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2008 DIGILAW 154 (JK)

New India Assurance Co. Ltd. v. Harbans Lal

2008-04-30

J.P.SINGH

body2008
1. Mr. Harbans Lal had filed a claim petition before Motor Accidents Claims Tribunal, Ramban seeking an amount of Rs. 10,40,000/- as compensation for 40% disablement suffered by him because of the injuries he had received while driving Truck No. JK02D/3198 from Jammu to Srinagar on August 2, 1999 when it had gone out of control because of failure of its breaks at Kela Morh near Village Seri at 6p.m. 2. The Claims Tribunal had put the parties to the issues which read thus: - 1) Whether petitioner aged 30 years, driver by profession, earning Rs.3000/- per month, was injured while driving truck No. JK02D-3198 on 02.08.2000 at Kela Morh Ramban and sustained injuries & permanent disability to the extent of 40%? O.P.P 2) Whether on the day of occurrence, truck No. JK02D-3198, was owned by respondent No.1 and was insured with respondent No.2 ? O.P.P 3) To what compensation the petitioner is entitled to? 4. New India Assurance Company Limited, the insurer of vehicle No. JK02D-3198 had not led any evidence to rebut the claimants evidence which had thus remained uncontroverted. 5. Relying on the claimants evidence, the Tribunal passed an award for an amount of Rs. 2,04,000/- in favour of the claimant. 6. Aggrieved by Tribunals award of July 3, 2001, New India Assurance Company Limited has come up, in appeal, to this Court. 7. Appellants counsel submits that the claimant, being himself responsible for the accident, was not entitled to maintain claim for compensation under Section 166 of the Motor Vehicles Act, 1988. Alternatively he submits that even if the claimants petition had to be treated as one under Section 163-A of the Motor Vehicles Act yet the driver of the vehicle involved in the accident would not be entitled to compensation because he would not fall within the purview of the expression "the victim" as it so appears in Section 163-A of the Motor Vehicles Act. 8. 8. Learned counsel for the claimant, on the other hand, says that respondent had projected a pure and simple claim under Section 163-A of the Motor Vehicles Act, 1988 and the Tribunal too had treated his claim as such; the award of the Tribunal may not, therefore, warrant interference, additionally because the Insurance Company had not sought permission, of the Tribunal under Section 170 of the Motor Vehicles Act to contest respondent No.1s claim on grounds other than those which are available to an insurer under Section 149(2) of the Motor Vehicles Act, 1988. 9. Meeting appellants counsels submission learned counsel refers to Deepal Girishbhai Soni v. United India Insurance Co. Limited, reported as 2004 ACJ, 934 to urge that appellants plea that respondent no.1, the driver of the vehicle in question would not fall within the definition of the expression "victim" in terms of Section 163-A of the Act was unsustainable. 10. I have considered the submissions of learned counsel for the parties and gone through the records. 11. Perusal of claimants petition filed before the Tribunal does not indicate that it had been filed under Section 166 of the Motor Vehicles Act. The issues framed by the Tribunal too demonstrate that the Tribunal had not treated claimants application to be one under Section 166 of the Motor Vehicles Act. The issues framed by the Tribunal in the claim petition too indicate that only those factors had been incorporated in the issues which were necessary to decide a claim petition under Section 163-A of the Motor Vehicles Act. It, however, appears that the Tribunal had while passing the award, inadvertently reflected respondents claim petition to be one under Sections 166/140 of the Motor Vehicles Act which infact, it was not. 12. The Tribunal appears to have passed an interim award under Section 140 of the Motor Vehicles Act and that too without any prayer in this behalf by the claimant. The claimant had neither moved any separate application for passing orders under Section 140 of the Motor Vehicles Act nor his claim petition refers to any such prayer of the respondent seeking issuance of interim award under Section 140 of the Motor Vehicles Act. 13. Be that as it may, the admitted stand of the parties is that the amount awarded, by the Tribunal under Section 140 of the Motor Vehicles Act had not been received by the claimant. 13. Be that as it may, the admitted stand of the parties is that the amount awarded, by the Tribunal under Section 140 of the Motor Vehicles Act had not been received by the claimant. 14. Looking to the claim petition, the information supplied therein, the complexion of issues framed by the Court and the evidence led in regard thereto it becomes explicitly clear that the claimants application was one under Section 163-A of the Motor Vehicles Act and not under Section 166 of the Motor Vehicles Act as claimed by the appellants counsel. First submission of Mr. Gupta, learned counsel for the appellant, therefore, fails and is accordingly rejected. 15. While supporting his submission that a driver of the vehicle would not fall within the definition of the expression "the victim" appearing in Section 163-A of the Motor Vehicles Act, learned counsel for the appellant Mr. Gupta had referred to Appaji (since deceased) and another versus M. Krishna & another, reported as 2004 ACJ, 1289 where a Division Bench of the High Court of Karnataka had taken the following view: - "Let us then turn to Section 163-A of the Motor Vehicles Act. It envisages payment of compensation for death or permanent disablement due to an accident arising out of the use of motor vehicle to the victim or his legal heirs as the case may be. The term Victim has not been defined in the Act. The literal meaning of the word as given in Chambers 20th Century Dictionary is: "a living being offered as a sacrifice; one subjected to death, suffering or ill- treatment; a prey; a sufferer". Blacks Law Dictionary explains the term thus: "The person who is the object; of a crime or tort, as the victim of a robbery is the person robbed." Person whom court determines has suffered pecuniary damages as a result of defendants criminal activities; that person may be individual, public or private corporation, government, partnership, or unincorporated association. 16. The right to receive compensation under section 163-A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitled a person who is neither a victim nor his/her legal heir to claim any compensation. 16. The right to receive compensation under section 163-A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitled a person who is neither a victim nor his/her legal heir to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke section 163-A for making a claim. The concern of the legislature and the jurists is understandably for the victim in contra-distinction to the victimizer or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunker driving, speeding in what are high performance new generation of automobiles including two-wheelers are accounting for a large number of accidents every day. Quite often these accidents ill or wound even the person who is driving the vehicle. Parliament did not in our opinion intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. Neither the provisions of Section 163-A nor the background in which the same were introduced disclose any such intention. The argument that section 163-A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected. 17. The issue can be examined from yet another angle. Section 147 of the Motor Vehicles Act prescribes the requirement of a policy of insurance in order that the same may be said to comply with the provisions of Chapter XI. It, inter alia, envisages a policy of insurance with insures the person or class of persons specified in the policy against any liability which may be incurred by him in respect of the death or bodily injury or damage to any property of a third party arising out of the use of the vehicle in a public place. What is important is that me policy must insure the owner against "any liability which arises against him" on account of any death or injury arising out of a motor accident. What is important is that me policy must insure the owner against "any liability which arises against him" on account of any death or injury arising out of a motor accident. In the case of an accident without the involvement of any other vehicle or agency, no liability qua the insured would arise except where the person who is killed or injured is an employee of the injured and the accident arises out of his employment. In any such case, rashness or negligence of the employee may be inconsequential for purposes of holding the employer liable to pay the compensation under the Workmens Compensation Act. The decision of this court in Y.R. Shanbhag v. Mohammed Gouse, 1991 ACJ 699 (Karnataka), has taken the view that where the driver had sustained injuries due to his own driving he cannot maintain a petition under Motor Vehicles Act, his remedy being under Workmens Compensation Act. Reference may also be made to another Division Bench decision of this court in B. Prabhakar v. Bachima, 1984 ACJ 582 (Karnataka), where the court observed: "From section 110-AA, it is clear that before an application can be entertained, the accident must have occurred due to the actionable negligence of the owner or the driver of the vehicle. When the accident has occurred due to actionable negligence of the deceased who was himself the driver, no claim by his legal representatives can be entertained under the Act. That being so section 110-AA will not come into place at all." 18. We need not dilate on the rights and liability of the parties in such a case for that aspect even though raised before us does not strictly speaking fall for a detailed examination. Suffice it to say that in a case where no liability arises against the driver or owner of the vehicle on account of the accident no such liability will arise even against the insurance company with whom the vehicle involved in the accident is insured. Section 163-A of the Act does not in our opinion alter that legal position. It does not alter the legal basis on which a liability arises under section 147 of the Act nor does it prove a different or modified basis for the same. Section 163-A of the Act does not in our opinion alter that legal position. It does not alter the legal basis on which a liability arises under section 147 of the Act nor does it prove a different or modified basis for the same. That being so, in the case of an accident where the person killed or injured is himself responsible for the accident, no liability would arise against the insured nor can any such liability be enforced under section 163-A of the Act. For a liability under section 163-A to arise against insurance company, it is essential that such a liability must first arise against the insured and the insurance company under section 147 of Motor Vehicles Act. 19. Two decisions relied upon by the appellants may at this stage be noticed. In Kokla Devi v. Chet Ram 2002 ACJ 650 (HP), a Division Bench of the High Court of Himachal Pradesh held that section 163-A had brought about a drastic change in the concept of tortuous liability prevailing prior to it. The court was of the view that the `non obstante clause in section 163-A permitted even the tortfeasor to claim compensation on the principle of no fault liability. With respect to the Honble Judges who delivered the said decision we find it difficult to subscribe to that view. 20. Section 163-A of the Act no doubt brings about a significant change in the legal position as regards the obligations to prove fault is concerned, but the change is not so drastic so as to make even a tortfeasor entitled to claim compensation for his own act of rashness, negligence or imprudence. The `non obstante clause in section 163-A simply dispenses which proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under section 163-A therefore need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not, however, mean that claimant can maintain a claim on me basis of his own fault or negligence and argue that even when he himself may, have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same. That does not, however, mean that claimant can maintain a claim on me basis of his own fault or negligence and argue that even when he himself may, have caused the accident on account of his own rash and negligent driving, he can nevertheless make the insurance company pay for the same. Inasmuch as section 163-A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The correct approach appears to us to be to find out whether, in the absence of section 163-A, a claim could on the facts pleaded be maintained by claimant, if the answer is `no because the claimant was himself the tortfeasor, the provisions of section 163-A would not come to his rescue and make such a claim maintainable. If the answer is `Yes the beneficial provisions under section 163-A would absolve the claimant of the obligation to prove that the accident had taken place on account of the fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the Schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possible be avoided. 21. In New India Assurance Co. Ltd. v. Muna May a Basant, 2001 ACJ 940 (Gujarat), a Division Bench of Gujarat High Court also took the view that non obstante clause appearing in section 163-A permitted, even the tortfeasor to claim compensation and that the insurance company can contest the claim only on the ground of total absence of a contract or insurance and not otherwise. For the reasons that we have set out above, we regret out inability to follow that line of reasoning. As held by this Apex Court in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, 2001 ACJ 827 (SC), the non obstante clause simply excludes determination of compensation on the principle of fault liability. The said provision does not permit a person to place a premium upon his own fault and make the insurance company pay for the same." 22. The view taken by the High Court of Karnataka, may not, require consideration in view of Honble Supreme Courts settling the law on the subject in Deepal Girishbhai Soni & Others versus United India Insurance Co. Ltd. (supra). The view taken by the High Court of Karnataka, may not, require consideration in view of Honble Supreme Courts settling the law on the subject in Deepal Girishbhai Soni & Others versus United India Insurance Co. Ltd. (supra). It would thus be advantageous to refer to the following paragraphs of Deepal Girishbhai Sonis case which read thus:- "The question may be considered from different angles. As for example, if in the proceedings under section 166 of the Act, after obtaining compensation under section 163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant material comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty award compensation in terms of section 163-A thereof. 23. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under section 163-A of the Act is interim in nature. 24. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no fault liability, as for example, sections 140 and 161 in cases of hit and run motor accident, from the amount of compensation payable under the award on the basis of fault liability under section 168 of the Act, the same has expressly been provided for and having regard to the fact that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under section 163-A of the Act, it must be held that the scheme of the provisions under section 163-A and 166 are distinct and separate in nature. 25. 25. It is also not of much relevance that in terms of section 140 of the Act, the owner of the vehicle has been fastened with the statutory liability and in section 163-A thereof both the owner as also his authorized insurer has been made so liable. 26. In sub-section (5) of section 140 of the Act the expression `also has been used which is indicative of the fact that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. Proviso appended to sub-section (5) of section 140 states that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of the compensation payable under sub-section (2) thereof or under section 163-A of the Act. Right of, claim compensation under section 140, having regard to the provisions contained in section 141 is in addition to any other right to claim compensation on the principle of fault liability. Such a provision does not exist in section 163-A. If no amount is payable under the fault liability or the compensation which may be received from any other law, no refund of the amount received by the claimant under section 140 is postulated in the scheme. Section163-A, on the other hand, nowhere provides that the payment of compensation of no fault liability in terms of the structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability. It is also not correct to contend that the expression "any other law for the time being in force" used in section 140(5) would include any other provision of the Motor Vehicles Act. Had the intention of Parliament been to include the other provisions of Motor `Vehicles Act within the meaning of the expression "any other law for the time being in force:, it could have said so expressly. The very fact that Parliament has chosen to use the expression `any other law, the same, in our considered opinion, would mean a law other than the provisions of the Motor Vehicles Act. The proviso appended to subsection (5) of section 140 of the Act is required to be given a purposive meaning. 27. The very fact that Parliament has chosen to use the expression `any other law, the same, in our considered opinion, would mean a law other than the provisions of the Motor Vehicles Act. The proviso appended to subsection (5) of section 140 of the Act is required to be given a purposive meaning. 27. It is not in dispute that the claim of compensation irrespective of the death or bodily injury may arise under other statutes as, for example, Workmens Compensation Act, Factories Act, Fatal Accidents Act and other Acts governing various industries including hazardous industries. 28. In the event, the motor vehicle in question is insured, ultimately the liability would also be fastened upon the insurer having regard to the provision laid down in Chapter XI of the Act. We may also notice that rule 211 (1) of Gujarat Motor Vehicles Rules provides for the application for compensation in terms of sub-section (1) of section 166 of the Act. A claim application is to be filed in Form Comp. A. Rule 231 thereof provides for an application for compensation in respect of liability without fault and for the said purpose the claim application prescribed therefor is to be filed in Form No. CWF. The very fact that different forms had been prescribed as regard determination of the final compensation is also suggestive of the fact that both proceedings are meant to be final in nature. Column No. 10 in Form Comp. A requires the claimant to give brief particulars of the accident which would include the nature and extent of fault on the part of the driver of the vehicle, but no such column is provided for in Form CWF. Subject to the said distinction, all other particulars required to be furnished are almost identical. 29. We may notice that section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmans Compensation Act, 1923, he cannot claim compensation under both the Act. The Motor Vehicles Act contains different expressions as, for example, `under the provision of the Act, `provisions of this Act, `under any other provisions of this Act or `any other law or otherwise. The Motor Vehicles Act contains different expressions as, for example, `under the provision of the Act, `provisions of this Act, `under any other provisions of this Act or `any other law or otherwise. In section 163-A, the expression "notwithstanding anything contained in this Act on in any other law for the time being in force" has been used, which goes to show that 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." 30. In view of the law laid down by Honble Supreme Court of India in this respect, the expression "the victim" appearing in Section 163-A of the Act does not contemplate any restrictive meaning which was ascribed to it by the Division Bench of Karnataka High Court. This expression, on the other hand, needs to be interpreted liberally keeping in view the social purpose sought to be achieved by enacting Section 163-A of the Motor Vehicles Act and arming it with a non obstante clause creating a special provision, over and above the existing provisions of the Motor Vehicles Act and any other law for the time being in force, meaning thereby, that the general law that a tortfeasor may not be entitled to claim compensation for the injuries caused to him because of his own fault, may not be applicable where a claim is laid under Section 163-A of the Act by a person or his legal representative/s suffering in an accident in a vehicle driven by him. The provisions of Section 163-A of the Motor Vehicles Act appear to have been incorporated by the parliament as a social security measure for those whose predecessor-in-interest and bread winner die in a motor vehicular accident or by those who are injured in the accident, because of one or the other reason, including his/their own lapse. 31. The submission of Mr. 31. The submission of Mr. Gupta that a driver of a vehicle may not be entitled to maintain petition under Section 163-A of the Motor Vehicles Act, therefore, fails and is accordingly rejected. 32. That apart, I do not find appellants appeal to be maintainable as it had not sought permission of the Tribunal to contest respondents claim on grounds other than those available to an insurer under the Motor Vehicles Act. 33. Appellant had, therefore, no right to appeal against the award. Its appeal is, accordingly, dismissed with costs assessed at Rs. 5000/-. 34. Amount deposited by the appellant along with interest accrued thereon shall be released in favour of the claimant after his proper identification.