A.K.Banerjee, J. - (1.) This appeal has been preferred by the New India Assurance Co. Limited mainly on the two grounds which are as follows :- (i) Since the application under section 140 of the Motor Vehicles Act, 1988 has been dismissed, the application under section 166 of the Motor Vehicles Act, 1988 should have been dismissed on the grounds that it is barred by the principle of res judicata. (ii) The compensation awarded to the claimant was on the higher side and the Insurance Company is entitled to challenge the same in this appeal although there was no application made before the Court below for permission under section 170 of the said Act of 1988.
(2.) For disposal of the present appeal the relevant section of the said Act of 1988 which would come up for consideration are set out for ready reference. Section 140. Liability to pay compensation in certain cases on the principle of no fault :- (1) Where death of permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of (fifty thousand rupees) and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty-five thousand rupees). (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was to due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1), shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made or shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force. Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A. Section 163A. Special provisions as to the payment of compensation on structured formula basis.-Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death of permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. Section 166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be; Provided that they were all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or the benefit of all the legal representatives of the deceased and the legal representatives who have not so injured, shall be impleaded as respondents to the application. (2)Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occured, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed. Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) ****** (4) The claims Tribunal shall treat any report or accident forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act. Section 170. Impleading insurer in certain cases.-Where in the course on any injury, the Claims Tribunal is satisfied that- (a) there is collusion between the person making the claim and the person against when the claim is made. or (b) the person against whom the claim is made has failed to contest the claim. It may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
(3.) Under section 140 of the said Act, the claimant is entitled to have compensation for a fixed amount irrespective of the fact whether there has been any fault on the part of the owner or there was any other reason for rejecting the claim on factual basis.;