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2001 DIGILAW 525 (MP)

SUBHASH CHAND JAIN v. ANIL KUMAR JAIN

2001-07-20

N.G.KARAMBELKAR, S.P.SRIVASTAVA

body2001
S. P. SRIVASTAVA, J. ( 1 ) FEELING aggrieved by the rejection of his claim petition for the award of compensation in the proceedings under the Motor Vehicles Act, claimat-appellant has now approached this court seeking redress praying for setting aside of the impugned order and awarding an amount of Rs. 3,70,742 as compensation along with interest thereon calculated at the rate of 18 per cent per annum. ( 2 ) WE have heard the learned counsel for the appellant as well as the learned counsel representing the insurer. In spite of service of the notice, none has appeared for the respondent No. 2, the owner and the respondent No. 1, the driver, of the motor vehicle in question. ( 3 ) THE facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass: A claim petition seeking award of the compensation was filed under section 140 as well as under section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), on 23. 12. 1995, by the appellant claiming a total amount of Rs. 3,70,742 along with interest thereon at the rate of 18 per cent per annum. An award of the compensation of an amount of Rs. 25,000 was also claimed under section 140 of the said Act. ( 4 ) THE claimant had asserted that on 2. 7. 1995, at about 12 in the noon while he was coming on a scooter belonging to the owner, the respondent No. 2, which was being driven by the driver, the respondent no. 1, in a rash and negligent manner, the said scooter fell down while manoeuvring the vehicle for saving the cow which had suddenly come running from a gali. The claimant had fallen down from the motor vehicle which caused injury in his right leg and the bone of pelvis (kulha) got broken which ultimately resulted in the permanent shortage of his leg. ( 5 ) IN para 22 of the application, an award of an amount of Rs. 25,000 was claimed on 'no fault basis' as contemplated under section 140 of the Motor Vehicles act. ( 6 ) THE claim of the appellant was contested by the insurer denying the applicant's claim either under section 140 of the Act, or under section 166 of the Act. 25,000 was claimed on 'no fault basis' as contemplated under section 140 of the Motor Vehicles act. ( 6 ) THE claim of the appellant was contested by the insurer denying the applicant's claim either under section 140 of the Act, or under section 166 of the Act. ( 7 ) THE claimant examined himself as pw 1 and had also examined the doctor as pw 2. In his deposition before the tribunal he had admitted that while he was travelling on the motor vehicle in question as a pillion rider, in the way a cow had suddenly appeared running from a gali and in the process of saving that cow from being hit the scooter had fallen down. ( 8 ) THE Motor Accidents Claims Tribunal on an appraisal of the evidence and the materials brought on record came to the conclusion that it could not be held that the accident had occurred on account of rash and negligent driving or any carelessness. Since, the Tribunal had come to the conclusion that the claimant had not been able to prove the negligence which was an essential element for justifying the award of compensation in the proceedings under section 166 of the Act based on common law principles, it was held that the claimant was not entitled to any amount towards the compensation. However, the Tribunal believed that part of the statement of the claimant whereunder it had been specifically stated that in the accident in question his pelvis bone had broken and he had received injuries in his leg. The Tribunal further did not accept the case of the claimant that accident had resulted in permanent disability to the extent of 40 per cent. On the aforesaid finding the Tribunal rejected the claim petition of the appellant vide the order dated 25. 9. 1997. ( 9 ) IT may be noticed that the case of the appellant for the award of the compensation on 'no fault basis' as envisaged under section 140 of the Act, was considered by the Tribunal on merits and allowed vide the judgment and order dated 15. 7. 1996, whereunder the insurer had been directed to pay an amount of Rs. 25,000 to the claimant. 7. 1996, whereunder the insurer had been directed to pay an amount of Rs. 25,000 to the claimant. ( 10 ) THE insurer has not filed any appeal against the order awarding compensation on 'no fault basis' in the proceedings under section 140 of the Act, and that order has since attained finality. ( 11 ) WE have carefully perused the record. ( 12 ) THE findings returned by the Tribunal in regard to the absence of negligence so as to sustain a claim petition under section 166 of the Act does not suffer from any such legal infirmity which may justify any interference therein. ( 13 ) IT may further be noticed that the principle underlying the provisions contained in section 140 of the Act, casting a statutory liability on the owner of the vehicle to pay compensation of a fixed amount in certain cases on the principle of 'no fault' has in fact been considerably extended by incorporating in the Act, the section 163-A, after making a corresponding amendment in section 140 sub-section (5)of the Act under which the entire amount paid under the provisions contained in section 140 of the Act, providing that the amount of such compensation was liable to be reduced from the amount of compensation given in any other law or even under section 163-A of the Act. ( 14 ) IT may be noticed that in a recent decision of the Apex Court in the case of rita Devi v. New India Assurance Co. Ltd. , 2000 ACJ 801 (SC), while noticing the implications arising under section 163-A of the Motor Vehicles Act, the Supreme court had emphasised that a victim of the motor accident or his heirs are entitled to claim from the owner/insurance company, a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle (emphasis supplied) without having to prove wrongful act or neglect or default of anyone. Observing so, it was indicated that if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of the motor vehicle, then they will be entitled for payment of compensation. Observing so, it was indicated that if it is established by the claimants that the death or disablement was caused due to an accident arising out of the use of the motor vehicle, then they will be entitled for payment of compensation. Going further while interpreting the implications, it was clarified that from the expression 'death due to accident arising out of the use of the motor vehicle', a distinction was drawn between accidental murder and death holding that if during the course of duty of the driver of the motor vehicle, the passengers decide to commit an act of felony of stealing the motor vehicle and in the course of achieving the said stealing the motor vehicle the had to eliminate the driver of the motor vehicle, then it could not be said that the death so caused to the driver of the motor vehicles was an accidental murder, finding that the death of the driver was caused accidentally in causing the theft of the motor vehicle and further that the expression 'caused by' and the expression 'arising out of had a wider connotation. Reiterating its earlier view that the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement was not required to be direct and proximate and it can be less immediate, the award of the Motor Accidents claims Tribunal was upheld holding that the murder of the deceased driver was due to an accident arising out of the use of the motor vehicle. ( 15 ) WE are of the clear opinion that taking into consideration the observations made by the Supreme Court in its decision in the case of Gujarat State Road Trans. Corpn. ( 15 ) WE are of the clear opinion that taking into consideration the observations made by the Supreme Court in its decision in the case of Gujarat State Road Trans. Corpn. v. Ramanbhai Prabhatbhai, 1987 acj 561 (SC), as well as Rita Devi, 2000 acj 801 (SC), there can be no 'escape from the conclusion that the provisions contained in section 140 or 163-A of the act, cannot be taken to be procedural in nature and from the apparent legislative intent it has to be held that there has been a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or the driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident and to that extent, the substantive law of the country stands modified. ( 16 ) THE provision contained in section 140 (5) of the Motor Vehicles Act, 1988, is to the following effect:"140. Liability to pay compensation in certain cases on the principle of no fault. (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 163-A. " ( 17 ) THE aforesaid proviso, however, does not in any manner affect the determination of the amount of 'just compensation' as contemplated under section 168 of the Act, on the principle of 'fault liability' under the law of Torts for which it is essential to establish culpable negligence. This amount may be higher than the amount determined either in the proceeding under section 140 of the Act or in the proceeding under section 163-A of the Act. This amount may be higher than the amount determined either in the proceeding under section 140 of the Act or in the proceeding under section 163-A of the Act. But in both the cases, in the event of the amount determined towards the 'just compensation' in the proceeding under section 166 of the Act, being higher than the amount found payable either under section 140 of the Act or under section 163-A of the Act, the said amount has to be reduced by the amount found payable either under section 140 of the Act or under section 163-A of the Act. ( 18 ) HOWEVER, in case the claimant is not able to establish the negligence and is not found entitled to any compensation on fault basis, the decision in this regard cannot affect the liability which stands statu-torily fixed on the owner and the insurer/indemnifier in regard to the payment of the compensation on 'no fault' basis contemplated under section 140 of the Act or under section 163-A of the Act. ( 19 ) IT may be noticed that the provisions contained in section 140 of the Act, contemplate awarding of lump sum amount statutorily fixed. ( 20 ) IN view of our conclusions indicated hereinabove, this appeal is dismissed subject to the observation that the order passed by the Tribunal dated 15. 7. 1996 allowing the grant of the compensation to the claimant envisaged under section 140 of the Act shall remain undisturbed and the said amount will not be refundable. Appeal dismissed. .