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2003 DIGILAW 522 (ORI)

Ganapati Prasad Verma v. Brundaban Biswal

2003-08-22

P.K.MOHANTY

body2003
JUDGMENT P. K. MOHANTY, J. — These two appeals having arising out of a common judgment and common question of law and fact being involved, on the prayer and consent of the learned counsel for the parties, they are taken up and disposed of by this common judgment. Misc. Appeal No. 412 of 2000 is by the owner of the offend¬ing scooter against the award whereas Misc. Appeal No. 473 of 2000 is by the claimant to set aside the award. 2. The claimant, appellant in Misc. Appeal No. 473 of 2000 filed a Misc. Case before the 2nd M.A.C.T. (S.D.) Berhampur for compensation of a sum of Rs. 1,20,000/- for having sustained injuries in course of the accident caused by the Respondent-appellant in Misc. Appeal No. 412 of 2000. Short facts are that the claimant was proceeding towards Berhampur University from Mandiapalli by riding a cycle slowly on the left side of the road. The respondent who was the professor of Zoology of Berhampur University was coming from University side towards Fishery College by driving his scooter bearing Registration No. OSG 400 at a very high speed without blowing horn in a rash and negligent manner, for which he could not control the said scooter and suddenly proceeded towards rights extremity of the road and dashed against the claimant with violent force. Due to impact, the claimant was knocked down from the cycle and was dragged by the scooter to a considerable distance and sustained severe head injury and other injuries and became unconscious. The claimant was successively treated as M.K.C.G. Medical College Hospital and at S.C.B. Medical College Hospital on reference. It is alleged that due to the accident his left side face became paralysed and disfigured and left side body became functionless and eye-sight was reduced due to the injury to the eye. After scanning of the skull, the doctor detected that one vein was cut inside the brain and the claimant had to continue treatment throughout his life. A criminal case was also registered for the said accident vide Gopalpur P.S. Case No. 51 of 1994 corresponding to G.R. Case No. 363 of 1994. The vehicle was not insured and as such, the owner of the vehicle was liable for the compensation. It was alleged that the claimant was earning a monthly income of Rs. A criminal case was also registered for the said accident vide Gopalpur P.S. Case No. 51 of 1994 corresponding to G.R. Case No. 363 of 1994. The vehicle was not insured and as such, the owner of the vehicle was liable for the compensation. It was alleged that the claimant was earning a monthly income of Rs. 2,000/- as a wall painter under a contractor and he had to incur a loan of Rs. 50,000/- towards treatment. The owner of the scooter who was riding the same while the accident took place, in his written statement denied the allegations, inter alia, on the ground that the Police investigation reveals that the accident was due to the fault of the claimant, he was not a wall painter under a contractor and has never spent RS. 50,000/- towards his treat¬ment. It is his specific case that the claimant was riding a bicycle on hire, when he was in a drunken state and hearing the horn of the scooter, the claimant immediately turned his bicycle within a fraction of second and caused the accident. Both the claimant and the driver of the scooter were moving in the same direction that is towards Mandiapali, but not in the opposite direction. The respondent himself arranged one trolley-rickshaw and sifted the claimant to Bhanj Vihar and personally reported the matter to the O.I.C., Bhanj Vihar Outpost and then shifted him to M.K.C.G. Medical College Hospital, Berhampur. 3. On the pleadings of the parties, the Tribunal framed four issues as below : ISSUSES (1) Whether the vehicle bearing Registration No. OSG 400 (Scoot¬er) was being driven in rash and/or negligent manner causing injuries to the petitioner ? (2) Whether the petitioner is entitled to compensation and if so, what should be the quantum thereof ? (3) Whether the claim is entertainable as against the respondent ? (4) To what relief ? 4. On consideration of the materials record the Tribunal came to the conclusion that the claimant has failed to prove that the respondent was rash and negligent while driving the offending scooter. On issue No. 2, however, the Tribunal found that the injured can be taken to be a permanently disabled person without any convincing evidence from the side of the respondent. The petitioner can recover his eye-sight. In so finding, the Tribunal held that the claimant is entitled to get compensation of Rs. On issue No. 2, however, the Tribunal found that the injured can be taken to be a permanently disabled person without any convincing evidence from the side of the respondent. The petitioner can recover his eye-sight. In so finding, the Tribunal held that the claimant is entitled to get compensation of Rs. 25,000/- according to the provision of Section 140(1) of the Motor Vehicles Act. In view of the provisions contained in Sub-section (3) thereof, since in such an event he is not required to plead and establish that his permanent disablement was due to any wrongful act, neglect or default of the owner of the vehicle. 5. Mr. G. P. Mohanty, learned counsel for the claimant (appellant in Misc. Appeal No. 473 of 2000), in addition to as¬sailing the finding of fact with regard to negligence of the driver of the scooter and other factual findings, has argued that the claimant had filed an application under Section 166 of the Motor Vehicles Act, whereas under a misconception of law, the Tribunal has passed an order under Section 140 of the Motor Vehicles Act, which is impermissible in law and that was done only to satisfy the owner of the scooter. According to the learned counsel, the judgment and award is passed without appli¬cation of mind, on extraneous consideration, which vitiates the award. 6. Mr. S. D. Das, learned counsel for the appellant in Misc. Appeal No. 412 of 2000 assails the judgment and award passed by the Tribunal mainly on the ground that the Tribunal having held that the appellant was not rash and negligent while driving the scooter, it could not have saddle the liability on the appellant. It is further urged that in view of Section 140(2) of the Motor Vehicles Act, in case of permanent disable¬ment, the claimant is entitled to a sum of Rs. 12,000/- since the accident having occurred on 4.5.1994 prior to the amendment enhancing the liability to Rs. 25,000/- which came into force with effect from 14.11.1994. Both the appellants have challenged the award on several other grounds, but the main crux of the case is as to whether the findings and the conclusion arrived at by the Tribunal can be sustained in law, the claim application under Section 16 of the M.V. Act having been treated as an application under Section 140 thereof and disposed of as such. 7. 7. Section 166 of the M.V. Act contemplates an application for compensation arising out of an accident of the nature speci¬fied in Sub-section (1) of Section 165 and may be made by the person who has sustained the injury or by the owner of the property or where death has resulted form the accident by all or any of the legal representatives of the deceased or 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. Under Sub-section (2) thereof, 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 occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or caries 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. Under the proviso thereof, 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, Sub-section (4) however, authorises the Claims Tribunal to treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act. Section 140 of the Act impose a liability in certain cases for no fault. Section 140 of the Act may be quoted hereunder : “140. Liability to pay compensation in certain case 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 vehi¬cle 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 (fifty thousand rupees) and the amount of compensa¬tion payable under that Sub-section in respect of the permanent disablement of any person shall be a fixed sum of (twenty-five thousand rupees). (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 compensa¬tion 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 (2) the claimant shall not be required to plead and establish that the claim has been 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 vehicle con¬cerned 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 nor shall the quantum of compensation recov¬erable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsi¬bility 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 compensa¬tion payable under this section or under Section 163-A. Section 141 of the Act however, contemplates the other right to claim compensation for death or permanent disablement. Howev¬er, in view of Sub-section (1) of Section 141, in respect of death or permanent disablement of any person shall be in addition to any other right to claim under the scheme referred to Section 163-A such other right thereafter in this section referred to as the right on the principle of fault to claim compensation in respect thereof under any other provisions of this Act or of any other law for the time being in force. Sub-section (3) of Section 141 may be quoted hereunder : “(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation in accordance with the right on principle of fault, the person so liable shall pay the first-mentioned compensation and (a) If the amount of the first mentioned compensation is less than the amount of the second mentioned compensation he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation; (b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second mentioned compensation, he shall not be liable to pay the second mentioned compensation; 8. In view of the provision of Section 141 read with Section 140 of the M.V.Act, there is no room for doubt that the claim of compensation under Section 140 of the M.V. Act in re¬spect of death or permanent disablement of any person is in addition to the claim of compensation under any other provisions of the Act or any other law for the time being in force. 9. The claimant filed an application for grant of compen¬sation under Section 166 of the Motor Vehicles Act on 7.10.1994 and in Column-30 thereof, it has been specifically answered ‘NO’ to the question whether any application under Section 19-A of the Motor Vehicles Act or under Section 140 of the M.V.Act has been filed. In such view of the matter, the Tribunal could not have disposed of the application under Section 166 of the M.V.Act as an application under Section 140 thereof. In assuming that the application was under Section 140 of the Act, the Tribunal could not have awarded a sum of Rs. 25,000/- towards no fault liability as against the owner of the offending scooter since on the date of accident i.e. 4.5.1994 under Section 140 of the Act, the amount payable as compensation towards no fault liability was limited to Rs. 12,000/- which was subsequently with effect from 14.11.1994 raised to Rs. 25,000/-. 10. 25,000/- towards no fault liability as against the owner of the offending scooter since on the date of accident i.e. 4.5.1994 under Section 140 of the Act, the amount payable as compensation towards no fault liability was limited to Rs. 12,000/- which was subsequently with effect from 14.11.1994 raised to Rs. 25,000/-. 10. In any view of the matter, the Tribunal has proceeded with the claim application in a half-hazard manner without prop¬erly appreciating the evidence on record and decided the issues without proper appreciation of the materials on record and mis¬conceived the scope of the claim application. The Tribunal has also erred in law in awarding a compensation of Rs. 25,000/- while as on the date of accident as the law stood the maximum amount that could be awarded was Rs. 12,000/-. Even if the appli¬cation could be treated as one under Section 140, the Tribunal could not have gone into details of evidence to find out the fault or otherwise and award compensation. The Tribunal was otherwise also required to consider the application under Section 166 independent of an application under Section 140 and in view of Section 168 it was required to consider the application in accordance with law keeping in view the pleadings of the parties and the evidence on record. 11. In such view of the matter, I have no hesitation to set aside the impugned judgment and remit the matter back to the claims Tribunal for fresh consideration of the entire case in accordance with law and dispose of the same expeditiously within a period of three months from the date of receipt of this order. The parties may be allowed to adduce and lead fresh evidence in support of their respective cases, if so advised. However, there shall be no order as to cost. Appeals disposed of.