Mr.A.K.Soni, Advocate. v. KAMLA DEVI & ORS. .....

1. The present appeal is filed seeking to impugn the award dated 18.01.2012.

2. The brief facts which led to filing of the claim petition under Section 163 A of the Motor Vehicles Act, 1988 are that the deceased i.e. Mahender Singh on 19.09.2008 was driving his vehicle around Rajaji Marg, Delhi. A tree fell on the said vehicle as a result of which the deceased sustained fatal injuries. The vehicle was owned by respondent No.5. Respondents No. 1 to 4 are the legal heirs of the deceased who are said to be dependent on the deceased for livelihood. The claim petition was filed under Section 163 A of the Motor Vehicles Act.

3. Based on the evidence on record, the Tribunal awarded a total compensation of Rs.4,06,100/- as follows: 2014:DHC:6266 Loss of dependency: Rs.3,86,100/- Funeral Expenses: Rs.5,000/- Loss of consortium: Rs. 5,000/- Loss of estate: Rs.5,000/- Loss of love and affection: Rs.5,000/- Total: Rs.4,06,100/-

4. Learned counsel appearing for the appellant has made two submissions. He firstly submits that the present claim petition is barred under the ESI Act as admittedly the LRs of the deceased are receiving a pension of Rs. 6,000/- per month from ESI. It is further urged that respondent No.5 has paid a sum of Rs.[2] lacs vide cheque as compensation to respondent No[1]. Reliance is also placed on Section 2(8) and 53 of the ESI Act to contend that the present claim petition is barred. Secondly, it is stated that the personal deduction of 1/4th is erroneous.

5. As far as the first submission is concerned, reliance is placed as contended on Section 53 and Section 2(8) of the ESI Act. Section 53 reads as follows:- “53. Bar against receiving or recovery of compensation or damages under any other law-An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.”

6. Hence, Section 53 is applicable when the workman suffers an employment injury. An employment injury is defined under section 2(8) of the Act which reads as follows:- “(8)“employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;”

7. The Tribunal did not accept the said contention of the appellant holding that Section 163A is a non-obstante clause and would be applicable to the present facts.

8. Section 163A of the M.V. Act reads as follows:- “163A. Special provisions as to payment of compensation on structured formula basis. (1) 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 or 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.”

9. Hence Section 163 A of the M.V.Act which is inserted by an Amendment Act in 1994 would apply “notwithstanding anything contained in this act or in any other law for the time being in force or instrument having the force in law”.

10. In the above context, reference may be had to the judgment of three- Judges Bench of the Supreme Court in Deepal Girishbhai Soni and others, v. United Insurance Co. Ltd., Baroda AIR 2004 SC 2107. The Supreme Court held as follows: “66....In Section 163-A, the expression “notwithstanding anything contained in this Act or in any other law for the time being in force” has been used, which goes to show that the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of.”

11. Even otherwise, it is settled law that normally the later law, even though general, would prevail over the earlier law in case of conflict. Section 53 of the ESI Act was introduced by an Amendment of 1966 in the said statute. Section 163 A of the M. V. Act was introduced in 1994.

12. The Supreme Court in the case of ‘P. Raghava Kurup and Anr. vs.

V. Ananthakumari and Ors. (2007) 9SCC 179: MANU/SC/0933/2007’ “13. Our attention was invited to a decision of this Court in S. Prakash and Anr. v. K.M. Kurian and Ors. MANU/SC/0348/1999MANU/SC/0348/1999: [1999]3SCR610 their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application. Their Lordships have further held by referring to an earlier decision of this Court in Ajoy Kumar Banerjee and Ors. v. Union of India and Ors. MANU/SC/0263/1984MANU/SC/0263/1984: (1984)ILLJ368SC as follows: The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:

(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlier enactment.