# on after multiplier of 18 (2100 x 12 x 18) = 4,53,600/ v. Loss of Estate

- **Citation:** (2021) 11 ILRA 1102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-07
- **Case number:** First Appeal From Order No. 570 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/on-after-multiplier-of-18-2100-x-12-x-18-4-53-600-v-loss-of-estate-46514
- **Pages:** 4

## Headnote

Motor Vehicles Act, 1988 - Section 163A -
Compensation on structured formula basis -
grant of compensation under Section 163-A of
the Act on the basis of the structured formula
is in the nature of a final award - adjudication
thereunder is required to be made without any
requirement of any proof of negligence of the
driver/owner of the vehicle(s) involved in the
accident - in a proceeding under Section 163-A
of the Act it is not open for the Insurer to raise
any defence of negligence on the part of the
victim - award under Section 163-A of the Act
is not open to be assailed on the ground that
the claimant was a tortfeasor or one guilty of
negligence (Para 11, 13)

Dismissed. (E-5)

Cases Relied on :

## Text

1102 INDIAN LAW REPORTS ALLAHABAD SERIES
ii
40 % of (i)
above to be
added
as
future
prospects
(Rs.
3000
+
1200)
=
Rs.
4200/-
per
month
iii
50 % of (ii)
deducted as
personal
expenses of
deceased
(Rs. 2100/-)
iv
Compensati
on
after
multiplier
of 18
(2100 x 12 x
18) = 4,53,600/-
v
Loss
of
Estate
Rs. 15,000/-
vi
Funeral
Expenses
Rs. 15000/-

Total
compensati
on awarded
Rs. 4,83,600/-

21. The claimants/appellants shall also be
entitled to 7% simple interest as awarded by
tribunal on the amount from the date of filing of
application till the date of actual payment.

22. Accordingly, the appeal filed by the
claimant/appellant is Partly Allowed and award
stands modified to the extent directed above and
the claimant/appellant shall be entitled for payment
of Rs. 483,600/- (four lacs eighty three thousand
six hundred) as determined above from the
opposite parties no 1 & 2 in the same proportion as
directed by the learned tribunal.

23. No order as to costs.
----------
(2021)12ILR A1102
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 570 of 2015

United India Insurance Co. Ltd. ...Appellant
Versus
Sri Niyamatullah & Anr. ...Respondents

Counsel for the Appellant:
T.J.S. Makker

Counsel for the Respondents:
Anshul Baranwal

Motor Vehicles Act, 1988 - Section 163A -
Compensation on structured formula basis -
grant of compensation under Section 163-A of
the Act on the basis of the structured formula
is in the nature of a final award - adjudication
thereunder is required to be made without any
requirement of any proof of negligence of the
driver/owner of the vehicle(s) involved in the
accident - in a proceeding under Section 163-A
of the Act it is not open for the Insurer to raise
any defence of negligence on the part of the
victim - award under Section 163-A of the Act
is not open to be assailed on the ground that
the claimant was a tortfeasor or one guilty of
negligence (Para 11, 13)

Dismissed. (E-5)

Cases Relied on :

1. National Insurance Company Ltd. Vs Sinitha Vs &
ors., (2012) 2 SCC 356

2. United India Insurance Co. Ltd. Vs Sunil Kumar &
anr., (2019) 12 SCC 398

3. Shivaji & anr. Vs Divisional Manager, United India
Insurance Co. Ltd. & ors., AIR 2018 SC 3705.

(Delivered by Hon'ble J.J. Munir, J.)

1. This case was directed to be listed in the
additional
cause
list
vide
order
dated
02.12.2021, but it has appeared in the daily
11 All. United India Insurance Co. Ltd. Vs. Sri Niyamatullah & Anr.
1103
cause list. Nevertheless, it is on the day's list and
is, accordingly, taken up.

2. Heard Mr. T.J.S. Makker, learned
counsel for the appellant and Mr. Anshul
Baranwal
appearing
on
behalf
of
the
respondents.

3. The appellant was a driver of a truck
bearing Registration No. UP 77 A 7454. He was
employed to operate the said vehicle by one
Mangali Prasad Gupta, who was the owner of
the truck. On 15.05.2013, he was plying the
vehicle between Sitapur and Kanpur. When the
truck was somewhere about the Police StationHasanganj in District-Unnao, a wild animal
suddenly jumped onto the road. The driver
endeavoured to save the animal, which led him
to collide with another truck. The accident led
the driver to suffer serious injuries. He sustained
fractures to both his lower limbs and presumably
to his spine (described in vernacular as 'kamar').
He was rushed to the Medical College at
Lucknow. The driver remained admitted to the
hospital from 29.05.2013 to 05.06.2013. By the
time, he preferred this claim, he was still
undergoing treatment. It was pleaded that as a
result of the accident, he was completely
handicapped. One of his legs was amputated
above the knee and now, he is not fit to do any
work in consequence of the injuries that he
sustained. He suffered mentally, physically and
economically,
besides
the
heavy
medical
expenditure that the treatment entailed. It is on
the foot of the aforesaid facts that the petitioner
instituting Claim Petition No. 334 of 2013 under
Section 163-A of the Motor Vehicles Act, 1988
(for short 'the Act').

4. Shorn of unnecessary detail, it must be
recorded that the owner of the truck, who was
impleaded as opposite party no. 1 to the claim
petition, denied the accident as also his liability.
It is further pleaded that the vehicle was insured
with the New India Insurance Co. Ltd., who
were impleaded as opposite party no. 2 to the
claim petition.

5. The Insurance Company, on their part,
denied all the assertions in the claim petition. It
was further asserted that the claim was, in any
case, exaggerated and brought on facts that were
concocted. The registration certificate, permit,
fitness of the vehicle etc. were questioned with
the assertion that if all those documents were not
in order, the insurance company would not be
liable, in any case. The validity of the driver's
licence was also put in issue.

6. The Tribunal, after framing as many as
seven issues and answering each, on the basis of
the evidence on record, found for the driver and
against the owner as well as the Insurance
Company. By the impugned judgment and
award, the claim was decreed for a sum of Rs.
6,23,292/- with 7% simple interest, payable
annually from the date of presentation of the
petition, till realization.

7. Aggrieved, the present appeal has been
preferred by the Insurance Company.

8. The only ground urged in support of the
appeal by Mr. T.J.S. Makker is that the claimant
being the Driver of the truck that met with the
accident was a tortfeasor and could not
capitalize on his own fault or negligence by
preferring a claim petition under Section 163-A
of the Act. He places reliance on the decision of
the Supreme Court in National Insurance
Company Ltd. vs. Sinitha vs. Others, (2012) 2
SCC 356, where it has been held:

"27. Thus, in our view, it is open to a
concerned party (owner or insurer) to defeat a
claim raised under Section 163-A of the Act, by
pleading and establishing anyone of the three
"faults", namely, "wrongful act", "neglect" or
"default". But for the above reason, we find no
plausible logic in the wisdom of the legislature, for
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
providing an additional negative bar precluding
the
defence
from
defeating
a
claim
for
compensation in Section 140 of the Act, and in
avoiding to include a similar negative bar in
Section 163-A of the Act. The object for
incorporating sub-section (2) in Section 163-A of
the Act is, that the burden of pleading and
establishing proof of "wrongful act", "neglect" or
"default" would not rest on the shoulders of the
claimant. The absence of a provision similar to
sub-section (4) of Section 140 of the Act from
Section 163-A of the Act, is for shifting the onus of
proof on the grounds of "wrongful act", "neglect"
or "default" onto the shoulders of the defence
(owner or the insurance company). A claim which
can be defeated on the basis of any of the aforesaid
considerations, regulated under the "fault" liability
principle. We have no hesitation therefore to
conclude, that Section 163-A of the Act is founded
on the "fault" liability principle.

33. From the preceding paragraphs
(commencing from para 22), we have no hesitation
in concluding, that it is open to the owner or
insurance company, as the case may be, to defeat a
claim under Section 163-A of the Act by pleading
and establishing through cogent evidence a "fault"
ground ("wrongful act" or "neglect" or "default").
It is, therefore, doubtless, that Section 163-A of the
Act is founded under the "fault" liability principle.
To this effect, we accept the contention advanced
at the hands of the learned counsel for the
petitioner."

9. Mr. Anshul Baranwal has submitted that
the law in National Insurance Company Ltd.
vs. Sinitha and Others (supra), is no longer
good law in view of the subsequent three-Judge
Bench decision of their Lordships of the
Supreme Court in United India Insurance Co.
Ltd. vs. Sunil Kumar and Another, (2019) 12
SCC 398.

10. In United India Insurance Co. Ltd. vs.
Sunil Kumar and Another (supra), a threeJudge Bench, of their Lordships has answered a
question referred by a two-Judge Bench, for
decision by a larger Bench, disagreeing with the
principle in National Insurance Company Ltd.
vs. Sinitha and Others (supra). In United India
Insurance Co. Ltd. vs. Sunil Kumar and
Another (supra), the question referred was
noted thus:

" 1. Unable to agree with the
reasoning and the conclusion of a two judge
bench of this Court in National Insurance
Company Limited vs. Sinitha and others, a
coordinate bench of this Court by order dated
29th October, 2013 has referred the instant
matter for a resolution of what appears to be the
following question of law.

"Whether in a claim proceeding under
Section 163-A of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act") it is 1
[(2012) 2 SCC 356]open for the Insurer to raise
the defence/plea of negligence?"

11. The question was answered in United
India Insurance Co. Ltd. vs. Sunil Kumar and
Another (supra), which is as under:

"..........8. From the above discussion,
it is clear that grant of compensation under
Section 163-A of the Act on the basis of the
structured formula is in the nature of a final
award and the adjudication thereunder is
required to be made without any requirement of
any proof of negligence of the driver/owner of
the vehicle(s) involved in the accident. This is
made explicit by Section 163-A(2). Though the
aforesaid section of the Act does not specifically
exclude a possible defence of the Insurer based
on
the
negligence
of
the
claimant
as
contemplated by Section 140(4), to permit such
defence to be introduced by the Insurer and/or
to understand the provisions of Section 163-A of
the Act to be contemplating any such situation
would go contrary to the very legislative object
11 All. Executive Engineer, Aasthai Yantrik Khand Vs. Ram Kali & Ors.
1105
behind introduction of Section 163-A of the Act,
namely, final compensation within a limited time
frame on the basis of the structured formula to
overcome situations where the claims of
compensation on the basis of fault liability was
taking an unduly long time. In fact, to
understand Section 163-A of the Act to permit
the Insurer to raise the defence of negligence
would be to bring a proceeding under Section
163-A of the Act at par with the proceeding
under Section 166 of the Act which would not
only be self-contradictory but also defeat the
very legislative intention.

9. For the aforesaid reasons, we
answer the question arising by holding that in a
proceeding under Section 163-A of the Act it is
not open for the Insurer to raise any defence of
negligence on the part of the victim."

12. The view in United India Insurance
Co. Ltd. vs. Sunil Kumar and Another (supra)
has been followed by a subsequent three-Judge
Bench in Shivaji and Another vs. Divisional
Manager, United India Insurance Co. Ltd. and
Others, AIR 2018 SC 3705.

13. In view of the aforesaid position of
law, that has now come to be settled, this Court
is of the opinion that the impugned award is not
open to be assailed on the ground that the
claimant was a tortfeasor or one guilty of
negligence on his part, and, therefore, could not
maintain a petition under Section 163-A of the
Act.

14. No other point was pressed.

15. Therefore, this appeal fails and stands
dismissed. There shall be no order as to costs.

16. The compensation deposited with the
Tribunal shall be disbursed to the claimant,
forthwith.
----------
(2021)12ILR A1105
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.12.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 901 of 2016

Executive Engineer, Aasthai Yantrik Khand
 ...Appellant
Versus
Ram Kali & Ors. ...Respondents

Counsel for the Appellant:
Standing Counsel

Counsel for the Respondents:
Rajesh Trivedi

A. Motor Vehicles Act, 1988 - Section 163A -
Claim petition - Driver not necessary party -
claim-petition u/s 163 A maintainable even if
the driver of the offending vehicle had not been
impleaded as a defendant - in proceedings
under Section 163-A, claimants is not required
to plead or establish any wrongful act, doing or
negligence on the part of either the owner or
the driver of the vehicle - driver of the
offending vehicle is not a necessary party and
proceedings shall not be vitiated because the
driver was not impleaded in the claim petition
if the owner of the vehicle had been impleaded
as a party - under Section 163-A, the liability to
pay compensation is of the owner and the
Insurance Company, the proceedings under
Section 163-A of the Act, 1988 will not be
vitiated merely because the driver of the
Vehicle was not impleaded as a party in the
claim case (Para 14, 15, 17, 19)

B. Civil law - Claim Petition - Motor Vehicles
Act, S.163A - U.P Motor Vehicles Rules, 1998,
Chapter IX, Rule 207, 208, 221 - Rules 9 to 13
and 15 to 30 of Code of Civil Procedure, 1908
shall, so far as may be, apply to proceedings
before the claims Tribunal - Civil Procedure
Code, O.5 R.9(3) - Delivery of summons by
court - where summons issued by the Court are
properly addressed, pre-paid and duly sent by