New India Insurance Co. Ltd v. Leela — 1995 DIGILAW 338 (KER)

Judgment :- Usha J. Challenge in this appeal at the instance of New India Assurance Co. Ltd. is against the interim award passed by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P.(MV) No. 235/94 granting an amount of Rs. 25,000/- to respondents 1 to 5 under section 140 of the Motor Vehicles Act as compensation for the death of the husband of 1st respondent, father of respondents 2 to 4 and son of 5th respondent. 2. Certain facts are admitted in this case. An accident happened on 9.1.1994 out of the use of a motor vehicle which resulted in the death of one Ramachandran Pillai, husband of 1st respondent, father of respondents 2 to 4 and son of 5th respondent. It is also admitted that a claim has been put forward by respondents 1 to 5 against the owner of the vehicle impleaded as 1st respondent and insurance company impleaded as 2nd respondent. It is contended by the appellant that no interim award under Sec. 140 can be granted in this case as, according to the appellant, the accident happened due to the negligence on the part of late Ramachandran Pillai who was driving the vehicle at the time of the accident. It was also contended that late Ramachandran Pillai was real owner of the vehicle and therefore the claim petition itself is not maintainable. 3. We will first consider the second objection to the interim award viz., late Ramachandran Pillai himself was the owner of the vehicle. Admittedly in the registration certificate 1st respondent before the tribunal is shown as owner of the vehicle. It is also the case of the insurance company that the insurance policy is in the name of the 1st respondent. Except a reference made by the brother-in-law of late Ramachandran Pillai in the first information statement given before the police that two days before the accident Ramachandran Pillai had acquired ownership over the vehicle, there is no material on the basis of which the appellant could contend that the 1st respondent before the Tribunal was not the owner of the vehicle at the time of the accident. The 1 st respondent had not put forward such a contention before the Tribunal. The 1 st respondent had not put forward such a contention before the Tribunal. Therefore, we are inclined to take the view that the Tribunal has correctly concluded on the basis of the materials available before it at the time of passing an interim award under Sec. 140 that the 1st respondent before the Tribunal was the owner of the vehicle. 4. Elaborating the first objection the learned counsel appearing on behalf of the appellant submitted that if late Ramachandran Pillai was the wrongdoer in the sense that the accident happened due to his negligence, there is no principle of law which would support a claim put forward by his legal heirs for compensation on his, death as a result of the accident. He contended that even the liability cast under Sec. 140 of the Motor Vehicles Act, 1988 will not ensure to the benefit of the wrongdoers or legal heirs of the wrongdoer. According to the learned counsel, provisions under the section are to be understood in the light of the statement of objects and reasons of the amending Act 47 of 1982, which introduced Sec.92-A under the old Act, which reads as follows: "Having regard to the nature of circumstances in which road accidents take place, in a number of cases it is difficult to secure adequate evidence to prove negligence. Further, in what are known as 'hit and-run' accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions, first, for compensation without proof of fault or negligence on the part of the owner of driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown." In support of the above contention the learned counsel relied on a Division Bench decision of Madras High Court in K. Nandakumar V. Managing Director, Thanthai Periyar Transport Corporation Ltd. Villupuram,1992 ACJ 1095, In the above case there was a collision between a bus and motorcycle due to the negligence on the part of thee motorcyclist and he sustained injuries. The court took the view that a person can make a claim for compensation against another only when the other person is at fault and not when he alone is at fault. May be in view of certain circumstance, he is unable to prove the fault on the part of another person, from whom he claims compensation. Only in such a case Section 92-A of the Act steps in and says that despite the above said fact of inability to prove the negligence of the other party, he will be entitled to a particular minimum compensation. While arriving at the above conclusion the learned judges of the Madras High Court dissented from a judgment of this court in K.P. Ali and another v. M. Madhavan and others, 1990 ACJ 373, awarding compensation under Sec.92-A to legal heirs of the deceased victim who was found solely responsible for the accident and there was no negligence on the part of the other party. 5. Reliance was also placed by the appellant on another decision of the Madras High court-in New India Assurance Co. Lt.v. Meenal and others, 1993 ACJ 582. The view taken in the above decision is that when the death of driver of a car which met with an accident due to his own negligence and when no wrong or tort committed by the owner of the car has been pleaded or proved by the claimants the insurance company cannot be made -liable. But going through the above judgment we do not find that it was a case coming under Section 92-A of the old Act or Section 140 of the present Act. Kunjuraman Nair v. Managing Director, Nesamony Transport Corporation Ltd. and another, 1995 ACJ 413, is another decision of the Madras High Court relied on by the appellant. In the above case when the claimant attempted to board a moving bus he fell down and hit an electric post. It was found that he sustained injuries due to his own negligence. His claim for compensation under the principle of no fault liability was rejected following the decision 1992 ACJ page 1095 (Supra). 6. Lastly, the learned counsel referred to a decision of this Court in Thomas v. Mathew, 1995 (2) KLT page 260, in order to substantiate his contention. It was found that he sustained injuries due to his own negligence. His claim for compensation under the principle of no fault liability was rejected following the decision 1992 ACJ page 1095 (Supra). 6. Lastly, the learned counsel referred to a decision of this Court in Thomas v. Mathew, 1995 (2) KLT page 260, in order to substantiate his contention. Relying on the following sentence "Hence in our view when the law declared that owners of both vehicles shall "jointly and severally" be liable, what is envisaged is the liability to third persons and not between themselves" the learned counsel contended that no fault claim can be put forward under Sec. 140 only by a third party and not by the legal heirs of the driver of the vehicle who dies in an accident happened due to his negligence. In the above case there is a collision between two vehicles. After trial it was found on evidence that the collision happened due to the negligence on the part of the persons who was riding the scooter, one of the vehicles involved in the collision, and it was the very same person who put forward the claim under Sec. 140. A Division Bench of this court held that under S.140(1) when more than one vehicle is involved in the accident owners of both vehicles are "jointly and severally" liable to pay compensation in respect of the accident under the "no fault" principle. Joint and several liability is understood in law as an equal liability which does not telescope into each other and that such liability is by and large to third parties and not against each other. The Division Bench observed that "the legislature has never contemplated the contingency where claimant himself is one of the persons liable to meet the claim". 7. It was contended on behalf of respondents 1 to 5 claimants that when an application is considered under Sec. 140 an enquiry into the question whether the claimant was negligent or not is not contemplated. In support of the above contention the learned counsel appearing on behalf of respondents 1 to 5 relied on a decision of the Supreme court in Shivaji Dayanu Patil and another v. Smt. Vatschala Uttam More, AIR 1991 SC pare 1769. Reliance was also placed on a decision of the Madya Pradesh High Court in Dwarika v Biso and others, 1990 ACJ 283. Reliance was also placed on a decision of the Madya Pradesh High Court in Dwarika v Biso and others, 1990 ACJ 283. He contended that the decision in 1995 (2) KLT 260 has no application to the facts of the present case, where the liability was to be shared jointly and severally between two owners and one owner and put forward a claim. It was also a case where after evidence adduced the court came to the conclusion that the claimant was guilty of negligence. 8. Section 140 of the Motor Vehicles Act, 1988 reads as follows: "140. Liability to pay compensation in certain cases on the principle of no fault - (1) Where death or 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 vehicle shall, or, as the case may be, the owners 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 twenty-five 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 twelve thousand rupees. (3) In any claim for compensation under sub-section (1) the claimant shall not be required too plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (3) In any claim for compensation under sub-section (1) the claimant shall not be required too plead and establish that the death or permanent disablement in respect of which the claim has been made was 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 a reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor 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." By a mere reading of the section it can be seen that an enquiry into the question as who was responsible for the accident or on whose negligence the accident happened is not contemplated at all. The Supreme Court had occasion to consider in detail the scope of the inquiry contemplated under Sec.92-A of the Motor Vehicles Act (4 of 1939) which contained provisions similar to Sec.140 of 1988 Act. After referring to the provisions contained under Sec.92-A and the relevant rules issued by the Maharashtra Government as amended the Supreme Court observed as follows: " The object underlying the enactment of Section 92 A is to make available to the claimant compensation amount to the extent of Rs. 15.000/- in case of death and Rs. 7,500/ - in case of permanent disablement as expeditiously as possible and the said award has to be made before adjudication of the claim u/s.110A of the Act. This would be apparent from the provisions of S.92B of the Act. S.92B(2) of the Act provides that a claim for compensation U/S.92A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement u/S.92A and also in Insurance of any right on the principle of fault, the claim for compensation under S.92A shall be disposed of as aforesaid in the first place. With a view to give effect to the said directive contained in S.92B of the Act, the Maharashtra Government has amended the Rules and has inserted special provisions in respect of claims under S.92A in Rules 291A,291B,297(2), 306 A, 306B, 306C and 306D of the Rules. The object underlying the said provisions is to enable expeditious disposal of a Claim petition u/ S.92A of the Act. The said object would be defeated if the Claims Tribunal is required to hold a regular trial in the same manner as for adjudicating a claim petition u/S.110A of the Act. Moreover, for awarding compensation u/S.92A of the Act. the claims Tribunal is required to satisfy itself in respect of the following matters: i) an accident has arisen out of the use of a motor vehicle; ii) the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose legal representative is making the claim. iii) the claim is made against the owner and the insurer of the motor vehicle involved in the accident. 9. Under Rule 291A which was inserted in the Maharashtra Rules after the enactment of Sec.92-A, it was provided as follows: " Notwithstanding anything contained in R.291, every application, for a claim under S.92A shall be filed before the Claims Tribunal in the triplicate and shall be signed by the appellant and the following documents be appended to every such application namely, i) Panchnama of the accident, ii) First information report; iii) Injury Certificate or in case of death post mortem report or death certificate and; iv) A certificate regarding ownership and insurance particulars of vehicle involved in the accident from the Regional Transport Officer or the Police. Old Rule 297 was substituted by adding necessary provisions as follows: " 2. Where the applicant makes a claim for compensation u/s.92-A, the Claims Tribunal shall give notice to the owner and insurer, if any, of the vehicle involved in the accident directing them to appear on a date not later than ten days from the date of issue of such notice. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claims application filed by the claimant. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claims application filed by the claimant. The Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date the Tribunal will, proceed ex parte on the presumption that they have no. contention to make against the award of compensation". Rule 306A empowers a Claims Tribunal to obtain whatever supplementary information and documents which may be found necessary from the police, medical and other authorities and proceed to award the claim. The Supreme Court took the view that documents referred to in Rules 291A and 306B would enable the Claims Tribunal to ascertain the necessary facts for granting award under Sec.92A. Panchnama and first information report will show whether accident had arisen out of the use of the motor vehicle in question. The injury certificate or post mortem report will show the nature of injuries and cause of death. Registration certificate and insurance certificate of the motor vehicle will indicate who was the owner and insurer of the vehicle. In the event of the Claims Tribunal doubts about the genuineness of these documents or if it considers necessary to obtain supplementary information and document, Rule 306A empowers the Claims Tribunal to obtain supplementary information or document from the police, medical or other authorities. Therefore, the Supreme Court held that in view of the special provisions the Claims Tribunal is not required to follow the normal procedure prescribed under the Act and Rules with regard to the adjudication of a claim under Sec. 110A of the act for the purpose of making an order of a claim petition under Section 92-A. 10. Rule 393 of the Kerala Motor Vehicles Rules, 1989 contains more or less identical provisions as the Maharashtra Rules. It reads as follows: "393. Award of claims XQGHU section 140. Rule 393 of the Kerala Motor Vehicles Rules, 1989 contains more or less identical provisions as the Maharashtra Rules. It reads as follows: "393. Award of claims XQGHU section 140. The Claims Tribunal shall proceed to award the claims under section 140 of the Act on the basis of the following: 1) Registration certificate of the motor vehicles involved in the accident; 2) Insurance certificate or policy relating to the insurance of the vehicle against Third party risks; 3) Copy of the First Information Report; 4) Post-mortem Certificate or certificate of injury from the Medical Officer and 5) The nature of treatment given by the Medical Officer, who has examined the victim." The above would show that neither the section nor the rules contemplate fixation of negligence on any person while granting no fault claim in a motor vehicle accident. With great respect to the learned judges of the Madras High Court it has to be said that their Lordships have not considered the scope of enquiry in a no fault claim under Section 92-A as explained by the Supreme Court in AIR 1991 SC. 1769 (Supra). 11, In Neeli v.Padmanabha Pillai 1992 (2) KLT 807, a Full Bench of this Court had occasion to consider the nature of the liability under Section 92-A of the Motor Vehicles Act, 1939. This Court observed as follows: " The authors emphasise that" no fault' liability is outside the tort system. Therefore, it has nothing to do with causing or not causing harm, nor with fault or no fault and is not akin to a theory of absolute liability such as the one in Rylands v. Fletcher (1868) LR.3H..L.330, within the tort-system. It is a new liability created by statute and upon such creation, gives rise to a corresponding right to the victim or his legal representatives to claim the amounts covered by S.92-A." "S.92-A(3) does not refer to dispensing with pleading and proof of negligence in a claim within the tort-system. It refers to a claim under S.92-A(1) which is a creature of statute and outside the tort - system and it is there-in the new system, that one need not plead or prove negligence etc." "21. Again, S.92-A(3) does not deal with mode of proof of a fact within the preexisting tort-system. It refers to a claim under S.92-A(1) which is a creature of statute and outside the tort - system and it is there-in the new system, that one need not plead or prove negligence etc." "21. Again, S.92-A(3) does not deal with mode of proof of a fact within the preexisting tort-system. It does not say that negligence which requires to be proved in that system shall be presumed if certain other facts are proved. As stated above, S.92-A(3) explains how the claim in regard to the new liability created under S.92-A(1), could be imposed. -Hence S.92-A(3) does not deal with any matter relating to mode of proof of negligence within the tort system". 12. In coming to the above conclusion this Court relied on the decision of the Supreme court in G.S.R.T. Corporation, Ahmedabad v. Raman Bhai, AIR 1987 SC 1690. The above decision also would clearly show that no fault liability under Section 140 being one created by the statute outside the law of tort, there is no necessity to enter into an enquiry as to who was the wrong doer. In 1990 ACJ 283 (Dwarika v. Biso and others) Madhya Pradesh High Court has also taken the view that the scope of enquiry under Section 92-A is very much limited. It was held that at that stage the Tribunal was not bound to inquire into or record a finding as to sustainability or otherwise of the objections raised by the insurance company that it was not liable at all. If the factum of the accident itself was denied then it may be open to the Tribunal; to hold a summary enquiry to form an opinion whether the accident did take place and whether the vehicle in question was involved in the accident or not. If form the evidence collected in such summary enquiry and other material available on record, the Tribunal is prima facie satisfied that the accident did take place and the vehicle in question was involved therein, it was held that the Tribunal shall have jurisdiction to make an interim award under Section 92-A fixing joint and several liability on the insurer along with the insured. After trying claim on merits while expressing a final opinion and passing an award under S.110B of the Act, the Tribunal would not be bound by the opinion recorded earlier at the time of making the interim award under Section 92-A . Even though the above decision of the Madhya Pradesh High Court was rendered earlier, the dictum laid down therein is the same which we get from AIR 1991 SC page 1769 (Supra). 13. Now we will examine the decision of this Court in 1995 (2) KLT 260 (Supra) on which substantial reliance was placed by the appellant. From the narration of the facts in the above case it is seen that interim award under S.140 was granted in the above case after a full trial on the basis of which the Tribunal entered a finding that the accident happened due to the negligence of the owner/ driver of one of the vehicles involved in the accident and who himself is a claimant. The Division Bench therefore considered the question of joint and several liability between the claimant who was the owner/ driver of one of the vehicles along with the driver and owner of the second vehicle involved in the accident. The Division Bench had no occasion to consider the question of the scope of enquiry to be made by the Tribunal at the stage of granting an award under Section 140 as was considered by the Supreme Court. Therefore we have to understand the decision of the Division Bench in the facts of that case. It cannot be taken that the Division Bench has laid down a dictum that even at the time of granting an award under S.140 and enquiry into the question as to whether there was negligence on the part of the claimant was to be made in view of the clear exposition of law by the Apex Court in AIR 1991 Sc. 1769 (Supra). 14. In the light of the above discussion we are inclined to take the view that there is no merit in the contentions raised by the appellant/ insurance company against the interim award by the Tribunal under S.140. Appeal therefore fails and it stands dismissed.