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2006 DIGILAW 196 (JK)

Santosh Kumari v. National Insurance Co. Ltd.

2006-09-07

J.P.SINGH

body2006
Background facts: 1. M/s Om Parkash, Ashwani Kumar, Santosh Kumari, Deepak Kumari, Rano Devi and Shushma filed claim petitions in Motor Accidents Claims Tribunal, Jammu, claiming compensation for the injuries received by them while travelling in a passenger motor vehicle, Bus No. JK02E-4697, which was plying from Gadigarh to Jammu. 2. These claim petitions filed under Section 166 of the Motor Vehicles Act, 1988, "the Act", hereinafter for short, included prayer for interim award under Section 140 of the Act. The Tribunal allowed this prayer in terms of its award passed on 12.07.2002, 18.09.2002, 04.12.2002 & 11.02.2003, allowing an amount of rupees twenty five thousand (Rs.25,000/-) each to the petitioners. 3. Claim petitions filed under Section 166 of the Act, were later disposed of by joint award dated 06.04.2004, awarding an amount of Rs.50,000/- (Rupees fifty thousand) to Om Parkash, Rs.25,000/- each (Rupees twenty five thousand each) to Ashwani Kumar & Santosh Kumari, Rs.10,000/- (Rupees ten thousand) to Deepak Kumari, Rs.5,000/- each (Rupees five thousand each) to Rano Devi & Shushma. The Tribunal further directed that the amount received by the claimants- Rano Devi and Shushma, awarded under Section 140 in excess of amount awarded under Section 166 of the Act, be refunded. Appeals by aggrieved claimants: 4. Five out of the six claimants are aggrieved by the award of the Tribunal. They have approached this Court in these appeals to seek enhancement of the amount of compensation awarded by the Tribunal besides seeking annulment of that portion of the Award of the Tribunal whereby it directs them to refund the amount received under Section 140 of the Act in excess of the amount awarded under Section 166 of the Act. Submissions On behalf of Appellants: 5. Sh. Balbir Singh, learned counsel for the appellants, submits that amount awarded to the claimants under Section 140 of the Act, was irrecoverable and the Tribunal had erred in directing its refund. Learned counsel submits that the Tribunal had further erred in awarding lesser amount of compensation whereas appellants were entitled to compensation more than the one which has been allowed by the Tribunal. On behalf of National Insurance Company Ltd.: 6. Sh. Learned counsel submits that the Tribunal had further erred in awarding lesser amount of compensation whereas appellants were entitled to compensation more than the one which has been allowed by the Tribunal. On behalf of National Insurance Company Ltd.: 6. Sh. Suneel Malhotra, learned counsel for the Insurance Company, submits that the appellants do not have any right over the claim awarded to them under Section 140 of the Act, when on final determination of claim petition filed under Section 166 of the Act they were found entitled only to lesser amount of compensation. He justified the award of the Tribunal directing the appellants to refund the excess amount received by them. 7. I have considered the submissions of learned counsel for the parties besides going through the evidence recorded by the Tribunal with the assistance of learned counsel. Sections 140 & 141 of the Motor Vehicles Act, 1988: 8. The first question which needs determination in these appeals is as to whether the amount awarded under Section 140 of the Act, on the basis of `No-Fault-Liability, would become refundable on determination of lesser amount of compensation under Section 166 of the Act. 9. Before examining this question, provisions of Sections 140 & 141 need to be noticed. These Sections read, thus:- "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 any 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. (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 claim shall not be required to 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 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. (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 Sec. 163-A. 141. Provisions as to other right to claim compensation for death or permanent disablement.- (1) The right to claim compensation under Sec. 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to Sec. 163-A (such other right hereafter) in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force. (2) A claim for compensation under Sec.140 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 under Sec.140 and also in pursuance of any right on the principle of fault, the claim for compensation under Sec.140 shall be disposed of as aforesaid in the first place. (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 under Sec. 140 is also liable to pay compensation in accordance with the right on the 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 second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation." (Emphasis supplied)" 10. Both these Sections are part of Chapter X of the Motor Vehicles Act, 1988, which creates statutory liability on the owner/s of the vehicle/s to pay an amount of rupees fifty thousand in respect of death, and an amount of rupees twenty five thousand in respect of permanent disablement, of any person. 11. Section 141 vests an additional and special right to compensation under Section 140 in respect of death or permanent disablement of any person and consequently, Section 140 creates a distinct and absolute liability on the owner/s of the motor vehicle/s to pay compensation. Whereas Section 141 contains provision for adjustment of the amount awarded under Section 140 on the basis of `No-Fault-Liability in the amount adjudged payable on the basis of `Fault-Liability, this Chapter does not contain any provision for the recovery of amount awarded under Section 140 of the Act on the basis of `No-Fault-Liability. 12. Whereas Section 141 contains provision for adjustment of the amount awarded under Section 140 on the basis of `No-Fault-Liability in the amount adjudged payable on the basis of `Fault-Liability, this Chapter does not contain any provision for the recovery of amount awarded under Section 140 of the Act on the basis of `No-Fault-Liability. 12. Considering the vesting of a special right to compensation in respect of death or permanent disablement of any person and consequent liability of the owner to pay the amount mentioned in Section 140 to the person/s entitled thereto under Section 140 and there being no provision in the Chapter permitting recovery of the amount awarded under Section 140 of the Act, I am inclined to hold that the amount awarded under Section 140 cannot be ordered to be refunded. This is so because the special right created by the Statute to claim compensation and the distinctive liability of the owner to satisfy such claim has been enacted with a view to advance social justice in providing immediate monetary assistance to those who are held entitled thereto under Section 140. 13. The owner and consequently the Insurance Company are, thus, under a statutory liability to pay this amount to the persons entitled thereto. This liability of the Insurance Company is an additional liability, which has nothing to do with the success or failure of the claim launched under Section 166 of the Act. I, therefore, find that the Tribunal has erred in directing the refund of the amount paid under Section 140 without considering the true scope and reach of Chapter X of the Motor Vehicles Act, 1988. 14. Direction issued by the Tribunal in the Award directing claimants/appellants to refund the excess amount, is, therefore, set aside and quashed. 15. This takes me to consider the plea of the appellants seeking enhancement in the amount of compensation allowed to them under the `Fault-Liability. CIMA No. 150/2004- Ashwani Kumar 16. Appellant -- Ashwani Kumar, aged 8 years, had claimed rupees one lac seventy thousand (Rs.1,70,000/-) as compensation. He has been awarded an amount of rupees twenty five thousand (Rs.25,000/-). According to the doctor, who had appeared in the case as claimants witness, appellants permanent disablement of the right upper limb was 5%. This claimant, according to the doctor, would be able to play games and continue his studies despite the receipt of the injuries. 17. He has been awarded an amount of rupees twenty five thousand (Rs.25,000/-). According to the doctor, who had appeared in the case as claimants witness, appellants permanent disablement of the right upper limb was 5%. This claimant, according to the doctor, would be able to play games and continue his studies despite the receipt of the injuries. 17. Learned counsel for the appellant did not raise any substantial plea to justify increase in the amount of compensation. Compensation awarded by the Tribunal and reasons given by it therefor, do not in my view suffer from any error of law. 18. I, thus, do not find any error of law in the award of the Tribunal, awarding an amount of rupees twenty five thousand to this appellant. His claim for enhancement is, thus, rejected. CIMA No. 133/2004 -- Santosh Kumari 19. Appellant -- Santosh Kumari, was undergoing tailoring business before she received the injuries in the accident. Her disability has been assessed at 10% and according to the doctor, examined in the case, she would be unable to work as tailor and would not be in a position to work in the fields as well. 20. After examining the finding of the Tribunal in the light of evidence led in the case, I find that the Tribunal has erred in awarding an amount of Rs. 25,000/- (Rupees twenty five thousand) only as compensation to this appellant, who has been disabled to undertake her job as tailor and earn her livelihood. 21. When confronted with this situation and the disability caused to the appellant, learned counsel appearing for the Insurance Company fairly conceded that her case warranted some increase. 22. With the consent of learned counsel for the appellant and the Insurance Company, compensation payable to Santosh Kumari, is, enhanced to rupees thirty five thousand (Rs.35,000/-), which shall be paid by the Insurance Company to the appellant- Santosh Kumari alongwith interest at the rate of 6% P. A. from the date of her application minus the amount already received by her. CIMA Nos. 147/2004, 148/2004 & 149/2004. 23. Plea of learned counsel for the appellants- Shushma, Rano Devi and Deepak Kumari, for enhancement of compensation, was examined in the light of evidence led in the case. Learned counsel for the appellants was unable to project any worthwhile plea to justify increase in the amount of compensation. CIMA Nos. 147/2004, 148/2004 & 149/2004. 23. Plea of learned counsel for the appellants- Shushma, Rano Devi and Deepak Kumari, for enhancement of compensation, was examined in the light of evidence led in the case. Learned counsel for the appellants was unable to project any worthwhile plea to justify increase in the amount of compensation. Claim of these appellants for enhancement of compensation on the basis of `Fault-Liability, is, thus, rejected. Conclusions: 24. In view of my findings, Award of the Tribunal in CP No. 92 is modified as an award for Rs. 35,000/- along with interest @ 6% P. A. from the date of the application and Award of the Tribunal in CP Nos. 94 & 97 is modified by providing that amount awarded under Section 140 shall not be recovered from the appellants. 25. These appeals are, accordingly, disposed of on the terms indicated above; but with no order as to costs.