Proviso to Section 166 (1) 27
Ibid., Section 166 (2) 28
Ibid., Proviso to Section 166 (2) 29
Ibid., Section 166(4)
111
3. Within the local limits of whose jurisdiction the defendant resides.
And confusion lingers as to which tribunal shall have jurisdiction to entertain
and adjudicate upon application or applications in cases where the claimants of a
person deceased in an accident, or the defendants, where there are more than
one, are residing or carrying on their business at two or more different places,
and the confusion is embittered particularly in absence of any statutory provision
for transfer of an application from one claims tribunal to another. Assuming that
such transfer at instance of one or more parties can be allowed by the High Court
under Article 227 of the Constitution, if not under section 24 of the code of Civil
Procedure, confusion can hardly be said to have been resolved if in case of
several claimants or several defendants, each may be residing or carrying
business in different states.
Assuming in the last resort, that the Supreme Court may be approached for
allowing such transfer of a claim from one tribunal to the other under Section 25
of the Code of Civil Procedure, it is difficult yet to conceive on what grounds
such transfer can be allowed, when each of the several claimants has legal right
to have his claim decided by the tribunal within the local limits of whose
jurisdiction he resides or carries on business.
In National Insurance Co. Ltd. v. Indu Sharma30
it was held by the High Court
that the proceedings on a claim for compensation under section 163A and
section 166 of the Act can go together, both being independent provisions and
awarding of compensation under section 163 A, unlike that under section 140,
does not detract or defeat the provisions of section 166.
30
National Insurance Co. Ltd. v. Indu Sharma, 2000 ACJ 808 (P&H)
112
In Ramdev Singh V. Chudasma v. Hansrajbhai V Kodala31
it was held by the
High Court that section 163A has specially provided for loss to the estate of the
deceased to a given extent without any proof where compensation on head of
loss of estate cannot be awarded without proof under section 166.
Claim application can be filed under Section 163A for claim to be determined on
structural formula basis provided in Schedule-II. Schedule-II has been adjudged
as suffering from severe mistakes and the Supreme Court has held that total
reliance cannot be placed on this schedule. Further the Schedule do not provide
any computation chart for the persons having more than Rs.40,000/- annual
income. Claim petition can also be filed under Section 166 of Motor Vehicle Act
pleading negligence where the claim shall be assessed by the Judge not on the
basis of structural formula but on the basis of evidence led.
The injured or the legal representatives of deceased can file claim application in
a prescribed format making driver, owner and insurer as party. Driver is not a
necessary party in some states. For e.g. in the Rajasthan Motor Accident Claims
Tribunal Rules only owner and insurer are required to be party. No limitation has
been prescribed for filing of the claim application. Initially when the law has
come into force the limitation was 6 months which was later increased to one
year and ultimately in the garb of welfare legislation the provision of limitation
has been deleted. A claim launched by dependents of deceased but not by his
legal representatives would be defective unless the legal representatives of the
deceased have been joined either as claimants or even as respondents32
.
31 Ramdev Singh V. Chudasma v. Hansrajbhai V. Kodala 1999 ACJ 1129 (Guj.) DB 32
Cheriyakutty Mammi v. UmmerKutty, 1996 ACJ 402 (Ker.) DB
113
I. Who Can File A Claim?
In case of damage to property, the application for compensation has to be
made by the owner of the property damaged. It is implied that in case of
death of owner of the property, the legal representatives of deceased owner
can competently claim compensation33
.
1. People, who have been injured in accidents on the road, can themselves
file for compensation or route the claims though their advocates.
2. But accident victims, who are below 18 years of age, cannot file for
compensation themselves; they have to go through their advocates.
3. Legal heirs of people who have died in accidents can also claim
compensation; alternatively, they can route their claims through their
advocates.
II. Who Can Report to MACT in Case of Accident?
Victim himself or through Advocate, in the case of personal injury. Through
advocate in case of minor applicant below the age of 18 years. Legal heirs
themselves or through advocate in the case of death. The owner of the
vehicle in the case of property damage.
III. Essential Documents Required to File Claim
Following documents are required along with application for compensation
claim34
:
1. Copy of the FIR registered in connection with said accident, if any. 33 Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.642 34 ‘MACT- Motor Accident Claims Tribunal’, Accessed on Website, www.Vakilno1.com. On
14.07.2010 at 3.22 p.m.
114
2. Panchnama copy (this is a list of damages that is drawn by cops in the
presence of witnesses).
3. Copy of the MLC/Post Mortem Report/Death Report as the case may be.
4. The documents of the identity of the claimants and of the deceased in a
death case.
5. Original bills of expenses incurred on the treatment along with treatment
record.
6. Documents of the educational qualifications of the deceased, if any.
7. Disability Certificate, if already obtained, in an injury case.
8. The proof of income of the deceased/injured.
9. Documents about the age of the victim.
10. The cover note of the third party insurance policy, if any.
11. An affidavit detailing the relationship of the claimants with the deceased.
12. RTO Certificate (showing name and address of owner and insurance
particulars of vehicle/s involved in the mishap).
13. Passport-Size Photograph.
14. Court-Fee Stamp35
.
35
Ibid.
115
IV. The Court Fees For Filling An Application For Compensation
1. Affix a court-fee stamp of Rs 10 if the compensation you are claiming is
less than Rs 5,000.
2. Affix a court-fee stamp that is worth .25 per cent of your claim if you are
asking for compensation that is between Rs 5,001 and Rs 50,000.
3. Affix a court-fee stamp that is worth .5 per cent of your claim if you are
asking for compensation that is between Rs 50,001 and Rs 100,000.
4. Affix a court-fee stamp that is worth 1 per cent of your claim if you are
asking for compensation that is more than Rs 100,000; but the maximum
fee that you have to pay is Rs 15,00036
.
D. Jurisdiction of Claims Tribunal
In Sanno Devi v. Balram37
it was held that jurisdiction of tribunal depends
essentially on the fact whether there had been any use of motor vehicle and once
it has been established, tribunal’s jurisdiction cannot be held ousted on findings
that it is negligence of other joint tortfeasor and not of the motor vehicle in
question.
A victim of an accident arising out of use of motor vehicles may file their claim
application to the Claims Tribunal within local limits of whose jurisdiction the
claimant resides or carries on business.
36 Ibid. 37 Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB
116
I. Pecuniary Jurisdiction
The pecuniary jurisdiction of the Claims Tribunal has a double implication
i.e. compensation in case of death or bodily injury and in respect of damage
caused to any property. Section 165 of the Act empowers the tribunal to
award compensation not only for death and bodily injury but also for damage
to property. As regards the former, there are three different provisions in the
Motor Vehicles Act, 1988, namely:
1. Compensation in certain cases on the principle of no fault, as provided in
section 140 of the Act.
2. Compensation on structured formula basis, under section 163-A of the
Act, and
3. Compensation which appears to the Claims Tribunal to be just, under
section 168 of the Act.
In the category of claims under 1. Above, i.e. compensation on principle of
no fault, compensation can be awarded either in cases of death or in cases of
permanent disablement of any person, and in either case, the fixed and
different amounts have been fixed respectively for death and permanent
disablement. The relevant provisions are sub-sections (1) and (2) of section
14038
.
II. Exclusion of Civil Court’s Jurisdiction not Readily Inferred
The civil courts under section 9 of the Civil Procedure Code, have general
and overall jurisdiction to try all suits of a civil nature and a suit wherein the
right to property or to an office is contested is a suit of a civil nature. The bar
38 Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.537.
117
of jurisdiction of the civil court cannot thus, readily inferred, and the
Supreme Court in a classic decision in Dhulabhai v. State of Madhya
Pradesh39
has covered out as many as seven exceptions to a statutory bar
created on jurisdiction of the civil court, seven exceptions are as under:
1. “Where the statute gives finality to the order of the special tribunal, the
civil court’s jurisdiction must be held to be excluded if there is adequate
remedy to do what the civil courts would normally do in a suit. Such
provision, however, does not exclude those cases where the provisions of
the particular Act have been complied with or the statutory tribunal has
not acted in conformity with the fundamental principles of judicial
procedure.
2. Where there is an express bar of jurisdiction of the courts, an examination
of the scheme of the particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court. Where there is no express exclusion, the
examination of the remedies and the scheme of the particular Act to find
out the intendment become necessary and the result of the inquiry may be
decisive. In the latter case, it is necessary to see if the statute creates a
special right or a liability and provides for the determination of the right
or liability and further lays down that all questions provides the said right
and liability shall be determined by the tribunal so constituted, and
whether remedies normally associated with actions in civil courts are
prescribed by the said statute or not.
3. Challenge to the provisions of the particular Act as ultra vies cannot be
brought before tribunal constituted under that Act. Even the High Court
39
Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78
118
cannot go into the question on a revision or reference from the decision of
the tribunal.
4. When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
5. Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a suit
lies.
6. Question of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit does
not lie if the orders of the authorities are declared to be final or there is an
express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is a relevant inquiry.
An exclusion of the jurisdiction of the Civil Court is not to be readily
inferred unless the conditions above set down apply”.
III. Jurisdiction in Respect of Cases Where Accidents Occurred
Prior to Establishment of Tribunal
The existence of a claims tribunal on the date of accident is not a condition
precedent for entertaining a claim for compensation. A claim for
compensation can be entertained by a Tribunal even in respect of an accident
which occurred at a time when there was no claims tribunal for that area.
119
In New India Assurance Co. v. Rukiyabai40
a motor accident took place
within the jurisdiction of the civil court at Nasik. There was no claims
tribunal on the date when the accident had occurred or on the date when the
suit for compensation was instituted in the Nasik. After the institution of the
suit, the claims tribunal came to be established, but even then the tribunal set
up at Nasik had no jurisdiction to entertain claim for compensation in respect
of accidents which occurred at a place within the territorial jurisdiction of the
Nasik court. It was, therefore, held that the notification establishing a tribunal
at Indore could not come in the way of the civil court at Nasik to proceed
with the claim instituted therein when no tribunal for that area was then in
existence41
.
IV. Bar on jurisdiction of Civil Courts
Section 175 bars the jurisdiction of Civil Courts where any Claims Tribunal
has been constituted.
Where any Claims Tribunal has been constituted for any area, no Civil Court
shall have jurisdiction to entertain any question relating to any claim for
compensation which may be adjudicated upon by the Claims tribunal for that
area, and no injunction in respect of any action taken or to be taken by or
before the Claims Tribunal in respect of the claim for compensation shall be
granted by the Civil Court42
.
In Vatticherukuru Village Panchayat v. Nori Venkataraman
Deehsithulu43
it was held by the apex court that the procedure before the
tribunal is simple and not hidebound by intricate procedure of pleadings and
40
New India Assurance Co. v. Rukiyabai, 1985 (2) ACC 499 41 State of Madhya Pradesh v. Pehlajrai Dwarkada, 1976 ACJ 222 (MP) DB 42
The Motor Vehicles Act, 1988, Section 175 43 Vatticherukuru Village Panchayat v. Nori Venkataraman Deehsithulu, 1991 (5) JT 140
120
trial, admissibility of the evidence and proof of facts according to law.
Therefore, there is abundant flexibility in the discharge of the functions with
greater expedition and in expensiveness.
In Gurbax Singh v. Financial Commissioner44
it was held by the Supreme
Court that despite the bar on civil courts jurisdiction under a statute, if the
special tribunal or authority acts ultra vires or illegally, the civil court has
power by virtue of section 9 of the C.P.C.to interfere and set matters right. If
the provisions of the statute have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of
judicial procedure, the civil courts have jurisdiction to examine such cases.
In Kishan Lal v. State of Jammu and Kashmir45
it was held by the court
that jurisdiction of civil court is not barred where the impugned order, being
in violation of mandatory provisions of the statute is without jurisdiction and
a nullity.
V. Bar on Jurisdiction of Consumer Dispute Redressal Forum
In Chairman Thiruvallurar Transport Corporation v. Consumer
Protection Council46
the deceased was travelling in an omni bus which met
with an accident while trying to avert a bullock – cart. It appears that when
the bus driver was in process of overtaking the bullock cart, the bullock got
panickly whereupon the driver swerved the bus to left and ran in to branches
of a tree on the roadside resulting in damage to the vehicle, the window panes
having been smashed. As the vehicle suddenly swerved and the driver
applied the brakes the deceased who was sitting in the centre of the rear seat
44 Gurbax Singh v. Financial Commissioner, AIR 1991 SC 435 45
Kishan Lal v. State of Jammu and Kashmir, (1994) 4 SCC 422 46 Chairman Thiruvallurar Transport Corporation v. Consumer Protection Council, AIR, 1995 SC
1384
121
was thrown in the front and hit against the iron side bar, sustaining a serious
head injury. Subsequently he succumbed to the injury.
The Consumer Protection Council, Tamil Nadu on behalf of the legal
representative of the deceased, lodged a complaint before the National
Commission under the 1986 Act claiming compensation. The appellant
contested the claim contending that the claimant i.e. the Council, had no
locus standi to maintain the action and in any case the National Commission
had no jurisdiction to entertain a petition since exclusive jurisdiction was
conferred by the 1988 Act on the Claims Tribunal constituted thereunder.
The National Commission contended the appellant, side stepped the question
regarding jurisdiction and without answering the same awarded Rs. 5.10 Lacs
by way of compensation with interest at 18% per annum with costs of Rs.
10,000/-. An appeal against the judgement was preferred to the Supreme
Court. The question that arose for consideration was whether the National
Commission had jurisdiction to entertain the claim application and award
compensation in respect of an accident involving death of the deceased
caused by the use of Motor Vehicle.
The Supreme Court without going in to depth of awarding of compensation
by National Commission to the victim, only answer the question of law as to
whether National Commission can entertain such case held that National
Commission has no jurisdiction whatsoever and was entirely wrong in
exercising jurisdiction and awarding compensation. However, in the facts and
circumstances of this case, the judgment pronounced by National
Commission was reversed and appellant were not entitled to recover the
compensation money already paid to the victim under the order’s of National
Commission.
122
Hence, claims for compensation arising out of use of motor vehicles cannot
be adjudicated by any of the Consumer Disputes Redressal Forums
contemplated and created under Consumer Protection Act, 1986.
The complaint in the case of motor accident cannot be said to be in relation to
any service hired or availed of by the consumer because the injury sustained
by the consumer has nothing to do with the service provided or availed of by
him if the injury is the direct result of the accident.
VI. Jurisdiction of Tribunal, Where Collision Between Trains And
Motor Vehicle Occurred
In Union of India v. Satish Kumar Patel47
where there is negligence only of
the driver of the motor vehicle or where there is negligence both of the driver
of the motor vehicle and of the railway, a claim is entertainable by the motor
accidents claims tribunal.
In Amritlal v.Union of India48
where the truck driver was warned by inmates
of truck about approaching railway engine and there was consequent
collision between truck and the engine on unmanned railway level crossing
and resultant death of some of the passengers in the truck and injuries to
other inmates of truck, award of compensation by the tribunal was held
justified and the railways was held not liable since it is no duty of railways to
man all level crossings.
In Union of India v. Bhagwati Prasad49
there was collision between a
passenger train and a taxi. The track was lying open even at time of passing
of the train. Some of the inmates of the taxi died and others sustained injury.
47 Union of India v. Satish Kumar Patel, AIR 2001 MP 41 48 Amritlal v.Union of India, 2004 ACJ 1868 (Raj.). 49 Union of India v. Bhagwati Prasad, AIR 2002 SC 1301.
123
It was held that once it is established that the accident arose out of use of
motor vehicle, the tribunal’s jurisdiction cannot be said to be ousted on a
finding that it was negligence of the other joint tortfeasor and not negligence
of the motor driver.
VII. Claimant to Choose Place of Jurisdiction
A plain reading of section 166(2) shows legislative intent to insert sub-
section (2) that making of claim application under section 166(1) has been
left totally at the option of the claimant, either to the claims tribunal having
jurisdiction over the area where the accident took place, or to such tribunal
within local limits of whose jurisdiction the claimant resides or carries on
business or within local limits of whose jurisdiction the defendant resides. In
other words, obviously the claimant can file an application within the
jurisdiction of claims tribunal (1) where the accident occurred, or (2) before
the tribunal within local limits of whose jurisdiction, claimant resides or
carries on his business, or (3) within local limits of whose jurisdiction, the
defendant resides or carries on his business. In Kusum Devi v.
Dungaram50
it was held that in view of the word “or” which separates three
clauses, the claimant can choose either of the three options and as per
legislative intent, there are three options implied, whereby he has been given
a right to pick one of three places for exercising his option.
In Mantoo Sarkar v. Oriental Insurance C. Ltd51
in this case injured, a
migrant labourer working in district Nanital, sustained injuries in collision
between a bus and truck at a place in Uttar Pradesh. It was held by the
Supreme Court of India that Tribunal of Nanital has jurisdiction to entertain
the claim.
50 Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.). 51
Mantoo Sarkar v. Oriental Insurance Co. Ltd, 2009 ACJ 564
124
VIII. Jurisdiction of Tribunal in India, where Accident occurred in
Foreign Country
A suit or proceeding can be filed in a court or tribunal having jurisdiction in
relation with the place where the cause of action or part thereof had arisen52
and where a bus was booked at Delhi, part of cause action had arisen in India
and the claimants can file a claim in the tribunal having jurisdiction over
place or residence of claimant under section 166(2) of the Act53
.
In the above case, a bus for pilgrimage from Delhi to Kathmandu was booked
at Delhi and vehicle was registered in India. The bus fell into a river in the
territory of Nepal. It was held that a claim under section 163A of the Act was
maintainable in a tribunal within the State of Punjab. It was further held that
the Motor Vehicles Operations and Contiguous Counties Rules, 1963 had no
application, since the rules could operate only if the claim was filed in Nepal.
Eventually, the insurer was held liable.
In Savara Pydi Raju v. T. Venkata Rao54
, it was held that as per amended
provisions of section 166(2) victims are entitled to make their claims in any
court having jurisdiction over place where accident occurred or over place
where they are residing.
IX. Jurisdiction to Entertain Claim by Indigent Person
The tribunal has trapping of civil court for the purpose of taking evidence on
oath and of enforcing attendance of witnesses and compelling the discovery
and production of documents and material objects and for such other
52 Civil Procedure Code, 1908, Section 20. 53
Sarbati v. Anil Kumar, 2006 ACJ 2532 (P&H). 54 Savara Pydi Raju v. T. Venkata Rao, 2007 ACJ 2245 (AP).
125
purposes as may be prescribed, as section 169(2) of the Motor vehicle Act,
1988 has stated. There is no direct reference of Order 33 of Civil Procedure
Code which deals with suits by or on behalf of indigent persons.
In State of Haryana v. Darshana Devi55
the Supreme Court of India
observed that the poor shall not be forced out of the justice market by
instance on court fee and refusal to apply the exemptive provisions of Order
XXXIII, Civil Procedure Code. So we are distressed that the State of
Haryana, mindless of the mandate of equal justice to the indigent under the
magna carta of our Republic, expressed in article 14 and stressed in article
39A of the Constitution, has sought of leave to appeal against the order of the
High Court which has rightly extended the pauper provisions to the auto
accident claims. The reasoning of the High Court in holding trail under Order
XXXIII will apply to tribunals which have the trappings of the civil court
finds our approval and hence upheld the decision of the High Court.
In Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin56
where a prayer
was made for filling the appeal as indigent person. The appellant was
permitted to file the claim before the tribunal as indigent person, but the
claim was dismissed. Permitting the appeal to be filed as indigent person the
court observed that in the legal aid programmes, whatever amount is paid as
legal assistance to the litigant….that is not repayable by the litigant. In the
case where a person comes up with a prayer that he may be permitted to file
appeal as an indigent person…by permitting him to file appeal as indigent
person, payment of court fee is only being deferred. So this court, while
dealing with such applications, should be more liberal which will advance the
cause of justice to poor persons.
55 State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC) 56 Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin, 2001 ACJ 346 (Guj.)
126
The court was of the view that in such matter, even notice to the opposite
party is unnecessary, since the other side can challenge the same later on with
necessary, cogent and justifiable evidence57
.
X. Death Occurred Due To Heart Attack : No Jurisdiction
In National Insurance Co. Ltd v. Chandra Prava Barman58
where the
insurer argued that admittedly the father of the claimant died on account of
heart attack and not due to vehicular accident, and that Motor Accidents
Claims Tribunal can award compensation only in connection with the
liability of the insurer on the insured which arises out of vehicular accident
and not for any remote cause. Holding this statement as well merited the
High Court held that the claim for death of the father might or could have
been taken up under Law of Torts and not by Motor Accidents Claims
Tribunal, which has got limited jurisdiction to deal with claims arising out of
accident. Such a claim which has been allowed by the tribunal could only be
within the competence of the civil court and not within the competence of the
Motor Accidents Claims Tribunal.
XI. Transfer of Claims from one Tribunal to another Tribunal
In Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka
Sangha59
the tribunal entertaining the claim was situated at a distance of 1000
kilometers from the claimants residence. Subsequent to the amendment of the
section, giving option to the claimants to file claim at the place of residence,
transfer of claim petition was allowed in conformity with the spirit of law as
amended.
57 Ibid. 58 National Insurance Co. Ltd v. Chandra Prava Barman, 2001(2) TAC 698 (Guj.) DB. 59 Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka Sangha,1997 ACJ 713 (Karn.).
127
In Sripal v. Rajendra Prasad60
the accident had occurred at Eath. The
claimant prayed for transfer of the claim proceedings from Eath to Etawah on
ground of his posting at Etawah, forcing difficulty in obtaining leave for
attending to proceedings at Eath. No prejudice was likely to caused to the
opposite party by such transfer. Transfer of proceedings was allowed in view
of the subsequent amendment in section 166 permitting claim to be instituted
at place of accident or at place of business of claimant or at place of
residence of defendant.
In Padminbai Ashok Yadle v. Mannan Ismail Shaikh61
the claim was
pending before the claims tribunal at Latur, whereas the claimant was
residing at Mumbai, the claim petition was transferred from tribunal at Latur
to the tribunal at Polghar.
The benefit of Section 166(2), which had been inserted by way of a
amendment in 1994, can be extended even in respect of a claim instituted
prior to such amendment.
XII. Claimant can Withdraw Applications and file it at
Appropriate Place
Where the claim was filed in a tribunal having Jurisdiction over the area in
which the accident occurred or defendant resides, but the claimant having
become totally crippled and unable to prosecute his claim there, he may be
allowed to withdraw his claim and file it afresh at a place where he usually
resides.
60
Sripal v. Rajendra Prasad, 1999 ACJ 92 (All.). 61 Padminbai Ashok Yadle v. Mannan Ismail Shaikh,2003 ACJ 247 (Bom.).
128
In B.K. Singh v. Union of India62
where the claim was filed in a tribunal in
Assam having Jurisdiction over the area in which the accident occurred, but
the claimant having become totally crippled and unable to prosecute his
claim, he was allowed to withdraw his claim and file it afresh at Pune as
desired by him.
XIII. Tribunal Cannot Entertain Application for Claim in Case of
Hit and Run Accident
A plain reading of Rule 20 of the Solatium Scheme, 1989, makes it clear that
an application seeking compensation under the Scheme in case of hit and run
accidents is to be filed in Form 1 before the Claims Enquiry Officer of the
Sub-Division in which the accident had taken place. Thus, under the scheme,
a particular forum has been provided for claiming compensation in case of hit
and run motor accidents. This being the position, claimants claiming
compensation in cases of death or grievous hurt arising under the hit and run
motor accidents cannot file application before the Claims Tribunal, and the
Claims Tribunal having no jurisdiction in the matter, the order of the Claims
Tribunal rejecting the objection taken by the insurer as regards the
maintainability of the application cannot be allowed to stand63
.
In Oriental Insurance Co. Ltd. v. Rooplal Singh64
’s case it was held by the
Patna High Court that the Claims Tribunal must return such application to be
filed before the Claims Enquiry Officer of the concerned Sub-Division in
which the accident had taken place and such matter has to be agitated before
the collector.
62 B.K. Singh v. Union of India, 2006 (4) ACC 242 (SC). 63
New India Assurance Co. Ltd. v. Rajendra Prasad Bhatt, 2002 ACJ 1762 (MP). 64 Oriental Insurance Co. Ltd. v. Rooplal Singh, 2000 ACJ 502 (Pat.)
129
E. Option Regarding Claims For Compensation In Certain
Cases
Section 167 of the Act lays down that when claim arises under this Act and
under the compensation only under either of these Acts and not under both the
Act.
Notwithstanding anything contained in the Workmen’s Compensation Act, 1923
where the death of, or bodily injury to, any person gives rise to a claim for
compensation under this Act and also under the Workmen’s Compensation Act,
1923, the person entitled to compensation may without prejudice to the
provisions of Chapter X claim such compensation under either of those Acts but
not under both65
.
In New India Assurance Co. Ltd. v. Mehebubanbibi66
the decision in the case
may be taken as an exception to the provision of section 167, wherein the facts
(at the cost of repetition) were that the deceased had been deputed by his
employer to carry a damaged transformer in a tractor, had fallen into a ditch. The
deceased, pressed under the damaged transformer in the ditch succumbed to his
injuries in the hospital. Death of the deceased had arisen out of and in the course
of employment since the deceased was employee of the electricity board and
died while on duty. Since the accident had occurred because of negligence of the
driver of the tractor, which belonged to a different person, it was held by the
Division Bench that the claimants, in the peculiar circumstance of the case, were
entitled to claim compensation under the Motor Vehicles Act as well as under
the Workmen’s Compensation Act.
65
The Motor Vehicles Act, 1988, Section 167 66
New India Assurance Co. Ltd. v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB
130
F. Award of the Claims Tribunal
Section 168 of the Act provides that the Claims Tribunal shall deliver the copies
of the award to the parties within fifteen days of the award and that the person
against whom the award is made shall deposit the amount awarded within thirty
days of announcement of the award.
On receipt of an application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application to the insurer and
after giving the parties (including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award determining the
amount of compensation which appears to it to be just and specifying the person
or persons to whom compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be paid by the insurer or
owner or driver of the vehicle involved in the accident or by all or any of them,
as the case may be67
.
Provided that where such application makes a claim for compensation under
section 140 in respect of the death or permanent disablement of any person, such
claim and any other claim (whether made in such application or otherwise) for
compensation in respect of such death or permanent disablement shall be
disposed of in accordance with the provisions of Chapter X68
.
The Claims tribunal shall arrange to deliver copies of the award to the parties
concerned expeditiously and in any case within a period of fifteen days from the
date of the award69
.
67 The Motor Vehicles Act, 1988, Section 168 (1) 68 Ibid., Proviso to Section 168 (1) 69 Ibid., Section 168 (2)
131
When an award is made under this section, the person who is required to pay any
amount in terms of such award shall, within thirty days of the date of announcing
the award by the Claims Tribunal, deposit the entire amount awarded in such
manner as the Claims Tribunal may direct70
.
In Ranu Bala Paul v. Bani Chakraborty71
it was held that an award under
Motor Vehicles Act, 1988 cannot be equated either with a civil or a criminal
case, and the tribunal while awarding compensation is not expected to go into
niceties or technicalities but must adopt a broad and a liberal approach.
In New India Assurance Co. Ltd. v. G. Lakshmi72
it was held that the tribunal
is expected to award a compensation which appears to be just, it follows that in
deserving cases, the tribunal may not be bound by the figure stated in the claim
petition and can award an amount even more that what has been claimed.
G. Procedure and powers of Claims Tribunal
Section 169 of the Act lays down the procedure to be followed by the Claims
Tribunal in setting claims compensation and the powers of the Claims tribunal.
In holding any inquiry under section 168, the Claims Tribunal may, subject to
any rules that may be made in this behalf, follow such summary procedures as it
thinks fit73
.
The Claims Tribunal shall have all the powers of a Civil Court for the purpose of
taking evidence on oath and of enforcing the attendance of witnesses and of
compelling the discovery and production of documents and material objects and
for such other purposes as may be prescribed; and the Claims Tribunal shall be
70 Ibid., Section 168 (3) 71 Ranu Bala Paul v. Bani Chakraborty, 1999 ACJ 634 (Gauhati) 72 New India Assurance Co. Ltd. v. G. Lakshmi , 1999 ACJ 1068 (AP) 73 The Motor Vehicles Act, 1988, Section 169 (1)
132
deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI
of the Code of Criminal Procedure, 197374
.
Subject to any rules that may be made in this behalf, the Claims Tribunal may,
for the purpose of adjudicating upon any claim for compensation, choose one or
more persons possessing special knowledge of any matter relevant to the inquiry
to assist it in holding the inquiry75
.
The procedure to be followed at the Claims Tribunal is as under:
I. Application for Compensation
First step at claims tribunal is application for compensation by either the
victim of motor vehicle accident or his legal heirs or legal representative.
Application for Compensation has been studied in detail earlier in this
chapter under para C with heading - Application for Compensation.
II. Amendment of Pleadings: Amendment for Enhancement of Claim
Amount
In Madan Lal v. Chimman Singh76
’s Case, it was held by the High Court
that amendment in pleadings cannot be refused on ground of doubt about
truth of averments in pleadings. Truth or otherwise of averments in pleadings
has to be ascertained on basis of evidence.
In a claim by widow for her and her minor son, the widow died during
pendency of proceedings and the son having become major south some
amendment in claim petition. It was wrong on part of Tribunal to have
disallowed amendment holding that there is no provision for amendment and
74 Ibid., Section 169 (2) 75
Ibid., Section 169 (3) 76 Madan Lal v. Chimman Singh, 1991 (1) ACC 265 (MP)
133
doubting bonafides or argument made in application for amendment. In
appeal, the amendment was allowed on costs77
.
In United India Insurance Co. v. Shaik Saibaqtualla78
it was held by the
High Court that there is no provision in law for amendment after decision of
claim. Subsequent events can be no basis for seeking amendment in original
claim after its decision.
An amendment in claim petition for enhancement of amount of compensation
can be sought before the Tribunal but not before the appellate court79
.
III. Notices, Summons, Processes and Service
On receipt of claim application Claims tribunal is duty bound to ensure
service of summons on owner and driver of the vehicle. Where a notice has
been sent in regular course as also through Registered Post, AD, but could
not be served on one of the two owners and there was nothing to show that
said owner was avoiding service or that claimant had made efforts to give
correct address of said owner, it was held that condition for substituted
service through newspaper was not satisfied. Case had to be remanded after
setting aside ex parte orders80
.
In Allanoor v. Dilip Singh81
case it was held by the High Court that the claim
cannot be dismissed by attributing default in filling process fee on part of
claimant for substituted service on owner.
77 Ibid. 78
United India Insurance Co. v. Shaik Saibaqtualla, 1992 ACJ 858 (AP) DB 79
Manager, New India Assurance Co. Ltd v. Chintnala@ Anagaiah Narasimha, 2002 ACJ 1524 (AP)
DB 80
Dayanand v. Baijnath, 1991 ACJ 975 (Raj.) 81 Allanoor v. Dilip Singh 1998 ACJ 136 (Raj.)
134
It was further held that summons on owner and driver of vehicle can be
served on counsel representing driver and owner in criminal court for
purpose of bail82
.
IV. Written Statement
The provision of Rule 1 of Order 1 Civil Procedure Code lays down that
written statement should be filed within 90 days from date of service is
directory and court can grant permission to file written statement even
beyond period of 90 days if a case in this regard is made out. This provision
does not specifically take away the power of court to record written statement
even after period of 90 days.
In Oriental Insurance Co. Ltd. v. Sanjay Kumar83
s case, the Hon’ble High
Court set aside the order of striking off defence in the interest of justice.
In New India Assurance Co. Ltd. v. Bimla84
’s case it was held by the High
Court that mere admission of driver in his written statement of some of
contentions raised in the claim petition cannot amount to collusion of driver
with the claimant. For the purpose of collusion, there should have been an
issue and for framing of issue, there should have been specific pleading.
Absence of pleadings in written statement that the conditions of insurance
policy were violated resulting in not casting any issue on the point, precludes
insurer to meet such objection85
.
82 Ibid. 83 Oriental Insurance Co. Ltd. v. Sanjay Kumar, 2007 ACJ 222 (P&H). 84
New India Assurance Co. Ltd. v. Bimla, 2001 ACJ 388 (P&H). 85 United India Insurance Co. Ltd. v. B. Hemavati, 2001 ACJ 749 (Cal.) DB
135
V. Summary Procedure for Holding Enquiry
In holding any enquiry under Section 168 of the Motor Vehicles Act, 1988,
the Claims Tribunal may, subject to any rules that may be made in this
behalf, follow such summary procedure as it thinks fit86
.
VI. Powers of Court in Respect of Taking Evidence on Oath,
Enforcing Attendance of Witness Etc.
The claims tribunal shall have all the powers of a civil court for the purpose
of taking evidence on oath and of enforcing the attendance of witness and all
compelling the discovery and production of documents and material objects
and for such other purposes as may be prescribed, and the Claims Tribunal
shall be deemed to be a civil court for all the purposes of Section 195 of the
Motor Vehicles Act, 1988 and Chapter XXVI of the Code of Criminal
Procedure, 197387
.
VII. Taking of Assistance of Persons Possessing Special Knowledge
The Claims Tribunal may, for the purpose of adjudicating upon any claim for
compensation choose one or more persons possessing special knowledge of
any matter relevant to the inquiry to assist it in holding the inquiry. This is
subject to any rules made in this behalf88
.
VIII. Framing of Issues
On receipt of application for compensation and written statement, it is the
duty of the claims tribunal to frame issues involved in the matter.
Adjudicating authority is required to pronounce its judgement on all issues.
86 The Motor Vehicles Act, 1988, Section 169(1) 87
Ibid. Section 169(2) 88
Ibid. Section 169(3)
136
In an accident cases, material propositions for framing issues would be
whether owner of vehicle was involved in accident and who was the person
driving the vehicle and whether accident took place due to rash and negligent
driving of vehicle89
.
Where there are several issues, no party can compel the tribunal to decide an
issue as preliminary issue particularly when the issue raised is not a question
of law or jurisdiction. Order of tribunal was not faulted90
.
Several claims in respect of one single accident when disposed of by
common award and some of them if not appealed from, the issue of
negligence attains finality in awards not appealed from, and same cannot be
reopened in appeal91
.
Once issues have been framed, it is incumbent on tribunal to record its
findings thereon. There is no scope for dismissal in default after claim has
been admitted and issues have been framed. If a claim has been dismissed
after framing issues, Order 9 of Civil Procedure Code would apply for its
restoration92
.
IX. Ex Parte Proceedings – Dismissal in Default, Restoration etc.
Where defendants failed to submit written statement as well as failed to
appear before the tribunal either personally or through authorised
representatives or submit written statement but subsequently failed to appear,
the tribunal may record the defendants as ex-parte.
89 Kanti Lal v. Manohar Lal, 1994(1) ACC 413 (MP) 90
Oriental Insurance Co. Ltd. v. Ram Babu, 2007 ACJ 1406 (All.) 91
Oriental Insurance Co. Ltd. v. Badri Ram, 2002(1) TAC 194 (Raj.) 92 Burmi v. Tej Bhan, 1994(2) AJR 24 (P&H).
137
Remedy against order of tribunal refusing to set aside ex-parte award lies in
petition under Article 227 of Constitution of India. A miscellaneous appeal
under Order 43, Rule 1 of Civil Procedure Code is not maintainable nor can
such appeal be treated as petition under article 227 of the Constitution,
though such petition can be filed afresh93
.
An application for setting aside ex parte award was dismissed as not pressed.
It was held that point of ex parte award cannot be reopened or reagitated in
appeal, since fact of application to set aside ex parte award being dismissed
as not pressed amounts to acceptance that defendant was properly declared ex
parte94
.
Where a claim petition was dismissed on the day fixed for evidence but
absence of claimant was not deliberate and counsel of claimant had gone out
of town, it was held that a party cannot be penalized for mistake or
negligence of counsel95
.
X. Judgement – Finding on all Issues Necessary
On receipt of an application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application to the insurer and
after giving the parties (including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award determining the
amount of compensation which appears to it to be just and specifying the
person or persons to whom compensation shall be paid and in making the
award the Claims Tribunal shall specify the amount which shall be paid by
93 Mangla Jat v. Raju, 2001(2) ACC 195 (Raj.) 94 Gourikutty v. Raghavan, 2002 ACJ 1356(Ker.) DB 95
Urmila Devi v. Sukhdev Singh, 2002(1) ACC 157 (MP)
138
the insurer or owner or driver of the vehicle involved in the accident or by all
or any of them, as the case may be96
.
It is duty of tribunal to record findings on all issues, even if on the finding of
one or other of the issues, it was possible to decide the matter one way or the
other. Under Order 20, Rule 5 of Code of Civil Procedure, it is mandatory
that the court shall state its finding or decision, with the reason therefore,
upon each separate issue and all the distinct issues have to be answered
separately. The exceptional situations are only those provided under Order
14, Rule 2(2), where an issue relating to the jurisdiction or a bar to a suit/
proceedings is required by any law for the time being in force to be decided
as a preliminary issue, where evidence is recorded on all the issues, when
there is scope of appeal, under Section 173 of the Act, to avoid delay and
protraction of litigation, that tribunal/ court should, when dealing with matter
dispose of all issues and not merely to rest its decision on one or more issues
by leaving unanswered the remaining issues97
.
XI. Delivery of Copies of Award to Parties within 15 Days
Section 168(2) of the Motor Vehicles Act, 1988 provides that the Claims
Tribunal shall arrange to deliver copies of the award to the parties concerned
expeditiously and in any case within a period of fifteen days from the date of
award.
XII. Person Required to Pay Compensation in Terms of Award to
Deposit the Entire Amount within 30 Days.
Section 168(3) states that when an award is made under this section, the
person who is required to pay any amount in terms of such award shall within 96
The Motor Vehicles Act, 1988, Section 168 (1) 97
Mallamma v. Mahaboob Ali, AIR 2010 (NOC) 10 (Karn.)
139
30 days of the date of announcing the award by the Claims Tribunal deposit
the entire amount awarded in such manner as the Claims Tribunal may direct.
It may also be noted here that ordinarily while awarding compensation, the
provisions contained in the second schedule may be taken as a guide
including the multiplier, but they may arise some cases, as one in hand,
which may fall in the category having special feature or facts calling for
deviation from the multiplier usually applicable98
.
XIII. Execution of Award of Claims Tribunal
Executing court is not empowered to reconsider any aspect of award afresh
but is required to execute it as passed by trial court. Execution of award if
taken out after twelve years is not permissible. The award if not executed
within twelve years becomes inoperative and unenforceable99
.
The executing court while enforcing the award cannot travel beyond the main
award. Where the offending vehicle was the exclusive property of the U.P.
State Road transport Corporation, the Corporation would be liable for
payment of compensation qua the accident. Any subsequent apportionment
of the assets of the corporation between the state of U.P. and State of
Uttranchal can be no ground to obstruct execution of the award so as to
adversely affects the rights of the claimant. Application of the corporation for
Impleading Uttranchal State Road Transport Corporation was held rightly
rejected by the executing court100
.
Jurisdiction of tribunal to enforce its award is not limited only one method,
namely issuance of certificate to the collector for recovery of the amount due
98
United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2616 99
Mt. Prag Kaur v. Devi Dutt, 1998(1) ACC 313 (P&H). 100
U.P.State Road Transport Corportaion v. Motor Accident Claims Tribunal, AIR 2006 NOC 198
140
under the award as arrears of land revenue. The tribunal posses inherent
jurisdiction to enforce its own award in accordance with the provisions of the
Code of Civil Procedure as applicable to execution of orders and decrees
passed by a civil court. When tribunal possesses such inherent jurisdiction,
the claimant cannot be asked to follow another procedure and the tribunal is
to execute the award under Order 21, Rule 11 of Civil Procedure Code101
.
H. Assessment of Claim
The assessment of compensation, however, be made good but cannot be said to
be fool proof. In every such assessment certain assumptions are to be made and
there is all possibility of variance from Judge to Judge in applying the various
principles enunciated by the Courts from time to time. Lord Viscount Simon has
evolved a method of assessment known as "Nance's method" more popularly as
"discounting method". Another popular method, which is known as Davis
Method was evolved by Lord Wright.
Hon'ble Supreme Court while dealing with a matter evolved a formula. Yearly
Income Yearly expenditure on Deceased gives the sum expended on legal
representatives. If this amount is capitalized subject to certain deductions,
pecuniary loss to the family can be assessed. While improving the above formula
Supreme Court in C.K.Subramonia Iyer v. T. Kunhikuttan Nair102
case has
stated that there is no exact uniform rule for measuring the value of human life
and measure of damages cannot be arrived at by a mathematical calculation but
the amount recoverable depends upon life expectancy of legal representative
beneficiaries. In the same period Lord Diploc has evolved Interest Capitalization
method by calculating net pecuniary loss on annual basis and multiplied with
number of years purchase. The Hon'ble Supreme Court of India with the
101
Mishra v. Motor Accident Claims Tribunal, 2006(1) ACC 362. 102 C.K.Subramonia Iyer v. T. Kunhikuttan Nair, AIR, 1970 SC 376
141
development of accident claims has decided the landmark case of General
Manager, Kerala State Road Transport Corporation v. Susamma
Thomas103
has started giving appreciation to the annual income of deceased.
This appreciation ranges to the double of income depending upon the nature of
job, age, future prospects etc. Supreme Court has held that after determining and
doubling annual income, 1/3 should be deducted towards the expenses to be
incurred on the deceased and the remaining amount should be multiplied by a
multiplier depending on the age of deceased and beneficiary. The maximum
multiplier approved by Supreme Court in this case was 16. Later, Supreme
Court's 3 Judges bench have approved the Davis formula along with
determination of dependency on unit basis in which the adults have been taken
as 2 units and the minors has been taken as 1 unit. The multiplier, which was
approved as 16 in Sushma Thomas case, was increased to maximum of 18. In
this case the court did not allow double of the amount except that a premium
may be given looking to the future prospects. But, in a recent Supreme Court
judgment, in order to make compensation just and to take consideration of
overall factors multiplier was reduced from 16 to 12 in case of deceased of 38
years. In same facts and circumstances, in another case Supreme Court has said
for determination of multiplier depends upon (1) age of deceased (2) age of
claimants (3) marital status (4) education and employment of the claimants; and
(5) loss of pecuniary benefits. The Supreme Court has also held that criteria of
awarding compensation include some guess work, some hypothetical
consideration and some amount of sympathy linked with the nature of disability
caused are all involved. But, all such elements are required to be viewed with the
objective standard104
.
103 General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, AIR, 1994SC
1631. 104 Ibid.
142
In view of the above case laws, one can say that the assessment of compensation
is to be guided by way of applying precedents on the facts and circumstances of
a particular case. It should not be misunderstood that an injured or legal
representatives of the deceased should be given exorbitant claim, but the law
restrict them to be "just compensation" so as to save the injured or legal
representatives of deceased from possible pecuniary and non-pecuniary losses
guided by the above judgments.
I. Impleadation of Insurer in Certain Cases
Section 170 of the Act provides for impleadation of insurer in certain cases.
Where in the course of any inquiry, the Claims Tribunal is satisfied that there is
collusion between the person making the claim and the person against whom the
claim is made or the persons against whom the claim is made has failed to
contest the claim, it may, for reasons to be recorded in writing, direct that the
insurer who may be liable in respect of such claim, shall be impleaded as a party
to the proceeding and the insurer so impleaded shall thereupon have, without
prejudice to the provisions contained in sub-section (2) of section 149, the right
to contest the claim on all or any of the grounds that are available to the person
against whom the claim has been made105
.
In Manful v. Mehmood106
it was held that strict rules of evidence are not
applicable to proceedings before the Tribunal and it is to be prima facie
established that accident took place with a motor vehicle and injury caused or
resulted into death of the victim.
Section 170 of the Act has also contemplated an additional situation wherein the
insurer has to be necessarily impleaded and for that an occasion arises only when
105
The Motor Vehicles Act, 1988, Section 170 106
Manful v. Mehmood, 2005 (1) ACC 765
143
the Claims Tribunal gets satisfied that the claimant and the owner of the vehicle
are in collusion or where the owner or driver has not contested the claim and as
regards the former, it is unusual for the tribunal to smell any such collusion and
it is only the insurer who has to make such application and satisfy the tribunal by
adducing evidence that there has been a collusion between the claimant and the
insured owner of the vehicle. On the tribunal being satisfied, it shall allow the
insurer to take over the entire defence, raise all such pleas as be available to the
owner- insured, and such pleas shall, then be in addition to the statutory defences
available to or already taken by the insurer under section 149 (2).
In National Insurance Co. Ltd. v. Anjana Shyami107
it was held that unless
tribunal has permitted the insurer to contest the claim on all or any other grounds
that are available to persons against whom the claim had been made, application
under section 170 is not maintainable.
J. Award of Interest Where Any Claim is Allowed
Section 171 of the Act empowers the Claims Tribunal to order that simple
interest at such rates as it thinks fit shall also be paid along with the award of
compensation.
Where any Claims Tribunal allows a claim for compensation made under this
Act, such Tribunal may direct that in addition to the amount of compensation
simple interest shall also be paid at such rate and from such date not earlier than
the date of making the claim as it may specify in this behalf108
.
107
National Insurance Co. Ltd. v. Anjana Shyami, 2001 (2) AJR 523 108
The Motor Vehicles Act, 1988, Section 171
144
K. Award of Compensatory Costs in Certain Cases
Section 172 of the Act seeks to empower the Claims Tribunal to award special
compensatory costs where in certain cases it is found that there has been mis-
representation of case or vexatious to claims or defence.
Any Claims Tribunal adjudicating upon any claim for compensation under this
Act, may in any case where it is satisfied for reasons to be recorded by it in
writing that the policy of insurance is void on the ground that it was obtained by
representation of fact which was false in any material particular or any party or
insurer has put forward a false or vexatious claim or defence such Tribunal may
make an order for the payment, by the party who is guilty of misrepresentation
or by whom such claim or defence has been put forward of special costs by way
of compensation to the insurer or, as the case may be, to the party against whom
such claim or defence has been put forward109
.
No Claims Tribunal Shall pass an order for special costs under sub section (1) of
section 172 for any amount exceeding one thousand rupees110
.
No person or insurer against whom an order has been made under this section
shall, by reason thereof be exempted from any criminal liability in respect of
such mis-representation, claim or defence as is referred to in sub-section (1) of
section 172111
.
Any amount awarded by way of compensation under this section in respect of
any mis-representation, claim or defence, shall be taken into account in any
109 Ibid., Section 172 (1) 110 Ibid., Section 172 (2) 111 Ibid., Section 172 (3)
145
subsequent suit for damages for compensation in respect of such mis-
representation, claim or defence112
.
L. Tribunal’s Jurisdiction to Set Aside Award Procured by Fraud
In Oriental Insurance Company Ltd. v. R. Mani113
since fraud affects the
solemnity, regularity and orderliness of the proceedings of the court and also
amounts to an abuse of the process of court, the courts have been held to have
inherent powers to set aside an order obtained by fraud practiced upon the court.
Similarly, where the court is misled by a party or the court itself commits a
mistake which prejudices a party, the court has the inherent jurisdiction to recall
its order.
It was held that where an award had been obtained on basis of a fabricated
policy, the commissioner of workmen’s compensation, was empowered to
reopen the case if allegation of fraud was sustainable114
.
In National Insurance Co. Ltd. v. Murti Devi115
, where a fraud was committed
on the insurer which had not been taken note of by the tribunal while passing its
award. The fraud perpetrated by the claimants had come to the knowledge of the
insurer even while proceedings were before the tribunal, yet the insurer had not
filed an application under section 170 of the Motor Vehicles Act, for obtaining
an order to contest the claim on all grounds that are available to the insured. The
insurer having failed to do so, the court was of opinion, in view’s of the court’s
earlier decision in National Insurance Co. Ltd. v. Balbir Kaur116
that the
appeal by the insurer was not maintainable. However, the appeal was treated as a
writ petition and it was held that if a fraud has been committed by the claimants,
112 Ibid., Section 172 (4) 113 Oriental Insurance Company Ltd. v. R. Mani, 2000 ACJ 247 114
Ibid. 115 National Insurance Co. Ltd. v. Murti Devi, 2002 (1) TAC 470 (P&H) DB. 116
National Insurance Co. Ltd. v. Balbir Kaur, 2001 ACJ 555 (P&H) DB.
146
it was open to the insurer to have moved an application before the tribunal under
section 151, 152 or 153 of the Civil Procedure Code for recalling the award. It
was observed that as and when such application be filed, the same shall be
considered and disposed of by the tribunal.
M. Appeals Against the Decisions of Claims tribunal
Section 173 makes provision for appeal to High Court by the aggrieved against
the orders of Claims tribunal and where the person aggrieved is the person who
has to pay the compensation such person shall deposit 50 percent of the amount
awarded as directed by the High Court.
Subject to the provisions of sub-section (2), any person aggrieved by an award of
a Claims Tribunal may, within ninety days from the date of the award, prefer an
appeal to the High Court117
.
Provided that no appeal by the person who is required to pay any amount in
terms of such award shall be entertained by the High Court, unless he has
deposited with it twenty-five thousand rupees of fifty per cent, of the amount so
awarded, whichever is less, in the manner directed by the High Court118
.
Provided further that the High Court may entertain the appeal after the expiry of
the said period of ninety days, if it is satisfied that the appellant was prevented
by sufficient cause from preferring the appeal in time119
.
No appeal shall lie against any award of a Claims Tribunal if the amount in
dispute in the appeal is less than ten thousand rupees120
.
117 The Motor Vehicles Act, 1988, Section 173 (1) 118 Ibid., Proviso to Section 173 (1) 119 Ibid., Proviso to Section 173 (1) 120 Ibid., Section 173 (2)
147
The condition of deposit of Rs. 25,000/- or 50% of the amount, whichever is
less, as imposed by the first proviso to Section 173(1) is a rule which is
unexceptionable. Nor can the amount as specified to be deposited be reduced.
Such conditions are imposed in other statutes, for example, under section 21 of
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and
under the third proviso to section 30 of the Workmen’s Compensation Act, 1923.
In H. Paul v. Bank of India121
it was held that the remedy of appeal cannot be
said to be illusory merely because the appellant is required to deposit the
prescribed amount.
Provision of appeal has been provided under Section 173 of Motor Vehicle Act.
But the courts have held that the right to appeal is available only to the driver
and owner against whom the award is passed. The right of Insurance Company
to file appeal is not permitted on the ground of quantum or negligence. Insurance
Company can file appeal only on the ground of statutory defenses available.
In circumstances where the application under Section 170 has been rejected, the
insurance Company has got right of one judicial review on the reasons of
rejection either by filing writ petition or to agitate the matter in appeal. Similarly,
in all other circumstances where no order has been passed by the court or no
reasons have been recorded by the Tribunal. Such act cannot be accountable to
the insurer and the insurer must get an opportunity to challenge the same. I am
impressed by a judgment passed by Himachal Pradesh High Court in which the
court has referred the 3 Judges Bench Supreme Court judgment of Nicolletta
Rohtagi and has held that in these circumstances the insurer can file appeal and
agitate these issues in appeal before the Court and if the court found it proper
will permit to continue the appeal and to decide the appeal on merit.
121 H. Paul v. Bank of India, 1998 ISJ (Banking) 550 (P&H) DB
148
In my humble opinion this provision (section 173) is not of benefit to anybody
because it do not provide the right to appeal to one of the litigating party who
has to make payment of compensation i.e. insurer. If the owners are not
participating or presenting themselves in order to help the claimants, the insurer
would not be in a position to control the high awards in want of cross
examination of income and other issues. Legislature has already restricted the
right of defense but a further restriction of not participating in the trial would not
be just. There is imminent need of amendment to permit the insurer to contest
the claims as they are the persons who have to make payment of the
compensation. Once the insurance cover is available, the owner feels safe and do
not help the Insurance Company in the process of contesting the claim.
Further, now a day, if seriously quantified, a good number of cases are coming
as a flood in the courts of law for compensation. This is because of huge sum of
compensation are allowed to the claimants and for that purpose fake accidents,
fake drivers are planned with the connivance of the police. The police in
connivance do not investigate the matter of delay in lodging of F.I.R., delay in
recording of statements. In these circumstances, a right to contest on merit and
quantum should be provided to the Insurance Company in order to make the
contest just and equitable.
It may be useful to mention here that the condition of deposit cannot be bypassed
by filling a writ petition instead of appeal. In Sushil Kumar Jaiswal v. Bank of
India122
it was held that the petitioner cannot be permitted to resort to exercise of
revisional jurisdiction under Article 227 merely to avoid the rigour of the
statutory provision of appeal.
122
Sushil Kumar Jaiswal v. Bank of India , 1997 Bank LJ 37
149
In Dwarka Nath v. Income Tax Officer, Kanpur123
, it was observed by the
Supreme Court, as far as back in 1966 that Article 226 is couched in
comprehensive phraseology and it ex facie confers a wide power on the High
Courts to reach injustice wherever it is found. A wide language in describing the
nature of the power, the purpose for which and the person or authority against
whom it can be exercised was designedly used by the constitution.
In Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor124
it was held that
the bar of appeal in case of the award being less than Rs. 10,000/- reflects the
intention of the parliament that if amount of an award is less than Rs. 10,000/- or
below, the same should be paid without demur or contest. It follows that the bar
created by Section 173 (2) cannot be bypassed by filling a writ petition except in
extraordinary circumstances.
N. Recovery of Money from Insurer as Arrear of Land Revenue
Where any amount is due from any person under an award, the Claims tribunal
may, on an application made to it by the person entitled to the amount, issue a
certificate for the amount to the Collector and the Collector shall proceed to
recover the same in the same manner as an arrear of land revenue125
.
A person entitled for amount under an award by Claims tribunal in a motor
accident may move an application to the claims tribunal under Section 174 of the
Act for recovery of the amount awarded by the claims tribunal and claims
tribunal may issue to such claimant a certificate for such amount and collector
may proceed under such certificate to recover the amount as an arrear of land
revenue.
123 Dwarka Nath v. Income Tax Officer, Kanpur , AIR 1966 SC 81 124
Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor , 2000 ACJ 558 (Ker.) 125
The Motor Vehicles Act, 1988, Section 174
150
O. Power of State Government to Make Rules
Section 176 of the Act confers upon the State Government to make rules for
carrying into effect provisions of clauses 165 to 173.
A State Government may make rules for the purpose of carrying into effect the
provisions of sections 165 to 174, and in particular, such rules may provide for
all or any of the following matters, namely :-
(a) the form of application for claims for compensation and the particulars it
may contain, and the fees, if any, to be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry
under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims
Tribunal;
(d) the form and the manner in which and the fees (if any) on payment of
which an appeal may be preferred against an award of a Claims Tribunal;
and
(e) any other matter which is to be, or may be, prescribed.
P. Insurer and No Fault Liability
In Bani Ram Das v. National Insurance Co. Ltd126
it was held that the statute
never placed any liability on the insurer to pay compensation under no fault
liability even if vehicle is covered under a valid insurance policy since the statute
clearly placed that liability on the owner to pay.
126 Bani Ram Das v. National Insurance Co. Ltd , 2008 ACJ 538
151
Q. No Fault Claim Can Be Proved At Appellate Stage also.
In Walmikrao Jayaram Kajale v. Uttam Buvaji Raut127
in this matter the
claim was that motor cyclist on motorcycle A was hit by motorcycle B from
behind but the defence that motorcycle A having been broken down was being
towed by motorcycle B but the motorcyclist got injured because the towing rope
had given way, was held proable by the appellate Court. The tribunal had
dismissed the claim but the appellate court held that the claimant despite
rejection of his claim on fault liability could agitate the claim under no fault
liability even at the stage of appeal.
In Lakshmi Soren v. New India Assurance Co. Ltd.128
a victim initially
injured in accident had died within one year from date of discharge from
hospital. There was no evidence that he ever led a normal life after discharge
from hospital. In view of close proximity of time of death of victim from date of
discharge, cause of death being nothing but injuries, award under no fault
liability was passed in appeal for Rs. 50,000, even if the fault claim was
dismissed by the tribunal.
R. Multiplier in Second Schedule when to be ignored
In Usha v. Tamil Nadu State Road Transport Corp. Ltd.129
It was held that
the multiplier set out in Second Schedule is not all conclusive, and can vary
depending upon circumstances, and in some cases it could be more and in others
less than what is contemplated in the section.
127 Walmikrao Jayaram Kajale v. Uttam Buvaji Raut , 2004 ACJ 2009 128
Lakshmi Soren v. New India Assurance Co. Ltd., 2006 ACJ 551 (Cal) DB 129 Usha v. Tamil Nadu State Road Transport Corp. Ltd., 2009 ACJ 2424 (Mad.)
152
In United India Insurance Co. Ltd. v. Dhanlaxmiben Satishbhai Bhagat130
it
was held that the multiplier is on higher side, the multiplier indicated in the
Second Schedule may not be adopted.
Since section 163A is incomplete without the text of the Second Schedule of the
Motor Vehicles Act, 1988, the same for purposes of determining the pecuniary
jurisdiction of the Claims tribunal under that section has to follow section 163A.
Multiplier Table in Claim Cases under Section 166
Multiplier to be Adopted
Age of the Victim (in
Years)
In regard to Accident
prior to 14.11.1994
In regard to Accident
after 14.11.1994
18 to 22 16 18
23 to 27 15 17
28 to 32 14 16
33 to 37 13 15
38 to 42 12 14
43 to 47 11 13
48 to 52 10 12
53 to 57 9 11
58 to 62 8 10
63 to 67 7 9
68 to 72 6 8
73 to 77 5 7
130 United India Insurance Co. Ltd. v. Dhanlaxmiben Satishbhai Bhagat, 2008 ACJ 966 (Guj.) DB
153
S. Duty of claimant to choose between Sections 163A and 166
In New India Assurance Co. Ltd. v. Bhavani Nanji Pachanbhai Patel131
it was
held that remedies under section 163A and 166 being independent of each other,
the claimant must elect or opt for either of them. Compensation under section
163A is final in nature and cannot be altered or varied in any other proceedings.
In Kamla Devi v. Ram Kishan132
the claim petition was filed under section 166
and award under section 140 had been passed, the application for amendment to
covert petition from section 166 to section 163A was not held permissible, since
after passing of award it is no longer open to the claimant to such conversion.
In Himachal Road Transport Corporation v. Baldev Kumar Nayyer133
it was
laid down that the claims tribunal cannot treat a petition under section 166 as one
under section 163 by restricting income of injured/ deceased at Rs. 40,000.00 per
annum when deceased/injured was earning more than Rs. 40,000/- per annum.
In National Insurance Co. Ltd. v. Indu Saraswat134
it was held that claim
application under section 163A in respect of a person whose income was more
than Rs. 40,000/- per annum cannot become maintainable by reducing the claim
to the limit provided in the section because the section has been inserted with the
object of giving relief to a section of public having income upto a particular
level.
131
New India Assurance Co. Ltd. v. Bhavani Nanji Pachanbhai Patel, 2007 ACJ 2067 132 Kamla Devi v. Ram Kishan, 2009 (1) ACC 920 133 Himachal Road Transport Corporation v. Baldev Kumar Nayyer, 2007 ACJ 678 134 National Insurance Co. Ltd. v. Indu Saraswat, 2009 ACJ 2413 (Raj.).
154
T. Review
State Government may, by notification in the Official Gazette, constitute one or
more Motor Accident Claims Tribunal (hereafter in this Chapter referred to as
Claims tribunal) for such area as may be specified in the notification for the
purpose of adjudicating upon claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons arising out of the use of motor
vehicles, or damages to any property of a third party so arising, or both.
A Claims Tribunal shall consist of such number of members as the State
Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof. A person
shall not be qualified for appointment as a member of a Claims Tribunal unless
he is or has been a Judge of a High Court, or is or has been a District Judge or is
qualified for appointment as a High Court Judge or as a District Judge.
Claims Tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services,135
it was
held that technically and grammatically speaking, tribunal may not be a civil
court, but it has all the trappings of court since it passes an award which has all
the ingredients of a judgement as known under civil jurisprudence.
An application for compensation arising out of an accident of the nature
specified in sub-section (1) of section 165 may be made by the person who has
sustained the injury or by the owner of the property or where death has resulted
from the accident, by all or any of the legal representatives of the deceased or by
135 Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 (3) ACC 300 (Bom)
FB
155
any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be136
.
In Sanno Devi v. Balram,137
it was held that the jurisdiction of a tribunal
depends essentially on the fact whether there had been any use of motor vehicle
and once it has been established, tribunal’s jurisdiction cannot be held ousted on
findings that it is negligence of other joint tortfeasor and not of the motor vehicle
in question.
The claimant can file an application within the jurisdiction of claims tribunal (1)
where the accident occurred, or (2) before the tribunal within local limits of
whose jurisdiction, claimant resides or carries on his business, or (3) within local
limits of whose jurisdiction, the defendant resides or carries on his business. In
Kusum Devi v. Dungaram,138
it was held that in view of the word “or” which
separates three clauses, the claimant can choose either of the three options and as
per legislative intent, there are three options implied, whereby he has been given
a right to pick one of three places for exercising his option.
Section 168 of the Act provides that the Claims Tribunal shall deliver the copies
of the award to the parties within fifteen days of the award and that the person
against whom the award is made shall deposit the amount awarded within thirty
days of announcement of the award.
The Claims Tribunal shall have all the powers of a Civil Court for the purpose of
taking evidence on oath and of enforcing the attendance of witnesses and
compelling the discovery and production of documents and material objects and
for such other purposes as may be prescribed. Further, the Claims Tribunal shall
136 The Motor Vehicles Act, 1988, Section 166(1) 137 Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB 138
Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.).
156
be deemed to be a Civil Court for all the purposes of section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973139
.
Section 173 makes provision for appeal to High Court by the aggrieved against
the orders of Claims Tribunal and where the person aggrieved is the person who
has to pay the compensation such person shall deposit 50 percent of the amount
awarded or as directed by the High Court.
Section 176 of the Act confers upon the State Government power to make rules
for carrying into effect the various provisions including Sections 165 to 173.
139 The Motor Vehicles Act, 1988, Section 169 (2)
