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Claims Under MV Act PDF
Claims Under MV Act PDF
CHAPTER: III
CHAPTER: III
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
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.
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.
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.
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.
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.
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
Delhi High Court in New Asiatic Transport (P) Co. Ltd. v. Manohar
Lal11held 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.
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
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.
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.
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.
Claims tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services20it 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.
“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:
21
Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal, (1962) 2 SCR 339
22
New English Dictionary, Vol. II, p. 1090, 1091
108
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.
In New India Assurance Co. Ltd v. Ganga Devi23it 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.
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.
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
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 Sharma30it 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
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
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.
3. Copy of the MLC/Post Mortem Report/Death Report as the case may be.
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).
35
Ibid.
115
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.
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 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.
39
Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78
118
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.
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
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.
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.
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.
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.
50
Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.).
51
Mantoo Sarkar v. Oriental Insurance Co. Ltd, 2009 ACJ 564
124
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.
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
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.
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
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
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
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.
65
The Motor Vehicles Act, 1988, Section 167
66
New India Assurance Co. Ltd. v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB
130
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.
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 Chakraborty71it 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. Lakshmi72it 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.
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.
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
In Allanoor v. Dilip Singh81case 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.
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 Kumar83s 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.
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
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.
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.
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.
86
The Motor Vehicles Act, 1988, Section 169(1)
87
Ibid. Section 169(2)
88
Ibid. Section 169(3)
136
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
109
Ibid., Section 172 (1)
110
Ibid., Section 172 (2)
111
Ibid., Section 172 (3)
145
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 Kaur116that 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.
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.
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
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
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
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.
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
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;
(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
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
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
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 to be Adopted
Age of the Victim (in In regard to Accident In regard to Accident
Years) prior to 14.11.1994 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
In New India Assurance Co. Ltd. v. Bhavani Nanji Pachanbhai Patel131it 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 National Insurance Co. Ltd. v. Indu Saraswat134it 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
Claims Tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services,135it 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.
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.
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,138it 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)