SUDESH SHARMA Vs. PRAHALAD KUMAR GARG

JUDGEMENT

(1.) The appeal is for enhancement of claim for compensation filed in a petition under Section 163-A of the Motor Vehicles Act. It was a case of the deceased who was a passenger in a car when the driver drove against a tree and killed the passenger. The petition was filed under Section 163-A of the MV Act and the evidence was that the income of the deceased was more than Rs. 40,000/- per year. An application has been filed before this court seeking for amendment of the claim petition under Section 166 of the MV Act. The objection taken by the insurer is that the application has been filed more than 12 years from the date of the filing of the petition and, therefore, it ought not to be accepted. An application for amendment in motor accident case which is a welfare legislation could be resisted where there is a bar of limitation or there is a waiver of some rights. Section 163-A is a statutory innovation brought through an amendment in the year 1994 to allow for a claim for compensation on strict liability basis, without having to prove rashness and negligence of any other person involving the injured/or representative of the deceased. This is intended to secure benefit to a class of persons who are economically in a lower strata and as a measure of welfare to see that compensation is not completely deprived by inability to prove rashness and negligence. All that is required is the death or injury should have resulted by the use of a motor vehicle and if there was an insurer that was liable for such an injury under the terms of the policy, the minimum of what is required under Schedule-II shall be paid by the insurer.

(2.) It has been laid down that it shall be impermissible for a person whose income is more than Rs. 40,000/- but deliberately scales down the income to be less than Rs. 40,000/- to bring it within the four corners of Section 163-A. Such a petition is barred in law as held in Deepal Girish Bhai Soni & others Versus United India Insurance Company Limited, 2004 ACJ 934. In this case if the claim is made under Section 163-A and an independent claim is made over again under Section 166, then it could be stated that such a petition would be barred. If, on the other hand, a claim is made under Section 163- A which is found to be wrong as per law and the appropriate claim would be only under Section 166, the claimant indeed takes up the additional burden of what does not exist under Section 163-A. It is another way of saying that the petitioner subjects himself to more rigorous appraisal regarding the issue of negligence and renders his claim open to rejection for absence of proof of negligence. He does not therefore improve the situation except when he is able to prove the negligence of the driver, in which case the scales of compensation get to be different which are driven through precedents. Several of heads of claims for compensation are set out in the form prescribed under the Motor Accident Claims Rules and the method of assessment to compensation is set through several pronouncements and particularly on the lines drawn by the decision of the Supreme Court in Sarla Verma Versus Delhi Transport Corporation and another, 2009 6 SCC 121and modified later with reference to the issues relating to loss of consortium and loss of love and affection in the manner suggested in the decision in Rajesh Versus Rajbir Singh, 2013 9 SCC 54. There have been some clarifications also with respect to prospect of increase which were originally understood as possible only in respect of settled employments but other decisions following Sarla Verma have explained that this prospect could be applied even for selfemployments and employments in private institutions.

(3.) In this case by an amendment, the Insurance Company cannot be said to be prejudiced, for, as regards the Insurance Company, the permissible defences are always be confined to what is set forth under Section 149 of the Motor Vehicles Act. It shall also become possible apart from the defences available under Section 149 to plead jurisdictional issues regarding maintainability of petitions or non-involvement of vehicles. Beyond this, there shall be no other objection which the Insurance Company could be heard of. A conversion of an application under Section 163-A to 166 cannot be resisted by an insurer on a plea that such a conversion would result in undertaking a larger slice of liability if the negligence is established. The Insurance Company is in business only to pay and not to make profit. If there shall be an increase in liability, so it shall be under the scheme of the Act. I, therefore, reject a plea on behalf of the insurer that conversion shall not be made. The objection is also on the ground that the petition is belated. We have come by sorry spectacle in almost every High Court in India of our inability to tackle cases within any reasonable time. If there is a delay, it is as much an institutional delay than how a party contributes to it. I will not, therefore, let even a delay as prevailing to assist the insurer to scale down its liability. The application in CM No.6203-CII of 2014 for conversion of the petition under Section 163-A to 166 is allowed.