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Published : April 11, 2014 | Author : hanifmulia
Category : Insurance / Accident Claim | Total Views : 4016 | Rating :

  
hanifmulia
Want to learn so many things
 

Motor Accident - Claim Petition
Reference Manual - Updated upto March 2014

While deciding a claim petition, preferred under the Motor Vehicles Act, 1988 (hereinafter referred as 'the Act'), more often then not, Ld. Judges of the Tribunals are vexed with such questions that it becomes difficult for them to come to a certain conclusion, main reasons for such vexation are:-

Non availability of judgments on certain points,
If judgments are available on some points, they run in different directions,
Lack of reference book to decide, as to whether the insurance policy is 'Act Policy' (Statutory Policy) or 'Comprehensive Policy' (Package Policy).

By way of this Manual, an attempt is made to help Judicial Officers to decide claim petitions easily, and more particularly, in accordance with the law. Hon'ble Apex Court and Hon'ble High Courts have laid down principles/guidelines to decide claim petitions, which will be discussed herein-below.

3. Requirement for the police to forward to the Claims Tribunal “Accident Information Report” (AIR) which the Tribunal has to treat as an application for compensation:-

The Bench comprising of Three Hon'ble Lordships of Hon'ble Apex Court in the case of Jai Prakash v/s National Insurance Com. Ltd, reported in 2010 (2) GLR 1787 (SC) has given following directions to Police and Tribunals.

A) Directions to the Police Authorities :
The Director General of Police of each State is directed to instruct all police stations in his State to comply with the provisions of Sec. 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations :

(i) Accident Information Report ('AIR', for short) in Form No. 54 of the Central Motor Vehicles Rules, 1989 shall be submitted by the police (Station House Officer) to the jurisdictional Motor Accidents Claims Tribunal, within 30 days of the registration of the F.I.R. In addition to the particulars required to be furnished in Form No.54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal :
(i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the F.I.R., site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and post mortem report (in case of death) or the injured or dependent family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, a copy of the AIR with annexures thereto shall be furnished to the Insurance Company concerned to enable the insurer to process the claim.
The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

B) Directions to the Claims Tribunals :
The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Sec. 158(6) of the Act as applications for compensation under Sec. 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary registers, forms and other support is extended to the Tribunal to give effect to Sec. 166(4) of the Act.

For complying with Sec. 166(4) of the Act, the jurisdictional Motor Accidents Claims Tribunals shall initiate the following steps :
(a) The Tribunal shall maintain an institution register for recording the AIRs. which are received from the Station House Officers of the police stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the register.
(b) The Tribunal shall list the AIRs. as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of the victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once, the claimant(s) appear, the miscellaneous application shall be converted to claim petition. Where a claimant(s) file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any "police officer-Advocate-doctor" nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categorise the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time-frame not exceeding six months from the date of registration of the claim petition.
(g) The Insurance Companies shall be directed to deposit the admitted amount or the amount determined, with the Claims Tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in a fixed deposit and disbursed as per the directions contained in Kerala S.R.T.C. v. Susamma Thomas, 1994 (2) SCC 176.
(h) As the proceeding initiated in pursuance of Secs. 158(6) and 166(4) of the Act are different in nature from an application by the victims(s) under Sec. 166(1) of the Act, Sec. 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependants of the deceased victim and in determining the quantum of compensation.

C) Direction with respect to investment:-
In para No. 28 & 29 of Jai Prakash's case (supra) it has been held as under:-
“28. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the Insurance Companies in consultation with Life Insurance Corporation of India, State Bank of India or any other Nationalised Banks. One proposal is for formulation of a scheme in consultation with the Nationalised Banks under which the compensation is kept in a fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for the claimants having to approach either the Court or their Counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilised only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family”.

29. We extract below the particulars of a special scheme offered by a Nationalised Bank at the instance of the Delhi High Court :
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the savings account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the F.D.R.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without the permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without the permission of the Court.
(ix) The claimant can operate the Savings Bank account from the nearest branch of U.CO. Bank and on the request of the claimant, the Bank shall provide the said facility”.

4. How to decide a claim petition wherein Fatal Injuries were sustained by the deceased:-
4.1 In Sarla Verma v/s Delhi Transport Corporation, reported in 2009 ACJ 1298 (SC) = AIR 2009 SC 3104 guidelines for determination of multiplier, future prospects of the deceased, deduction towards personal and living expenditures are issued. The ratio laid down in the case of Sarla Verma (supra) was considered by the Three Hon'ble Judges of the Hon'ble Apex Court in the case of Reshma Kumari v/s Madan Mohan, reported in 2013 ACJ 1253 (SC) and it is held that ratio laid down in the case of Saral Verma (supra) should be followed by the all the Tribunals. The principles laid down in the case of Srala Veram and Reshma Kumari (supra) qua determination of multiplier, future prospects of the deceased, deduction towards personal and living expenditures are as under:-
a) Choice of Multiplier:-

Age of the Deceased

Age of the Deceased Multiplier
Upto 15 years 15
15 to 20 years 18
21 to 25 years 18
26 to 30 years 17
31 to 35 years 16
36 to 40 years 15
41 to 45 years 14
46 to 50 years 13
51 to 55 years 11
56 to 60 years 9
61 to 65 years 7
Above 65 years 5

b) What should be the multiplier in the case of Fatal injury case, where deceased was unmarried son/daughter:-
There are difference of opinion as to what should be the multiplier in the case of fatal injury case, where deceased was unmarried son/daughter. In Shyam Singh, reported in 2011 (7) SCC 65 = 2011 ACJ 1990 (SC), it has been held that Multiplier in the case of death of unmarried son/daughter, proper multiplier should be arrived at by assessing average age of parents of the deceased. But different views are taken by Hon'ble Apex Court in the cases of P. S. Somnathan v/s Dist. Insurance Officer, reported in 2011 ACJ 737 (SC), Amrit Bhanu Shali v/s NI Com., reported in 2012 ACJ 2002 (SC), Saktidevi v/s NI Com, reported in 2010 (14) SCC 575 and Reshma Kumari v/s Madan Mohan, reported in 2013 ACJ 1253 (SC). In the above referred cases it has been held that in the case of death of unmarried son/daughter, multiplier should be a applied on the basis of age of the deceased and not on the basis of average age of the parents of the deceased.

c) Future Prospect of Deceased:-
In para No.11 of the Srala Verama's (supra) judgment it is held as under:-
“In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects. where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances”.

In the case of Sanjay Verma v/s Haryana Roadways, reported in 2014 (3) SCC 210, a three-judges Bench of Hon'ble Apex court, after considering the ratio laid down in the case of Reshma Kumari(supra) has held in para No.15 as under:-

15:- Answering the above reference a three Judge Bench of this Court in Reshma Kumari v/s Madan Mohan (2013) 9 SCC 65 (para 36) reiterated the view taken in Sarla Verma (supra) to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression “exceptional and extraordinary circumstances” is not capable of any precise definition, in Shakti Devi v/s New India Insurance Company Limited (2010) 14 SCC 575 there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death.

Even in para No.13 of the above referred judgment is observed as under:-
“13. The view taken in Santosh Devi (supra) has been reiterated by a Bench of three Judges in Rajesh and Others vs. Rajbir Singh and Others[(2013) 9 SCC 54] by holding as follows :
“8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the selfe-mployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
9. In Sarla Verma case, it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.”

From the above referred observations, it becomes clear that where the deceased had a permanent job and in other cases, where it is proved that there was scope for the increase in the income of the deceased, addition, varying from 50% to 15% may be made, depending on the age of the deceased. Addition should be 50% and if the age of the deceased was between 40 to 50 years, addition should be only 30% and an addition of 15% in the case where the deceased was between the age group of 50 to 60 years.

It is also required to be born in mind that House Rent Allowance, Medical Allowance, Dearness Allowance, Dearness Pay, Employees Provident Fund, Government Insurance Scheme, General Provident Fund, C.C.A. etc should be treated as part and parcel of the income of the deceased, while calculating income of the deceased for the purpose of computing compensation. Reference may be made to ratio laid down by Hon'ble Apex Court in the case of Sunil Sharma v/s Bachitar Singh, reported in 2011 ACJ 1441 (SC) also see Vimal Kanwar v/s Kishore Dan, reported in 2013 ACJ 1441.

4.4 Now, the question is, when a departure from the above referred guideline should be made? In this regards, reference is required to be made to the ratio laid down in the case of K. R. Madhusudhan v/s Administrative Officer, reported in AIR 2011 SC 979. In the said case deceased was aged 53 years and was working as Senior Assistant in Karnataka Electricity Board. As per Board Agreement, after completion of five years, pay revision was compulsory and evidence was produced by the claimants showing that if deceased would have been alive he would have reached gross salary of Rs. 20,000/- p.m. Hence, even though deceased was above 50 years of age, it is held that claimants are entitled to compensation calculated on the basis of such increased income.

d) Deduction towards Personal and Living Expenditures:-

4.5 In Para No.14 of Sarla Veram's case (supra) it is held as under:-
“Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six”.
4.6 In Para No.14 of Sarla Veram's case (supra) it is held as under:-
“Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically”.

Meaning thereby, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependant family members is less than 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. And in the cases where deceased was unmarried son/daughter, the deduction towards personal and living expenses of the deceased, should be one-half.

4.7.1. It has been further held in Para No.15 of Sarla Verma's case (supra) that:-
“Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third”.

4.8 Plain reading of above referred observations, makes it clear that, unless, it is proved that father of the deceased was not having independent income, father of the deceased cannot be treated as dependant. Same analogy applies in the cases of where claim petition is preferred by the sibling/s of deceased who was/were unmarried brother/sister of such deceased. But if, it is proved that father of the deceased was not having independent income, father of the deceased can be treated as dependant. In the cases where claim petition is preferred by the mother, sibling/s who were solely dependant on the income of the of deceased, in such cases, one-third (1/3rd) may be deducted towards personal and living expenses of deceased.

4.9 In Srala Veram (supra) it has been held in par 26 that:-
“In addition, the claimants will be entitled to a sum of Rs. 5,000/- under the head of 'loss of estate' and Rs. 5,000/- towards funeral expenses. The widow will be entitled to Rs. 10,000/- as loss of consortium'.

4.10 But a bench of Three Hon'ble Judges of the Hon'ble Apex Court in the case of Rajesh v/s Rajbir Singh , reported in 2013 ACJ 1403 has held that claimants will be entitled to a sum of Rs. 1,00,000/- under the head of loss of care and guidance for minor children, Rs. 25,000/- towards funeral expenses and the widow will be entitled to Rs. 1,00,000/- as loss of consortium.

5. How to decide a claim petition wherein claimant has sustained Injuries:-
5.1 If the claim petition is preferred u/s 166 of the Act, in injury cases, choice of multiplier remains the same, as in the case of fatal injuries cases. Deductions towards personal and living expenditures are not made in injuries case. To determine the future loss of income, ratio laid down in the case of Raj Kumar v/s Ajay Kumar, reported in 2012 ACJ 1 = 2011 (1) SCC 343 is required to be followed. In paragraph 6 of the said decision, the various elements of compensation are enumerated as under:-
"Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
Loss of expectation of life (shortening of normal longevity)".

5.2 Compensation in the case, where an injured victim is Government Servant/Salaried person, whose salary has increased after the accident and has not sustained any financial loss:-
The concept of awarding compensation is :- that no amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury" so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

Hon'ble Apex Court in the case of Raj Kumar v/s Ajay Kumar, reported in 2011 ACJ 1 = 2011 (1) SCC 343, has held in para No.10 as under:-
“… On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand...”

5.2.3 Reference is also required to be made to ratio laid down by Hon'ble Gujarat High Court in the case of Gurdipsinh s/o Bisensingh Sadhu vs. Chauhan Bhupendrakumar Udesing, reported in 1980 GLR 221. In the said judgment, it is held that the Court can make rough estimate about loss of earning capacity in the light of the facts and circumstances and the available data of medical evidence on record. In the said case, Hon'ble High Court had estimated the loss of earning capacity at 25% of actual income and claimant was awarded Rs.45,000, though there was no immediate reduction in his salary as a Technical Assistant in O.N.G.C. Relying upon the said decision, Hon'ble Division bench of Gujarat High Court has held in the case of Mohanbhai Gemabhai vs. Balubhai Savjibhai, reported in 1993(1) GLR 249 (para 20) that:-

“No doubt, it is imperative for the Tribunal to consider the facts and circumstances, and the medical evidence, showing the extent of physical impairment. If no precise and direct evidence showing the percentage or extent of the disablement is spelt out, the Tribunal can make rough and reasonable estimate of loss of earning capacity so as to determine the just amount of compensation under the head of 'prospective economic loss'.”

Even the observations of House of Lords, reported in 1912 AC 496 are very relevant and same can be taken into consideration. Reference required to be made to the ratio laid down in 2013 ACJ 79 – para 20.

From the above referred ratios of Hon'ble Apex Court and Hon'ble Gujarat High Court, it becomes clear that Tribunal can grant compensation to those injured persons who have not suffered any financial loss or whose salary income have actually increased after the date of accident and such compensation should not be under the head of 'loss of Future Earnings' but under the head of 'Loss off Amenities' Such claimants are entitled for such amount of compensation, calculated on the basis of 1/4th of the net salary income, which they were getting at the time of accident.

5.3-A What should be reasonable amount of compensation in the cases where minor has sustained serious injuries in vehicular accident:-
Hon'ble Apex Court in the case of Mallikarjun v/s Divisional Manager, reported in 2013 ACJ 2445. Wherein in para No.12 it is held has under:-
“12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents.”

5.3 Determination of permanent Partial Disablement of the claimant:-
In the cases where injured had sustained more that one fracture injuries, it may appear to Tribunal that disability certificate issued by the Doctor depicts the higher value of disability than the injured claimant has actually sustained. In such situation, Ld. Judge of the Tribunal finds it difficult to arrive at the exact amount of disability sustained by the injured claimant. Normally, Doctors issue disability certificate on the basis of formula invented by Dr. Henry H. Kessler in his book titled as 'Disability – Determination & Evaluation'. For determination of disability in such cases, Doctors apply formula evolved by Dr. Henry H. Kessler. Said Formula reads as under:-

A { [B (100-A)] / 100}

In the said formula, 'A' stands for higher value of partial disablement, whereas 'B' stands for lower value of partial disablement. Doctors normally, take disadvantage of the comments given on page No.49 of the above referred book. Careful reading of the said comments, leads to the conclusion that when injured victim/claimant has sustained injuries, which resulted into two or more fractures on two different limbs of the body, then in such situation disablement in relation to whole body may be assessed as per the above referred formula. But above referred formula does not apply in the cases where claimant has sustained two or more fractures on the same limb i.e one fracture on right hand and second on left hand or one fracture on right lag and second on the left leg. It is also mentioned in the said book that lower part of the body i.e. legs or upper part of body i.e. two hands are considered as one limb of the body (lower limb or upper limb) and when victim/claimant has sustained fractures on the one particular limb then in such case, disablement in relation to whole may be assessed as one half of the permanent partial disablement assessed by the doctor. Say for an example, claimant has sustained one fracture injury on right leg and doctor has assessed disability in relation to right lower limb as 27% and second fracture injury on left leg and doctor has assessed disability in relation to left lower limb as 7% and if, we apply simple principle in the facts of the above referred example, the disablement in relation to whole body, comes to 17%. (27% in relation to right lower limb plus permanent partial impairment of 7% in relation to left lower limb, divided by two [27% 7% ] / 2 ). But, if we apply the above referred formula, disablement in relation to whole body comes to 32.11%. { 27 [7 (100 – 27) / 100] }. From the above referred discussion, it becomes clear that when victim/claimant has sustained more than one fractures on one limb and when victim/claimant has sustained more than one fractures on two limbs, assessment of disablement in relation to whole body is required to be assessed by applying different formulas. Book written by Dr. Henry H. Kessler, namely, 'Disability – Determination & Evaluation' is considered to be the authority as far as calculation of permanent partial disablement is concerned. However, it is to be noted that Dr. Henry H. Kessler has also mentioned in his book that there is always variation of plus/minus 5%, in the permanent partial disablement assessed by the doctor. Therefore, while deciding permanent partial impairment of the injured claimant, above referred facts are required to be remembered.

Reference may also be made to 'Manual For Doctors To Evaluate Permanent Physical Impairment', which is based on expert group meeting on disability evaluation and national seminar on disability evaluation and dissemination, G.G.H.S.- W.H.O.- A.I.I.M.S., New Delhi -1981. Reference may also be made to 'Disability Guidelines issued by Office of Chief Commissioner for Persons with Disabilities, dated 1st June 2001. Guidelines issued in the above referred reports are as under:-

5.3.3.1. Guidelines for Evaluation of Permanent Physical Impairment in Upper Limbs:-
1. The estimation of permanent impairment depends upon the measurement of functional impairment, and is not expression of a personal opinion.
2. The estimation and measurement must be made when the clinical condition is fixed and unchangeable.
3. The upper extremity is divided into two component parts the arm component and the hand component.
4. Measurement of the loss of function of arm component consists in measuring the loss of motion, muscle strength an co-ordinated activities.
5. Measurement of the loss of function of hand component consists in determining the Prehension, Sensation & Strength. For estimation of Prehension : Opposition, lateral pinch, Cylindrical grasp, spherical grasp and hook grasp have to be assessed as shown in the column of “prehension” component in the proforma.
6. The impairment of the entire extremity depends on the combination of the functional impairment of both components.

ARM COMPONENT:-
Total value of arm component is 90%.
Principles of Evaluation of range of motion of joints
1. The value for maximum R.O.M. in the arm component is 90%.
2. Each of the three joints of the arm is weighted equally (30%).
Example
A. fracture of the right shoulder joint may affect range of motion so that active adduction is 90degree. The left shoulder exhibits a range of active abduction of 180degree. Hence there is loss of 50% of abduction movement of the right shoulder. The percentage loss of arm component in the shoulder is 50 x 0.03 or 15% loss of motion for the arm component.
If more than one joint is involved, same method is applied, and the losses in each of the affected joints are added.
Say for example:-
Loss of abduction of the shoulder = 60%
Loss of extension of the wrist = 40%
Then, loss of range of motion for the
arm = (60 x 0.30) (40 x 0.30) = 30%

Principles of Evaluation of strength of muscles:-
1. Strength of muscles can be tested by manual testing like 0-5 grading.
2. Manual muscle gradings can be given percentages like
3. – 100%
4. – 80%
5. – 60%
6. – 40%
7. – 20%
8. – 0%
9. The mean percentage of muscle strength loss is multiplied by 0.30.
If there has been a loss of muscle strength of more than one joint, the values are added as has been described for loss of range of motion.

Principles of Evaluation of co-ordinated activities:-
1. The total value for co-ordinated activities is 90%.
2. Ten different co-ordinated activities are to be tested as given in the Proforma.
3. Each activity has a value of 9%.

Combining values for the Arm Component:-
1. The value of loss of function of arm component is obtained by combining the values of range of movement, muscle strength & co-ordinated activities, using the combining formula
A b(90-a)/90
Where 'A' = higher value & 'B' = lower value
Example
Let us assume that an individual with a fracture of the right shoulder joint has in addition to 16.5% loss of motion of his arm, 8.3% loss of strength of muscles, and 5% loss of co-ordination. We combine these values as :
Range of motion : 16.5% 16.5 8.3(90-16.5)/90 =23.3 %
Strength of Muscles : 8.3%
Co-ordination : 5% 23.3 5(90-23.3)/90 =27.0%
So total value of arm component = 27.0%

HAND COMPONENT:-
Total value of hand component is 90%.
The functional impairment of hand is expressed as loss of prehension, loss of sensation, loss of strength.
Principles of Evaluation of Prehension :-
Total value of Prehension is 30%. It includes :
(A) Opposition (8%). Tested against
Index finger (2%). Middle finger (2%)
Ring finger (2%) & Little finger (2%)
(B) Lateral Pinch (5%). Tested by asking the patient to hold a key.
(C) Cylindrical Grasp (6%). Tested for
(D) Large object of 4 inch size (3%)
(E) Small object of 1 inch size (3%)
(F) Spherical Grasp (6%). Tested for
(G) Large object 4 inch size (3%)
(H) Small object 1 inch size (3%)
(I) Hook Grasp (5%). Tested by asking the patient to lift a bag.

Principles of Evaluation of Sensations:-
Total value of sensation is 30%. It includes :
1. Grip Strength (20%)
2. Pinch Strength (10%)
3. Strength will be tested with hand dynamo-meter or by clinical method (Grip Method).
10% additional weightage to be given to the following factors :
1. Infection
2. Deformity
3. Malaignment
4. Contractures
5. Cosmetic appearance
6. Abnormal Mobility
7. Dominant Extremity (4%)

Combining values of the hand component:-
The final value of loss of function of hand component is obtained by summing up values of loss of prehension, sensation and strength.

Combining Values for the Extremity:-
Values of impairment of arm component and impairment of hand component are combined by using the combining formula.
Example
Impairment of the arm = 27% 64 27(90-64)/90=71.8%
Impairment of the hand = 64%

5.3.3.2. Guidelines for Evaluation of Permanent Physical Impairment in Lower Limbs:-
The lower extremity is divided into two components: Mobility component and Stability component.

MOBILITY COMPONENT:-
Total value of mobility component is 90%. It includes range of movement and muscle strength.

Principles of Evaluation of Range of Movement:-

1. The value of maximum range of movement in the mobility component is 90%.
Each of the three joints i.e. hip, knee, foot-ankle component, is weighted equally – 0.30.

Example
A Fracture of the right hip joint may affect range of motion so that active abduction is 27degree. The lift hip exhibits a range of active abduction of 54degree. Hence, there is loss of 50% of abduction movement of the right hip. The percentage loss of mobility component in the hip is 50, 0.30 or 15% loss of motion for the mobility component.

If more than one joint is involved, same method is applied and the losses in each of the affected joints are added.
Example
Loss of abduction of the hip = 60%
Loss of extension of the knee = 40%
Loss of range of motion for the mobility component
= (60 x 0.30) (40 x 0.30) = 30%.

Principles of Evaluation of Muscle Strength:-
1. The value for maximum muscle strength in the leg is 90%.
2. Strength of muscles can be tested by manual testing like 0-5 grading.
3. Manual muscle gradings can be given percentages like
Grade 0 = 100%
Grade 1= 80%
Grade 2= 60%
Grade 3= 40%
Grade 4= 20%
Grade 5= 0%
4. Mean percentage of muscle strength loss is multiplied by 0.30.
5. If there has been a loss of muscle strength of more than one joint, the values are added as has been described for loss of range of motion.

Combining Values for the Mobility Component:-
Let us assume that the individual with a fracture of the right hip joint has in addition to 16% loss of motion 8% loss of strength of muscles.
Combing Values:-
Motion 16%, Strength 8%
= 16 8(90-16)/90 =22.6%
Where 'a' = higher value, 'b' = lower value.

STABILITY COMPONENT:-
1. Total value of stability component is 90%
2. It is tested by 2 methods
3. Based on scale method.
4. Based on clinical method
Three different readings (in kilograms) are taken measuring the total body weight (W), scale ‘A’ reading and scale ‘B’ reading. The final value is obtained by the formula :
Difference in body weight divided by Total body weight, multiplied by 90.
In the clinical method of evaluation nine different activities are to be tested as given in the proforma. Each activity has a value of ten percent (10%).

5.3.3.4. Guidelines for Evaluation of Permanent Physical Impairment of Trunk (Spine):-
The local effects of lesions of spine can be divided into traumatic and non-traumatic lesions.

TRAUMATIC LESIONS
Cervical Spine Fracture
Percent Whole body Permanent Physical Impairment and Loss of Physical Function to Whole Body.

A. Vertebral compression 25%, one or two vertebral adjacent bodies, no fragmentation, no involvement of posterior elements, no nerve root involvement, moderate neck rigidity and persistent soreness.
B. Posterior elements with X-ray evidence of moderate partial dislocation.
(a) No nerve root involvement, healed- 15
(b) With persistent pain, with mild motor and sensory Manifestations- 25
(c) With fusion, healed no permanent motor or sensory changes- 25
C. Severe dislocation, fair to good reduction with surgical fusion
(a) No residual motor or sensory changes- 25
(b) Poor reduction with fusion, persistent radicular pain, motor involvement, only slight weakness and numbness -35
(c) Same as (b) with partial paralysis, determine additional rating for loss of use of extremities and sphincters.

Cervical Intervertebral Disc:-

1. Operative, successful removal of disc, with relief of acute pain, no fusion, no neurological residual- 10
2. Same as (1) with neurological manifestations, persistent pain, numbness, weakness in fingers- 20

Thoracic and Dorsolumbar Spine Fracture:-
Percent Whole body Permanent Physical Impairment and Loss of Physical Function to Whole Body
A. Compression 25%, involving one or two vertebral bodies, mild, no fragmentation, healed no neurological manifestations.-10
B. Compression 50%, with involvement posterior elements, healed, no neurological manifestations, persistent pain, fusion indicated.- 20
C. Same as (B) with fusion, pain only on heavy use of back. -20
D. Total paraplegia. -100
E. Posterior elements, partial paralysis with or without fusion, should be rated for loss of use of extremities and sphincters.

Low Lumbar:-
1. Fracture
2. Vertebral compression 25%, one or two adjacent vertebral bodies, little or fragmentation, no definite pattern or neurological changes.-15
3. Compression with fragmentation posterior elements, persistent pain, weakness and stiffness, healed, no fusion, no lifting over 25 pounds - 40
4. Same as (B), healed with fusion, mild pain -20
5. Same as (B), nerve root involvement to lower extermities, determine additional rating for loss of industrial function to extremities
6. Same as (c), with fragmentation of posterior elements, with persistent pain after fusion, no neurologic findings - 30
7. Same as (c), with nerve root involvement to lower extremities, rate with functional loss to extremities
8. Total paraplegia - 100
9. Posterior elements, partial paralysis with or with-out fusion, should be rated for loss of use of extremities and sphincters.
@. Neurogenic Low Back Pain – Disc Injury

A. Periodic acute episodes with acute pain and persistent body list, tests for sciatic pain positive, temporary recovery 5 to 8 weeks - 50
B. Surgical excision of disc, no fusion, good results, no persistent sciatic pain - 10
C. Surgical excision of disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities - 20
D. Surgical excision of disc with fusion, activities of lifting moderately modified - 15
E. Surgical excision of disc with fusion, persistent pain and stiffness aggravated by heavy lifting, necessitating modification of all activities requiring heavy lifting – 25

Non-Traumatic Lesions:-
Scoliosis
The whole Spine has been given rating of 100% and region wise the following percentages are given:
Dorsal Spine - 50%
Lumbar Spine – 30%
Cervical Spine – 20%

Kobb’s method for measurement of angle of curve in standing position is to be used. The curves have been divided into three sub groups:

Particulars Cervical Spine Thoracic spine Lumber Spine
30degree (Mild) 2.00% 5.00% 6.00%
30-60degree (Moderate) 3.00% 15.00% 12.00%
Above 60degree (Severe) 5.00% 25.00% 33.00%

In the curves ranging above 60 0, cardio-pulmonary complications are to be graded separately. The junctional curves are to be given that rating depending upon level of apex of curve. For example, if apex of dorso-lumbar curve falls in the dorsal spine the curve can be taken as a dorsal curve. When the scoliosis is adequately compensated, 5% reduction is to be given from final rating (for all assessment primary curves are considered for rating).

Kyphosis
The same total rating (100%) as that suggested for scoliosis is to be given for kyphosis. Region-wise percentages of physical impairment are:
Dorsal Spine – 50%
Cervical Spine – 30%
Lumbar Spine – 20%

For dorsal spine the following further gradings are :
Less than 20degree – 10%
21degree – 40degree – 15%
41degree – 60degree – 20%
Above 60degree – 25%

For kyphosis of lumbar and cervical spine 5% and 7% respectively have been allocated.

Paralysis of Flexors & Extensors of Dorsal and Lumbar Spine:-
The motor power of these muscles to be grouped as follows :
Normal -
Weak 5%
Paralysed 10%

Paralysis of Muscles of Cervical Spine:-

Particulars Normal Weak Paralysed
Flexors 0 5.00% 10.00%
Extensors 0 5.00% 10.00%
Rotation 0 5.00% 10.00%
Side Bending 0 5.00% 10.00%

Miscellaneous:-
Those conditions of the spine which cause stiffness and part etc., are rated as follows :
A. Subjective symptoms of pain, No involuntary muscle spasm, Not substantiated by demonstrable structural pathology. 0
B. Pain, Persistent muscle spasm and stiffness of spine, substantiated by demonstrable and radiological changes. 10%
C. Same as B, with moderate radiological changes. 15%
D. Same as B, with severe radiological changes involving any one of the region of spine (cervical, dorsal or lumbar) 20%
E. Same as D, involving whole spine 30%

In Kypho-scoliosis, both curves to be assessed separately and then percentage of disability to be summed.

5.3.3.5. Guidelines for Evaluation of Permanent Physical Impairment in Amputees:-
Basic Guidelines:-

1. In case of multiple amputees, if the total sum of percentage permanent physical impairment is above 100%, it should be taken as 100%.
2. Amputation at any level with uncorrectable inability to wear and use prosthesis, should be given 100% permanent physical impairment.
3. In case of amputation in more than one limb percentage of each limb is counted and another 10% will be added, but when only toes or fingers are involved only another 5% will be added.
4. Any complication in form of stiffness, neuroma, infection etc. has to be given a total of 10% additional weightage.
5. Dominant upper limb has been given 4% extra percentage.

Upper Limb Amputation:-

Sr. No Particulars of Amputation Permanent Partial Impairment, in %
1 Fore-quarter 100
2 Shoulder Disarticulation 90
3 Above Elbow upto upper 1/3 of arm 85
4 Above Elbow upto lower 1/3 of arm 80
5 Elbow Disarticulation 75
6 Below Elbow upto upper 1/3 of forearm 70
7 Below Elbow upto lower 1/3 of forearm 65
8 Wrist Disarticulation 60
9 Hand through carpal bones 55
10 Thumb through C.M. or through 1st M.C. Joint 30
11 Thumb Disarticulation through metacarpophalangeal joint or through proximal phalanx 25
12 Thumb Disarticulation through inter phalangeal joint or through distal phalanx 15

Amputation of Finger:-

Particulars Index Finger Middle Finger Ring Finger Little Finger
Amputation through proximal phalanx or disarticulation through MP joint 15.00% 5.00% 3.00% 2.00%
Amputation through middle phalanx or disarticulation through PIP joint 10.00% 4.00% 2.00% 1.00%
Amputation through distal phalanx or disarticulation through DIP joint 5.00% 2.00% 1.00% 1.00%

Lower Limb Amputations:-

1. Hind quarter 100%
2. Hip disarticulation 90%
3. Above knee upto upper 1/3 of thigh 85%
4. Above knee upto lower 1/3 of thigh 80%
5. Through keen 75%
6. B.K. upto 8 cm 70%
7. B.K. upto lower 1/3 of leg 60%
8. Through ankle 55%
9. Syme's 50%
10. Upto mid-foot 40%
11. Upto fore-foot 30%
12. All toes 20%
13. Loss of first toe 10%
14. Loss of second toe 5%
15. Loss of third toe 4%
16. Loss of fourth toe 3%
17. Loss of fifth toe 2%

5.4 What should be the amount of compassion in the cases where injured lost one of the limbs (amputation):-

Hon'ble Apex Court in the cases of Govind Yadav v/s National Insurance Com. Ltd., reported in 2012 (1) TAC 1 (SC) = 2012 ACJ 28 (SC), M.D. Jacob v/s United India Insurance Com. Ltd. 2014 ACJ 648 (SC) (FB) and Sanjay Kumar v/s Ashok Kumar 2014 ACJ 653 (SC) has held that as the cost of living and cost of artificial limb (prosthetic) has substantially increased and, therefore, Rs.2,00,000/- to be awarded under the said head. Rs.1,50,000/-each to be awarded under the heads of pain, shock & sufferings and special diet, attendance & transportation and loss of amenities and enjoyment of life, respectively. And if injured is unmarried and his/her prospects for marriage have considerably reduced, Rs.1,00,000/- may be awarded.

5.5 Whether Dependants of the injured claimant who died his natural death during the pendency of the claim petition are entitled to get any amount of compensation:-

5.5.1. Maxim “Actio Personalis Moritur-cum-Persona” is applicable in such cases. Even provisions of Section 306 (along with Illustrations) of Indian Succession Act, 1925 would apply. In the cases of Pravabati Ghosh & Anr. Vs. Gautam Das & Ors., reported in 2006 (Suppl) 1 GLT 15, relying on the ratio laid down by the Hon'ble Apex Court in the case of Melepurath Sankunni Ezuthassan v/s Thekittil Geopalankutty Nair, reported in 1986 (1) SCC 118, and the case of M. Veerappa v/s Evelyn Sequeria & Ors., reported in 1988 (1) SCC 556, has held in paragraph 8 of the judgment thus:-
“the right to sue will not survive in favour of his representatives, for, in such an appeal, what the legal representatives of such a claimant would be doing is to ask for compensation and the right to ask for compensation to be awarded does not survive if the claimant dies before the claim for compensation is awarded or decreed in his favour, the cause of death not being the injuries sustained by the deceased claimant”.

From the above referred ratio it becomes clear that if the claimant dies before the claim for compensation is awarded or decreed in his favour is passed, claim petition at the behest of the legal representative of the such injured claimant is not maintainable.

However, Hon'ble Gujarat High Court in the case of Jenabai wd/o Abdulkarim Musa v/s GSRTC, reported in 1991 GLR 352 and in the case of Surpalsing Gohil, reported in 2009(2) GLH 217 has taken a different view and has held that Section 306 of Indian Succession Act, 1925 and maxim Actio personalis moritur cum persona is not applicable in its widest sense in an accident causing injuries to a victim.

6.How to determine monthly income of the deceased or injured when no document in support thereof is not produced:-
In the case of Govind Yadav (supra), para No.17 it has been held that when there is no proof of income, income of the deceased or injured claimant shall be decided by taking into consideration prevalence minimum wages.

Several State Government have issued notifications of the relating to Minimum Wages Act, 1948 (hereinafter referred as '1948 Act'). Details of such notifications are under:-
Governments of National Territory of Delhi has revised minimum rates of wages applicable to all Scheduled Employees covered under the 1948 Act, vide Notification dated 12.09.2008, effective from 01.08.2008.

Categories Rates in Rupees Dearness Allowance Rates per month Rates per Day
Un-Skilled 3633 50 3683 142
Semi Skilled 3799 50 3849 148
Skilled 4057 50 4107 158

Rates applicable to Clerical and Non-Technical Supervisory Staff:-

Categories Rates in Rupees Dearness Allowance Rates per month Rates per Day
Non-matriculates 3826 50 3876 149
Matriculates but not graduates 4081 50 4131 159
Graduates and above 4393 50 4443 171

Government of National Territory of Delhi has revised minimum rates of wages applicable to all Scheduled Employees covered under the 1948 Act, vide Notification dated 26.07.2011, effective from 01.04.2011.

Occupation Wages per month in Rs Wages per day in Rs
Un-Skilled:- Peon, Watchman, Sweeper, Waterman, Cleaner etc. 6422 247
Semi-Skilled:- Bus conductor, Asst. Electrician, Asst. Plumber, Asst. Carpenter etc 7098 273
Skilled:- Liberian, Lab Assistant, Driver, Physical Instructor, Electrician, Plumber, Carpenter etc. 7826 301
Non-matriculates 7098 273
Matriculates but not graduates 7826 301
Graduates and above 8502 327

Government of Gujarat has fixed the following rates (in Rupees) as minimum Wages, w.e.f. 01.04.2013.

Workers/Employees Category of Workers Basis Rates per Day D.A. per day Total per day
Agriculture - 100 No Provision 100
Other Schedule Employees Un-Skilled

 
130-135 70 200-205
Other Schedule Employees Semi-Skilled 135-140 70 205-210
Other Schedule Employees Skilled 140-150 70 210-220
         

6.2.5. Data prior to 2008 is not available but it may be obtained from the office of Labour Commissioner.

7. How to determine income of the deceased or injured claimant when there is documentary evidence on record to show that the deceased or injured claimant was earning in foreign currency and not in Indian Rupee:-
Hon'ble Apex Court in the case of United India Insurance Co. Ltd v/s S.Malarvizhi, decided on 6 June, 2013 has held that when the deceased or injured claimant was getting salary in foreign currency, then in such situation such foreign salary/income should be converted into Indian Rupee, at the rates applicable at the time of accident and deduction of higher percentage of 60% of the income and low multiplier should be applied.

Reference may also be made to ratio laid down in the case of In the case of United India Insurance Com. Ltd. v/s Patricia Jean Mahajan, reported in 2002 (6) SCC 281 = 2002 ACJ 1481= 2002 (4) Supreme 518. Said case before the Hon'ble Supreme Court arose out of a claim made on behalf of the Doctor of Indian origin who became the American citizen and was killed in a road accident when he visited India. The claim for compensation was based upon the income in the foreign country and while considering the said case, among other things, the Hon'ble Supreme Court observed that the total amount of compensation would work out to Rs.16.12 crores with interest and looking to the Indian Economy, fiscal and financial situation, the amount is certainly a fabulous amount though in the background of American conditions it may not be so. It was further held that when there is so much disparity in the economic conditions and affluence of two places viz. place to which the victim belong and the place at which the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair compensation. Looking by the Indian standards they may not be much too overcompensated and similarly not very much under compensated as well, in the background of the country where most of the dependent beneficiaries reside.

8. How to decide a claim petition where defence of Invalid, Learners Licence & Fake Driving Licence and Defense of Qualification/Badge is taken:-
Reference is required to be made to ratio laid down by Hon'ble Apex Court in the case of National Insurance Com. Ltd. V/s Swaran Singh, reported in AIR 2004 SC 1531, in Para No.105 it has been held as under:-
105:- The summary of our findings to the various issues as raised in these petitions are as follows :
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.

(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears as land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.

The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims”.

8.2 Bare reading of above referred observations makes it clear that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.

8.3 It is also held in Para 105 (ix) and (x) that Tribunal is empowered to pass and order to “Pay and Recover” against the insurer.

8.4 As far as, defence of insurer qua the qualification/badge of the licence is concern, same can be decided by relying upon para Nos.42, 43 & 84 of the Swaran Singh's case. Paras 42, 43 & 84 reads as under:-
“42. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example when a person is granted a licence for driving a light motor vehicle he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.

43. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3) a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.

Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) Motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', 'heavy-goods vehicle', 'heavy passenger motor-vehicle', 'invalid carriage', 'light motor-vehicle', 'maxi-cab', 'medium goods vehicle', 'medium passenger motor-vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer', and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab' or 'omnibus' for which he has no licence.In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence”.

8.4 Meaning thereby, even if driver of offending vehicle was not qualified to ply the offending vehicle or was not having the required badge to ply such vehicle then also insurer is liable to pay amount of compensation. Before passing any order, Tribunal has to decide whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.

8.5 Reference is also required to be made to the recent decision of Hon'ble Apex Court in the case of S. Iyyapan v/s United India Insurance Com. Ltd., dated 01.07.2013. Wherein, after referring several ratios of Hon'ble Apex Court, it has been held in Para No.19 that:-

“In the instant case, admittedly the driver was holding
a valid driving licence to drive light motor vehicle. There is no
dispute that the motor vehicle in question, by which accident took
place, was Mahindra Maxi Cab. Merely because the driver did not get
any endorsement in the driving licence to drive Mahindra Maxi Cab,
which is a light motor vehicle, the High Court has committed grave
error of law in holding that the insurer is not liable to pay
compensation because the driver was not holding the licence to drive
the commercial vehicle. The impugned judgment is, therefore, liable
to be set aside”.

8.6 Even in the case of New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir, reported in AIR 2008 SC 2266, it has been held that when driver of offending vehicle was holder of licence of three wheeler i.e. auto rickshaw delivery van and his licence was not meant for driving 'transport vehicle' but for goods carrying public carrier, in such case Insurer is not liable but directed the insurer to first pay entire amount of compensation with a further direction to recover the same from the insured (these directions were issued under Article 142 of Constitution of India).

9. In which circumstances, Insurer is liable to pay compensation when injured claimant or deceased was travelling in the goods vehicle:-
9.1 It is the duty of the insurer to prove that injured claimant or deceased was travelling in the goods vehicle and, therefore, it is not liable to pay amount of compensation, unless, same has been prove, insurer is liable to pay amount of compensation.

9.2 To decide whether, injured claimant or deceased was travelling in the goods vehicle or not, Panchnama of scene of accident plays very vital role. If, after reading Panchnama, it appears that there were goods loaded in the vehicle or were found lying at the sight of accident then it can be presumed that vehicle was used for carrying goods. However, there are some points, which are required to be considered before fastening liability on insurer, which are:-

9.2.1 Whether injured claimant or deceased was travelling in the cabin of the goods vehicle or not. If, injured claimant or deceased was travelling in the cabin of the goods, insurer is liable otherwise not. Reference be made to ratio laid down by Hon'ble Apex Court in the case of National Insurance Co. Ltd. v/s Cholleti Bharatamma, reported in AIR 2008 SC 484.

9.2.2 Whether the insurer is liable in a case where the injured claimant or deceased was travelling in the goods vehicle as the labourer of the owner or the hirer:-

9.2.2 Whether the insurer is liable in a case where the injured claimant or deceased was travelling in the goods vehicle as the labourer of the owner or the hirer:-

If it is proved that injured claimant or deceased was travelling in the goods vehicle as the labourer of the owner of the goods then insurer is liable to pay amount of compensation, provided additional premium of labourer/collie is paid by the owner but insurer is not liable in the such cases where injured claimant or deceased was travelling in the goods vehicle as the labourer of the hirer. Reference be made to the ratio laid down in the case of Sanjeev Kumar Samrat v/s National Insurance Co. Ltd, reported in AIR 2013 SCW 301, wherein it is held that:-

“the Act policy does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the Workmen's Compensation Act, 1923 it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorized agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy”.

9.3 Whether insurer is liable in the case where injured claimant or deceased was travelling in the goods vehicle as the owner or representative of the goods:-

If it is proved that the injured claimant or deceased was travelling in the goods vehicle as the owner or representative of the goods, insurer is liable to pay amount of compensation otherwise not. Reference be made to ratio laid own in the case of New India Insurance Company v/s Darshana Devi, reported in AIR 2008 (Supp) SC 1639.

9.4 Whether injured claimant or deceased was travelling in Tractor-/trolley is entitled to get amount of compensation:-

Normally, Tractor-trailer/trolley is used for agricultural purpose and if it found that same was used for agricultural purpose and same is covered by the 'Farmer Comprehensive Policy' or the 'Farmer Package Policy', in such situation, insurer is liable to pay compensation. If the above referred two conditions are not fulfilled, insurer can not be held responsible to pay amount of compensation.

It is also to be noted that in the Annexure of Indian Motor Tariff, list of Miscellaneous and Special types of vehicles is given. As per the said list tractors can be used for Agricultural and if Trolley is attached to such Tractor, same may be used for carrying goods. As per the said list there is one another kind of Tractor, which is 'Traction Engine Tractor'. If is found that tractor is not used for the purpose of agricultural work and if it used for carrying goods, such tractor-trolley must be insured for such purpose and if is not insured as such, insurer is not liable to pay any amount of compensation.

It to be noted that when insurance policy contains 'Avoidance Clause', then in such situation, insurer is liable to pay compensation under the principle of 'Pay and Recover'. Reference may be made to the ratio laid down in the case of New India Assurance Co. Ltd. v. Vimal, Devi, reported in 2010 ACJ 2878 and ratio laid down by the Hon'ble Full Bench of Hon'ble Gujarat High Court in the case of Shantaben Vankar v/s Yakubbhai Patel, reported in 2012 ACJ 2715.

9.6. However, it is to be noted that the issue with respect to passing an order of 'Pay and Recover' is pending for consideration before the Full Bench of Hon'ble Apex Court. Reference be made to judgment delivered in the case of National Insurance com. Ltd. v/s Parvathneni, reprted in 2009 (3) GLH 377 (SC).

10. Liability of insurer to pay compensation in the cases where injured claimant or deceased was travelling in the private car as occupants or travelling on two wheeler as pillion rider:-
10.1. In the recent decision, Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Balakrishnan, reported in AIR 2013 SC 473 has held in para No.21 that:-
“comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered”.

10.1.1. In view of the observations made by Hon'ble Apex Court in the case of Balakrishnan (supra), occupant of private car or the pillion rider of two wheeler is entitled to recover amount of compensation from insurer, provided the offending vehicle is covered with the 'Comprehensive/ Package Policy'. Reference may also be made to ratio laid down in the case of Oriental Insurance Company Ltd. v. Surendra Nath Loomba, reported in AIR 2013 SC 483.

11. How to decide a claim petition preferred under section 163-A of the Act:-
As per the ratio laid down in the case of Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385 = AIR 2004 SC 2107, Hon'ble Full Bench of Apex Court has held that claim petition preferred u/s 163-A is under 'No Fault Liability'. Whereas, in the case of National Insurance Company Ltd. v. Sinitha, reported in AIR 2012 SC 797, Hon'ble Supreme Court has held that claim petition preferred u/s 163-A is under 'Fault Liability'.

It does not become clear from the facts of the of Deepal Girishbhai Soni's (supra) case as to whether, more than one vehicles were involved in the said accident or not but from the reading of the Sinitha's (supra) case, it becomes clear that there was only one vehicle involved and question which was required to be decided by Hon'ble Apex Court as to whether, insurer has succeeded in proving that claimant himself was negligent in causing the accident or not.

From the reading of both the above referred ratios, it appears that there are conflicting views and, therefore, each claim petition may be decided on the basis of it's facts. That is to say, if only one vehicle is involved, point of negligence must be decided.
The ratio laid down in the case of Sinitha (supra) is referred to the Full Bench for consideration. Please refer to United India Insurance Com. Ltd. v/s Sunil Kumar, reported in 2013 ACJ 2856 (SC).

It is to be noted that in a claim petition, preferred u/s 163A of the Act, income of the injured claimant or the deceased should not be more that Rs.40,000/- per annum. If, the income of the injured claimant or the deceased is more that Rs.40,000/- per annum, in such cases, claimant/s may be given an option to convert the same under Section 166 of the Act. If claim petition is not converted, even after the order/direction, same be dismissed. In this regards reference many be made to ratio laid down in the case of Deepal Girishbhai Soni (supra).

It also required to be noted that in the Fatal injury cases, multiplier cannot be applied as same is applied only in the cases where claim petition is preferred by the injured. Reference be made to ratio laid down in the case of National Company Ltd. Versus Gurumallamma, reported in AIR 2009 SCW 7434, para No.8. Similar kind of observations are made by Hon'ble Apex Court in the case of Sarla Verma (supra), at Para No.17 (page No.3112 in AIR), which reads under:-

“... Therefore, where the application is under section 163-A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs. 40,000/- by applying the formula : (2/3 x A1 x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation”.

From the above referred ratios, laid down by Hon'ble Apex Court, it becomes amply clear that Tribunal is not required to make calculation of compensation on the basis of application of multiplier. But Tribunal is only required to grant compensation as per Schedule-II of the Motor Vehicle Act, taking into considering the age and income of the deceased and figure shown against the age and income of the deceased. For an example, if, monthly income of the deceased who was aged about 48 years at the time of accident, is assessed as Rs.2,500/- per month (Rs.30,000/- per annum), how the compensation should be calculated. Since Rs.30,000/- per annum is not shown anywhere in column of “ANNUAL INCOME” of the Second Schedule of the Act, now, the question, is how the amount of compensation to be calculated. In such cases, average of figures in the income group of Rs.24,000/- per annum and Rs.36,000/- per annum i.e Rs.2,86,000/- and Rs.4,32,000, respectively are required to be taken into consideration. Average of Rs.2,86,000/- and Rs.4,32,000, comes to Rs.3,59,000. Out of the said amount of 3,59,000, 1/3 is required to be deducted in consideration of expenses incurred by deceased towards maintaining himself and, therefore, net amount of future income loss comes to approximately Rs.2,40,000/-. [Reference:- National Insurance Com. Ltd. v/s P.C. Chacko, reported in 2012 ACJ 1065 (Devision Bench of Hon'ble Kerala High Court, Ernakulan Bench)]

It is to be remembered that in every claim petition preferred u/s 163-A of the Act, whether the deceased is married or not, unlike as claim petition preferred u/s 166 of the Act, one-third (1/3rd) amount from the actual income of the deceased should be deducted towards personal and living expenditures of the deceased.

Over and above the future income loss, claimant/s is/are entitled to such amount, specified under the Second Schedule of the Act. However, in the case of Sapan v/s United India Insurance Com. Ltd., reported in AIR 2008 SC 2281, held that when claim petition preferred u/s 163A and claimant would remain crippled throughout life and would have no enjoyment for life, Tribunal can award further sum of Rs. 75,000/- for future medical treatment.
In the case of Oriental Insurance Company Ltd. v/s Rajni Devi, (2008) 5 SCC 736, wherein Hon'ble Apex Court has categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. Above referred ratio is applicable in the case where the deceased/injured not being the owner of the vehicle and if he borrows the such vehicle from its real owner, in such case the deceased cannot be held to be employee of the owner of the vehicle although he is authorised to drive the said vehicle by its owner, and therefore, under such circumstances, he steps into the shoes of the owner of the vehicle. - Similar views are taken in by the Hon'ble Apex Court in the case of New India Assurance Co. Ltd. v. Sadanand Mukhi (2009) 2 SCC 417 and Ningamma v/s United India Insurance Co. Ltd., reported in AIR 2009 SC 3056.

12. What if the cheque given for payment of premium of insurance policy is dishonoured:-
Reference may be made to the ratios laid down in the cases of Deddappa v/s National Insurance Com. Ltd., reported in (2008) 2 SCC 595 = AIR 2008 SC 767 = 2007 AIR SCW 7948 and United India Insurance Com. Ltd v/s Laxmamma, reported in 2012 ACJ 1307 (SC). In both these judgments, it has been held that when cheque given for payment of premium of policy, is dishonoured and on that count Insurance Company cancels the policy by intimating the insured of such dishonour of cheque before the date of accident, then in such situation Insurance Company cannot be held liable to pay amount of compensation but if insurer fails to intimate the insured about such dishonour and cancellation of policy before the date of accident, then in such situation insurer is held liable to pay amount of compensation and Insurance Company may prosecute its remedy to recover the amount paid to the claimants from the insurer.

13. What is the meaning of “Arising out of use of Motor Vehicle”:-
Legislature has advisedly used the expression 'arising out of the use of motor vehicle' and not 'connected with the use of motor vehicle' under Sections 140, 163-A and 166 of the Act and, therefore, there must be more direct and pronounced linkage or nexus between the use of motor vehicle and the accident which has resulted. A mere casual connection is not sufficient.

To decide the such issue one may advantageously refer to the judgment delivered by Hon'ble Apex Court, reported as Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More, (1991) 3 SCC 530 = AIR 1991 Sc 1769. In the said case, Hon'ble Apex Court considered at length, the questions whether the fire and explosion of the petrol tanker in which deceased lost his life could be said to have resulted from an accident arising out of the use of a motor vehicle, namely the petrol tanker. The court answered the question in the affirmative, that is to say, in favour of the claimant and against the insurance company.

It is true that the case Shivaji Dayanu Patil (supra) arose from the claim for no-fault compensation under section 92A of the 1939 Act (u/s 163-A of the New Act). All the material facts were considered at length by Hon'ble Apex Court in above referred case and, therefore, said principle is also applicable in the claim petition preferred u/s 166 of the Act.

Ratio laid down by Hon'ble Apex Court in the case of Shivaji Dayanu Patil (supra) is also relied upon by Hon'ble Apex Court in several decisions, namely, Samir Chanda, v/s Managing Director, Assam State Transport Corporation, reported in AIR 1999 SC 136 and Smt. Rita Devi v/s New India Assurance Co. Ltd., reported in AIR 2000 SC 1930 and New India Assurance Co. Ltd. v. Yadu Sambhaji More, reported in AIR 2011 SC 666.

14. Whether Finance Company, which has advanced loan for the purpose of purchase of vehicle under the 'Hire Purchase Agreement' can be said to be the owner of the Vehicle:-
Hon'ble Apex Court in the case of Godavari Finance v/s Degala Satyanarayananamma, reported in 2008 ACJ 1612 has held in para 13 as under:-

“13. In case of a motor vehicle which is subjected to a Hire-Purchase Agreement, the financier cannot ordinarily be treated to be the owner. The person who is in possession of the vehicle, and not the financier being the owner would be liable to pay damages for the motor accident”.


Reference may also be made ratio laid down in the case of Anup Sarmah v/s Bhola Nath Sharma, reported in IV (2012) CPJ 3 (SC), para No.8 & 9.

15. When an accident, involving two vehicles and driver of one of the unknown vehicle sped away after the accident, whether in such situation, claim petition is maintainable against the other tortfeasor, in view of the provisions contained under Sections 161 & 163 of the Act:-


Hon'ble Division Bench of Gujarat High Court in First Appeal No.3354 of 2000 with Civil Application No.746 of 2005 dated 13.7.2005 has held in such situation claim petition is not maintainable. But Hon'ble Gujarat High Court in the case of Bhanuben P. Joshi V/s. Kantilal B. Parmar, reported in 1994 ACJ 714 (DB) has held otherwise. Facts of the Bhanuben P. Joshi (supra) as under:-

In the said case accident occurred because one unknown truck dashed the motor cycle from behind and after the accident, truck driver sped away with the truck and remained unidentified and pillion rider sustained fatal injuries. Claimants of the said claim petition averred that motor cycle was being driven by its rider at excessive speed and in rash and negligent manner. Tribunal dismissed the claim petition by holding that there was no rashness on the part of the motor cyclist. After noting the said facts Hon'ble Gujarat High Court has observed that motor cycle was being driven in rash and negligent manner and in flagrant violation of traffic rules and regulations and finally reversed the finding of Tribunal.

It is also held in para No.9 of the above referred ratio, namely Bhanuben P. Joshi (supra) that victims of road accident are entitled to claim compensation from all or any of the joint tortfeasors, it would not be necessary to apportion the extent of contribution of each driver of happening of unfortunate accident.

From the above referred ratios it becomes clear that even if driver and owner of the unknown vehicle is not joined as parties opponents, claim petition is maintainable against any one of the tortfeasors.

16. Whether all the joint tortfeasors are required to be joined as party opponents in the claim petition:-
Hon'ble Gujarat Court in the case of O.I.Com.Ltd. v/s Zubedaben Pathan, in F.A. No.651 of 2012 and judgment dated 18.02.2010, delivered by Hon'ble Kerala Court in the case of U.I.Com.Ltd. v/s Mariamma George, in M.A.C.A. No.744 of 2005 have held that the claimant/s is/are not entitled to recover amount of compensation, jointly and severally from the insurance company/companies, if all the tortfeasors are not joined.

But Hon'ble Gujarat High Court in the case of Amarsing Jugabhai v/s Vijyaben Dhuliya, reported in 1996(3) GLR 493 has held in para No.23 that:-
“Where a person is injured in a motor accident which occurs not on account of his negligence, but because the drivers of collided vehicles were negligent, the claimants are entitled to damage jointly and severally from the negligent respondents. Every wrong-doer is liable for the whole damage and it does not matter whether they acted between themselves as equals. A decree passed against two or more tortfeasors can be executed against any one of the defendants and such defendant can be compelled to pay the entire amount of damages decreed. It is further clear that the defendant who is compelled to pay the entire amount of damages decreed has a right to contribution from the other wrong-doer. The liability in the case of composite negligence, unless must normally should not be apportioned because the claimant is able to recover the whole amount of compensation from owner or driver of either vehicles. In case of composite negligence, liability for compensation in normal circumstances, should not be apportioned, as both wrong-doers are jointly and severally liable for the whole loss. Rule of apportionment of liability applies in a case of contributory negligence, i.e., where the injured himself is also guilty of negligence.”

Hon'ble Gujarat High Court in the case of Kusumben Vipinchandra Shah v. Arvindbhai Narmadashankar Raval, reported in AIR 2007 Guj. 121. Wherein it is held that:-

“As held in Gujarat State Road Transport Corporation v. Gurunath Shahu (supra), the finding given by the Tribunal in such a case regarding apportionment of liability would be tentative for the purpose of subsequent proceeding which might be filed by the defendant tortfeasor against the other joint tortfeasor who was not a party to the first proceeding. But such tentativeness for the purpose of contribution between two joint tortfeasors did not at all affect the right of the plaintiff-claimant to recover full damages from the defendant tortfeasor against whom the first proceeding was filed”.

In the recent decisions, in the cases of Oriental Insurance v/s Meena Variyal, reported in 2007 ACJ 1284 (SC), Pawan Kumar v/s Harkishan Dass Mohan, reported in 2014 ACJ 704 (SC) (FB), Hon'ble Apex Court has taken the view that where a person is injured/expired in a motor accident which occurs not on account of his negligence, but because the drivers of collided vehicles were negligent, the claimants are entitled to damage jointly and severally from the negligent respondents and such claimants are not required to join all tortfeasors as party. From the above referred ratios it becomes clear that claimant/s is/are not required to join all the tortfeasors as party opponent/s.

17. Whether the point of negligence and liability of insurer, decided by the co-ordinate Tribunal is binding on the other co-ordinate Tribunal, if the claim petition has arisen from the same accident:-
Hon'ble the Privy Council in its decision rendered in the case of Syed Mohamamd Saadat Ali Khan v. Mirza Wiquar Ali Beg, reported in AIR (30) 1943 PC 115 has observed as under :-
"In order that a decision should operate as res judicata between co-defendants, three conditions must exist : (1) There must be a conflict of interest between those co-defendants, (2) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims, and (3) the question between the co-defendants must have been finally decided."

Thus, the Privy Council has laid down that if the aforesaid three conditions stand satisfied, res judicata can operate between the co-defendants also. Said principle is also followed by Hon'ble Gujarat High Court in the case of United India Insurance Com. ltd. v/s. Laljibhai Hamirbhai, reported in 2007 (1) GLR 633.

18. Whether a claim petition preferred by the a claimant (also the owner of the offending vehicle, without involving another vehicle) alleging therein that accident occurred because of the rash and negligent driving of the driver of the vehicle owned by him, is maintainable:-

Hon'ble Apex Court in the cases of Dhanraj v/s N.I.A.Com. Ltd., reported in 2005 ACJ No.1, Oriental Insurance Com. Ltd. v/s Jhuma Saha, reported in 2007 ACJ 818 and N.I.A. Com. Ltd. v/s Meera Bai, reported in 2007 ACJ 821 has interpreted Section 147 and it has been held that Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.

To decide such point, fact of each case is required to be taken into consideration. Facts of Dhanraj (supra) are:- Appellant (owner of jeep) along with certain other persons were travelling in his own Jeep and said Jeep met with an accident. In the accident, the Appellant as well as other passengers received injuries. In the claims petitions, Tribunal held the Driver of the Jeep responsible for the accident. In all the Claim Petitions filed by the other passengers, Tribunal directed that the Appellant (as the owner) as well as the Driver and Insurance Company were liable to pay compensation. In the Claim Petition filed by the appellant-owner of the jeep, the Tribunal directed the Driver and the Insurance Company to pay compensation to the appellant. Insurance Company filed an Appeal before the Hon'ble Madhya Pradesh High Court. That Appeal was allowed and held that as the appellant was the owner of the jeep and, therefore, the Insurance Company is not liable to pay him any compensation. Against the said order of Hon'ble Madhya Pradesh High Court, appeal was preferred by appellant-owner. In the said appeal, after incorporating Section 147 of the Act, Hon'ble Apex Court has held that comprehensive policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.

Relying upon Oriental Insurance Co. Ltd. v. Sunita Rathi and Ors. 1998 ACJ 121, it is further held in para No.9 that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property.

Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also.

From the ratio laid down by Hon'ble Apex Court in the case of Dhanraj (supra), it becomes amply clear that comprehensive policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.

19. What is the meaning of “Public Place”, as defined u/s 2(34) of the Act:-
Definition of 'Public Place', reads as under:-
"2(34) "Public place" means, a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."

The definition of 'public place' under the M. V. Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose.


Vary question came up for consideration before the Full Bench of Bombay High Court in Pandurang Chimaji Agale and another v. New India Life Insurance Co. Ltd., Pune and others, AIR 1988 Bom 248, wherein the Hon'ble Court after taking note of the divergent views of different High Courts with regard to the meaning and import of the term 'public place', as defined under Section 2(24) of the 1939 Act (corresponding to Section 2(34) of the M. V. Act), proceeded to hold that for the purpose of Chapter VIII of the said Act, the expression 'public place' will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever.


Relying on the Full Bench decision of the Bombay High Court (cited supra), a Full Bench of Madras High Court in the case of United India Insurance Co. Ltd. v. Parvathi Devi and others, 1999 ACJ 1520 (Madras) has held as follows:-

"16. The definition of 'public place' is very wide. A perusal of the same reveals that the public at large has a right to access though that right is regulated or restricted. It is also seen that this Act is beneficial legislation, so also the law of interpretation has to be construed in the benefit of public. In the overall legal position and the fact that if the language is simple and unambiguous, it has to be construed in the benefit of the public, we are of the view that the word 'public place' wherever used as a right or controlled in any manner whatsoever, would attract section 2(24) of the Act. In view of this, as stated, the private place used with permission or without permission would amount to be a 'public place'”.

Division Bench decision of the Kerala High Court in the case of Rajan v. John, 2009 (2) TAC 260 (Ker) : (AIR 2009 Ker 136), the Hon'ble Court while considering the definition of 'public place' for the purpose of Section 2(34) of the Act, proceeded to hold that the term 'public place' cannot be given a restricted meaning in- as much as, it is not to be taken as a place where public have uncontrolled access at all times. 'Public place' for the purpose of the Act has to be understood with reference to the places to which a vehicle has access. Accordingly, the Hon'ble Court proceeded to hold that the private premises of a house where goods vehicle is allowed entry, is a 'public place' for the purpose of Section 2(34) of the Act and therefore the insurer is liable to pay the compensatioon.

From the above referred ratios, it becomes clear that in any private premises, where goods vehicle is allowed entry, is a 'public place' for the purpose of Section 2(34) of the Act.

20. What if, the vehicle which met with an accident was sold of by its registered owner before the date of accident and name of the transferee owner (purchaser) is not entered into the R.C. Book:-
Hon'ble Madhya Pradesh High Court and Hon'ble Kerala High Court, in the cases reported in 2011 ACJ 577 & 1997 ACJ 260, respectively, it has been held that when registered owner denies his liability to pay amount of compensation on the ground that he had sold the vehicle in question and received the consideration thereof and handed over the possession of the vehicle along with R.C. Book and relevant transfer Forms for getting the vehicle transferred in the name of transferee much prior to the accident, then in that circumstances transferee owner cannot be allowed to evade his liability to pay amount of compensation on the ground that he is not registered owner.

But Hon'ble Supreme Court in the case of Pushpa alias Leela v/s. Shakuntala, reported in 2011 ACJ 705(SC) = AIR 2011 SC 682 in the above referred judgment Hon'bel Apex Court, in paragraphs Nos.12 to 16 has held as under:-

“12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose v. Chacko P.M., (2001) 8 SCC 748 : (AIR 2001 SC 3939). In paragraphs 9 and 10 of the decision, the Court observed and held as follows:

9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No.9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.

10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as. the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so."
(Emphasis added)

13. Again, in P.P. Mohammed v. K. Rajappan and Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows:

"4. These appeals are filed by the appellants. The Insurance Company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. (reported in 2001 (8) SCC 748) wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person."
(Emphasis added)

14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of section 2(30) and section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act.On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.

15. Learned counsel for the Insurance Company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. v. Deepa Devi and Ors., (2008) 1 SCC 414 : (AIR 2008 SC 735). The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand.

16. In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment”.

From the above referred ratio of Hon'ble Apex Court, it can be held that, as on the date of accident, transferor owner was the registered owner of offending vehicle, he must be deemed to continue as owner of the offending vehicle for the purpose of the Motor Vehicles Act, even though under the Civil Law, he ceased to be its owner after its sale and Transferor Owner and Transferee Owner (both) are equally liable to pay the amount of compensation in favour of the claimant.

21. Whether a claim petition can be dismissed for want of prosecution or non-appearance of the claimant and/or his Advocate:-
Hon'ble Gujarat High Court in the case of Bharatbhai Narsingbhai Chaudhry v/s Malek Rafik Malek Himantbhai Malek, reported in 2012 ACJ 1262 = AIR 2011 Gujarat 150 has held in Para No.5.14 and 6.1 that Claims Tribunals are not empowered to dismiss claim application for default of claimant after framing of issues. It is further held that Tribunals are required to decide claim petitions on merits with a view to provide substantial justice to the victim of accident, keeping in mind the object of benevolent legislation, instead of entering into niceties and technicalities.

However, Full Benches of Hon'ble Kerala High Court in the case of Jacob Thomas v. C. Pandian, reported in AIR 2006 Kerala 77 and Jammu & Kashmir High Court in the case of Mohammad Yousuf Wani v/s Abdul Rehman Gujri, reported in AIR 1982 Kerala 146 have taken a view that when O. 9 of CPC is specifically made applicable to proceedings before claims Tribunal, it cannot be said that Tribunal has no power to dismiss application for default when the case is posted for hearing if claimant is absent and respondents are present. But, S. 168 did not insist that in all cases award should be passed but only directed that Tribunal "may make an award", once it makes a judgement or award, mandates of Rules framed under the Act has to be complied with.

22. Whether a claim petition can be dismissed for non production of documents mentioned under Rule 211 of the Gujarat Motor Vehicles Rules,1989:-
There is no judgment on this point but Rule 211, sub-rule 5 provides that:- with all claim petition, preferred u/s 166 of the Act, FIR, Injury Certificate or Postmortem Report and details of owner and insurance policy of offending vehicle, supplied either by police or regional transport authority should be furnished.

Above referred provisions are mandatory provision and deviation therefrom, would lead to dismissal of the claim petition. However, it is to be noted that along with claim petition, original documents are not required to be furnished and only photo copy of such documents will do. Original documents may be produced when the stage of evidence comes.

23. How to decide a claim petition, where insurer has taken a defence of violation of 'Permit':-
In some claim petitions, insurer takes defence of violation and/or breach of 'Permit'. To understand legal position, some examples with the case law are required to be taken into consideration. Some examples and findings of the Hon'ble High Courts are as under:-

Insurer seeks to avoid its liability on the ground that offending vehicle was being plied without valid permit. It has come on record that insurer had insured the said vehicle without there being valid permit. Therefore, it is held that it is the duty of Insurer to verify the fact that permit of vehicle was valid or not at the time of insuring the vehicle and, as insurer having insured the vehicle without valid permit, it cannot seek exemption from liability. This has been held by Hon'ble Uttarakhand High Court in the case of U.I.I.Com. v/s Prakashi Devi, reported in 2011 ACJ 1683.

Insurer seeks to avoid its liability on the ground that owner of ‘Taxi’, which hit the pedestrians had violated terms of policy, as ‘Taxi’ could not have been used in a public place after expiry of permit. It has come on record that policy was valid. Even it was not the case of Insurer that passengers were being carried for hire and reward and policy did not cover the case of Third Party. It was therefore, held that victim did not suffer injuries while travelling in the ‘Taxi’ for hire or reward and mere expiry of permit would not absolve Insurer to pay compensation, as no provision of the Act is shown by Insurer to point out that owner of ‘Taxi’ was under legal obligation, not to ply ‘Taxi’ after the expiry of permit. This has been held by Hon'ble Kerala High Court in the case of Sethunath v/s John Varghese, reported in 2011 ACJ 2242.

Truck was loaded with coal and carrying 12 passengers, capsized. Truck was insured covering driver, cleaner and 6 coolies. Insurer contended that truck was over loaded as it was carrying more that 8 persons and further contended that there is breach of policy. It is held that Insurer has failed to show that carrying more number of coolies would be treated as breach of policy and, it has been further held that if at all there is any breach of policy, it is not so fundamental as to put end to the contract totally. Finally Insurer was directed to satisfy the highest six awards of coolies. This has been held by Hon'ble Bombay High Court in the case of Sanjay v/s Sukhiyabai, reported in 2012 ACJ 287.

Truck hit a person standing on roadside and he sustained grievous injuries. Tribunal found that Truck was being plied without valid permit and owner of the Truck has committed breach of the terms and condition of policy. After holding this, Tribunal directed insurer to pay compensation and then recover from the owner. This award of Tribunal was challenged before the Hon'ble High Court. Hon'ble High Court, after relying upon the several Judgments of Hon'ble Apex Court, has held that award of Tribunal is just and proper and directions of Tribunal against insurer to 'pay and recover' is just and proper. This has been held by Hon'ble Allahabad High Court (DB) in the case of N.I. Com. v/s Radhey Shyam, reported in 2013 ACJ 788.

Mini bus being plied on the route for which it had no permit. It is also found that in the said bus 13 passengers travelling against the permit of 12 passengers. Held that there is violation of insurance policy and Insurer held not responsible but order of 'pay and recover' is passed. This has been held by Hon'ble Himachal Pradesh High Court in the case of N.I. Com. v/s Balbir Singh, reported in 2013 ACJ 1008.

The interpretation of contravention of condition of permit envisaged under Section 66 of the M.V. Act and the contravention of condition/s of permit came up for consideration before the Hon'ble Apex Court in State of Maharastra v/s Nanden parrebhani, reported in (2000) 2 SCC 69, albeit in a different context. In the said case, the police had seized certain vehicles for carrying passengers in excess of the numbers permitted by the condition of permit issued by the Transport Authority. The action was challenged by the Association of Transporters by virtue of a writ petition before the Hon'ble Aurangabad Bench of Hon'ble Bombay High Court. The Hon'ble High Court analyzed the different provisions of the M. V. Act, and the Rules framed thereunder and on consideration of the same came to the conclusion that it is not each and every violation of the condition of the permit which would authorize the seizure and detention of the vehicle under Section 207 (1) of the M.V. Act. It was held that it was only when the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle was used, is violated, the vehicle could be seized by the Authorities. The Appeal filed by the State of Maharastra was dismissed by the Hon'ble Supreme Court. The contention raised on behalf of the State of Maharastra that carrying passengers more than prescribed by the permit could be construed to be violation, was rejected. The Supreme Court relied upon the report in Kanailal Sur v/s Paramnidhi Sadhu Khan, reported in (1958) 1 SCR 360 and held as under:-

"If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The intention of the legislature is required to be gathered from the language used and, therefore, a construction, which requires for its support with additional substitution of words or which results in rejection of words as meaningless has to be avoided. Bearing in mind, the aforesaid principles of construction of statute and on examining the provisions of Section 207 of the M.V. Act, which has been quoted earlier, we have no doubt in our mind that the police officer would be authorised to detain a vehicle, if he has reason to believe that the vehicle has been or is being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required under Sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used. In the case in hand, we are not concerned with the contravention of Section 3 or Section 4 or Section 39 or Sub-section (1) of Section 66 and we are only concerned with the question of contravention of the condition of permit. Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. According to the learned Counsel, appearing for the State of Maharashtra, the expression "purpose for which the vehicle may be used" could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expression "relating to the route on which or the area in which or the purpose for which the vehicle may be used". The user of the aforesaid expression cannot be ignored nor can it be said to be a tautology. We have also seen the Form of permit (From P.Co. T.), meant in respect of a tourist vehicle, which is issued under Rule 72(1)(ix) and Rule 74(6) of the Maharashtra Motor Vehicles Rules, 1989. On seeing the different columns, we are unable to accede to the contention of the learned Counsel appearing for the State of Maharashtra, that carrying passengers beyond the number mentioned in Column 5, indicating the seating capacity, would be a violation of the conditions of permit relating to either the route or the area or the purpose for which the permit is granted. In this view of the matter, we see no infirmity with the conclusion arrived at by the Hon'ble High Court in the impugned judgment and the detention of the vehicles has rightly been held to be unauthorised and consequently, the compensation awarded cannot be said to be without jurisdiction........."

23.2.1. Although, the interpretation of Section 207 of M.V. Act was done by Hon'ble Apex Court in a different context, but same would apply to Clause (c) to Section 149 (2) (a) (i) of the Act.

Thus, if a vehicle has been or is being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required under Sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, if contravened, would amount to violation of permit and not every contravention or violation of condition of permit issued by the Transport Authority would amount to violation of permit.
From the above referred ratios, it becomes clear that it is for the insurer to verify before insuring the vehicle, as to whether vehicle is having valid permit or not and, if insurer having insured the vehicle without valid permit, it cannot seek exemption from liability afterwards.

If it is found that owner has violated terms of the policy, Tribunal can pass an order exonerating insurer but may also pass and order of 'pay and recover'.

24.Whether an award passed by the Tribunal can be reviewed:-
Many time claimant or opponent/s including insurer prefer/s an application for review of award passed by the Tribunal on the ground that the award on a question on which the judgment of the Tribunal is based has been reversed or modified by the subsequent decision of Superior Court. To deal with such kind of application, reference may be made to Explanation of Order XLVII (47) Rule – 1 of C.P.C., 1908, which reads as under:-

Explanation of Order XLVII (47) Rule – 1 of C.P.C.:-
“The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment”.

From the above referred provision, it becomes clear that when an application for review of award, passed by the Tribunal is moved on the ground that the award on a question on which the judgment of the Tribunal is based has been reversed or modified by the subsequent decision of Superior Court, such application can not be entertained.

Various High Courts have taken a view that Tribunal does not have powers to modify, alter, recall and revers it's earlier award. And if such an order is passed in review petition/application, it is nullity, non est and void. Relying upon the several decisions, Hon'ble Allahabad High Court in the case of N.I.Com. v.s Rajbir Sing, reported in 2012 AAC 3007 that tribunal does not have powers to review.

Reference may also be made to the ratio laid down by Hon'ble Apex Court in the case of CTO v/s Makkad Plastic Agencies, reported in AIR 2011 SCW 2154, wherein it is observed in para No.17 as under:-
“… It is also now an established proposition of law that review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible...”.


Bare reading of above referred observations of Hon'ble Apex Court reveals the fact that review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. As, there is no provision for review in the Motor Vehicles Act, 1988, award of the tribunal is not review-able.

On the above referred issue, reference may also be made to ratios laid down by Hon'ble Clacutta High Court in the case reported in 2008 ACJ 1248 (DB) and N.I.Com. v/s Chhabirani, reported in 2013 ACJ 1130 and ratio laid down by Hon'ble Gauhati High Court in the case reported in 2008 ACJ 1248 (DB) and N.I.Com. v/s Nani Gopal Debnath, reported in 2012 ACJ 2720.

25. Details of Proposal Forms for Private Cars/Motorised Two Wheelers- Package Policy and Liability Only/ Act Policy:-
25.1 Details above may be gathered from the India Motor Tariff. Pleased See Section- 5, PROPOSAL FORMS at page No.88 to 101.

26. Standard wordings in respect of the Policy including Premium computation Table, Certificate of Insurance and Cover Note:-
26.1. Details above may be gathered from the India Motor Tariff. Pleased See Section- 6, at page No.102 to 176.
26.1.1.Details can also be downloaded from IDRA web site by tying/searching 'India Motor Tariff'.

27.Liability of registered owner, in case where Vehicle in question is requisitioned by Government/Authority/Divisional Magistrate:-
The car in question was requisitioned during the Assembly Elections in the year 1993 by the Sub-Divisional Magistrate Rampur through the Deputy Commissioner, Shimla. The said vehicle was in possession as also under the control of the said officer. On or about 17.11.1993 while the Sub-Divisional Magistrate Rampur was travelling in the said vehicle, an accident occurred as a result whereof a boy named Satish Kumar sustained injuries. He later on expired. Under these circumstances, who would be responsible to pay amount of compensation? - State Government or the Owner-driver and Insurance company of the said Car?

After considering several judgments, Hon'ble Apex court has held that when a vehicle is requisitioned, the owner of the vehicle has no other alternative but to handover the possession to statutory authority/Government and once possession is handed over and the accident resulted due to the negligent driving of the driver of the Government, in such situation it cannot be said that the owner has any control over said vehicle and, therefore, under such situation, Owner and insurer are not liable to pay amount of compensation but State Government.

This ratio is laid down by Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Deepa Devi, reported in AIR 2008 SC 735.

In another case before the Hon'ble Apex Court - a Minibus was hired by the Corporation and said minibus was being driven by the driver provided by the registered owner and accident occurred. Driver was supposed to drive as per the instructions of the employee of the Corporation (Conductor), whether in such circumstances, insurance company can be held liable?
Hon'ble Apex in the case of …. reported in 2011 ACJ 2145, has held that under such situation, insurer is liable to pay amount of compensation.

In a case before Hon'ble Gujarat High Court the vehicle in question which belonged to the State of Gujarat was entrusted to the Municipality for distribution of water to the citizens. It was implicit in allowing the vehicle being used for such purpose that the State of Gujarat which owned the vehicle also caused or allowed any driver of the Municipality who was engaged in the work of distribution of water to the citizens, to use motor vehicle for the purpose and when the vehicle was driven by the driver of the Municipality the accident occurred because of the negligence of driver of Municipality. The issue before Hon'ble Court was as to whether the insurer of the vehicle is liable to pay the compensation under the provisions of the Act or not?

It is held that the State, as the owner of the vehicle and the respondent Insurance Company as its insurer were also liable to pay the compensation awarded by the Tribunal. This ratio is laid down by Hon'ble Gujarat High Court in the case of Chief Officer, Bhavnagar Municipality v/s Bachubhai Arjanbhai, reported in AIR 1996 Gujarat 51.

In a case before Hon'ble Apex Court the facts of the case was:- U.P. State Raod Transport Corporation took Minibus on hire from its owner for plying on the route alloted to Corporation by RTO. Said Minibua rammed into a shop resulting in death of five persons. According to agreement between the Corporation and owner of the Minibus, said bus was given on hire by owner of the bus along with insurance policy and driver would be provided by the owner and said driver was supposed to ply bus under the instructions of conductor appointed by the Corporation and as such Corporation was having overall and effective control on the Minibus and its driver. In a claim petition, insurer admits that premium for insurance of the Minibus was same if it is plied by the owner himself or attached with Corporation. It was not not even a case of the insurer that prior permission of the insurer was required before attaching Minibus with Corporation.

It is held that since Corporation has over all control of the Minibus, it became the owner of the vehicle for specified period and, therefore, insurer is liable to indemnify the owner i.e. Corporation.- Please refer to ratio laid down by Hon'ble Apex Court in the case of U.P. State Raod Transport Corporation v/s Kulsum, reported in 2011 ACJ 2145.




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