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2010 DIGILAW 508 (JK)

National Insurance Co. Ltd. v. Nasib Chand

2010-10-05

Mansoor Ahmad Mir

body2010
1. This Civil 1st Miscellaneous Appeal is directed against the interim award dated 19.2.2008 passed by the Motor Accidents Claims Tribunal, Jammu under Section 140 of the Motor Vehicles Act, 1988 in favour of claimant-respondent no.1 (hereinafter impugned award). 2. The impugned award is challenged mainly on the ground that the driver of the offending vehicle was not having valid driving licence at the time of accident, thus the appellant-insurer cannot be saddled with the liability in terms of the mandate of Section 149 of the Motor Vehicles Act, 1988 (for short, hereinafter the Act). 3. The crux of the matter is whether the defence projected and taken by the appellant-insurer in terms of Section 149 of the Act can be pressed into service at the time of determination of application under Section 140 of the Act for grant of interim award on no fault liability. The answer is negative for the following reasons: 4. Liability without fault in certain cases is covered by Chapter X of the Act. It is apt to reproduce Section 140(1) of the Act herein: "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. 5. The purpose of granting interim award/compensation is just to save the victims of vehicular accident from social evils, starvation and to provide the relief as early as possible and the object of this provision of law is to be achieved without succumbing to the niceties of law, mystic may bees and procedural wrangles and tangles. 6. Claim under Section 140 of the Act cannot be defeated on the ground that the owner has committed the breach or the insurer has a defence in terms of Section 149 of the Act, which requires determination after leading evidence. 7. Section 141(2) of the Act provides that a claim for compensation under section 140 of the Act in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible. 7. Section 141(2) of the Act provides that a claim for compensation under section 140 of the Act in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible. It is apt to reproduce the said provision herein : "141. Provisions as to other right to claim compensation for death or permanent disablement - (2) A claim for compensation under section 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 section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place." 8. Keeping in view the mandate of Chapter X of the Act, the interim award is to be granted at the first instance. The object would be defeated if the Claims Tribunal is required to hold regular trial in the same manner as is required for adjudicating the claim under Section 166 of the Act. 9. Rules 311, 315, 316, 329 and 330 of J&K Motor Vehicles Rules, 1991 (for short, hereinafter the Rules) provide how to determine the application under section 140 of the Act as early as possible. It is apt to reproduce rules 311, 316, 329, and 330 herein. "311. Application for compensation under Section 140. (1) Notwithstanding anything contained in Rule 310 every application for a claim under Section 140 shall be filed before the Claims Tribunal in triplicate, and shall be signed by the applicant and the following documents shall be appended to every such application namely:- (i) Panchnama of the accident; (ii) First Information Report; (iii) Medical Certificate in Form COMP. B of the First Schedule 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. (2) If any of the documents specified in sub-rule (1) are not appended to the application, the reasons for not appending them shall be stated, and if the Tribunal, is satisfied, it may proceed with the application, and require production thereof at a later stage." "316. (2) If any of the documents specified in sub-rule (1) are not appended to the application, the reasons for not appending them shall be stated, and if the Tribunal, is satisfied, it may proceed with the application, and require production thereof at a later stage." "316. Notice to the parties involved (2) Where the applicant makes a claim for compensation under Section 140, 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 the date, not later than fifteen days from the date of issue of such notice. The date as fixed for such appearance shall also be not later than fifteen days from the receipt of the claim 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 Claim Tribunal shall proceed ex-parte on the presumption that they have no contention to make against the award of compensation." "329. Obtaining of information and documents necessary for awarding compensation under Section 140. The Claims Tribunal shall obtain whatever supplementary information and documents which may be found necessary from the Police, Medical and other authorities and proceed to award the Claim where the parties who were given notice, appear or not, on the appointed date." "330. Judgment and award of compensation under Section 140. (1) The claims Tribunal shall proceed to award the claims of compensation under Section 140 on the basis of - (i) registration certificate of motor vehicle involved in the accident, or a certificate regarding ownership of the vehicle involved in the accident from the Regional Transport Officer or the Police; (ii) insurance certificate of policy relating to the insurance of the vehicle against the party risk or the certificate regarding the insurance particulars of the vehicle from the Regional Transport Officer or the Police; (iii) panchnama and First Information Report; (iv) post-mortem report or death certificate, or certificate in Form Comp. B of the First Schedule; (v) the nature of the treatment given by the Medical Officer who has examined the victim. (vi) Any other documents produced by or on behalf of the parties are obtained in the Tribunal under Rule 329. B of the First Schedule; (v) the nature of the treatment given by the Medical Officer who has examined the victim. (vi) Any other documents produced by or on behalf of the parties are obtained in the Tribunal under Rule 329. (2) The Claims Tribunal in passing orders, shall make an award of compensation of twenty-five thousand rupees in respect of the death and of twelve thousand rupees in respect of the permanent disablement to be paid by the insurer or owner of the vehicle involved in the accident. (3) The Claims Tribunal in passing order under sub-rule (2) shall direct the insurer or owner of the vehicle involved in the accident to pay the amount of compensation to the claimant within two weeks from the date of the said order. (4) The Claims Tribunal shall, as far as possible, dispose of the application for compensation within forty-five days from the date of receipt of such application." 10. Rule 329 empowers the Tribunal to obtain the supplementary information/documents from the police, medical and other authorities which may be necessary to determine the petition under Section 140 of the Act. Thus this provision clearly mandates that the Claims Tribunal has not to conduct the trial but can direct the police or any other authority to furnish information and supplementary documents, in addition to the documents produced by the claimant along with the application under Section 140 of the Act. 11. In terms of Section 158(6) of the Act, the police is under legal obligation to submit information along with the report of investigation to the Claims Tribunal having jurisdiction along with the copy of insurance policy within 30 days. It is apt to reproduce section 158(6) of the Act herein: "158. Production of certain certificates, licence and permit in certain case. It is apt to reproduce section 158(6) of the Act herein: "158. Production of certain certificates, licence and permit in certain case. -- (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer Incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer." 12. The Claims Tribunal has to treat the report of accident forwarded to it under section 158(6) of the Act as an application for compensation under the Act in terms of section 166(4) of the Act, which reads as under: "166. Application for compensation- (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act." 13. The purpose of the said provision is that the victims of vehicular accident must get redressal as early as possible. The rules (supra) have been made by the State in order to achieve the purpose of section 140 read with sections 158(6) and 166(4) of the Act. Rule 330 (supra) provides that what are the documents required to be annexed with the application under section 140 of the Act for its determination. Rule 310 provides how to determine the petition under section 166 of the Act and that is why the words "notwithstanding anything contained in Rule 310" are used in Rule 311 of the Rules, meaning thereby that it is not permissible for the Claims Tribunal to make an order of no fault liability under section 140 of the Act after recording evidence and determining the issue. 14. As discussed hereinabove, the documents referred to in Rules 311, 316, 329 and 330 read with the provisions of mandate of sections 140, 141, 158(6) and 166(4) of the Act will enable the Claims Tribunal to determine the petition under section 140 of the Act. 14. As discussed hereinabove, the documents referred to in Rules 311, 316, 329 and 330 read with the provisions of mandate of sections 140, 141, 158(6) and 166(4) of the Act will enable the Claims Tribunal to determine the petition under section 140 of the Act. Panchnama and FIR will show whether the accident had arisen out of the use of motor vehicle in question. The injury certificate/permanent disability certificate or the postmortem report will show the nature of injuries and the cause of death. Registration certificate/route permit and insurance certificate/policy of the motor vehicle will indicate who are the owner and insurer of the vehicle. If there is a slightest doubt, the Claims Tribunal has the power to direct the police, medical authorities and other authorities to produce the supplement information or documents in terms of Rule 329. The Rules (supra) contained adequate provisions which would enable the Claims Tribunal to satisfy itself in respect of the matters necessary for awarding compensation under section 140 of the Act. Thus one comes to an inescapable conclusion that the Claims Tribunal is not required to follow the procedure prescribed under the Act and the Rules with regard to adjudication of the claim under Section 166 of the Act for the purposes of making an award on a claim petition under section 140 of the Act. 15. Chapter X of the Act does not contain any provision whereby the insured or the insurer can raise any defence in order to defeat the petition under section 140 of the Act on the basis of no fault liability. No doubt section 149 of the Act provides that the insurer can resist the main petition under section 166 of the Act on the grounds/defences contained in section 149 of the Act. The said provision is contained in Chapter XI. The provisions containing Chapter x of the Act have the overriding effect. It is apt to reproduce section 144 of the Act herein. "144. Overriding effect. -- The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force." 16. The same question arose before the Maharashtra/Bombay High Court and ultimately before the Apex Court in Shivaji Dayanu Patil v. Vatschala Uttam More, AIR 1991 SC 1769 . -- The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force." 16. The same question arose before the Maharashtra/Bombay High Court and ultimately before the Apex Court in Shivaji Dayanu Patil v. Vatschala Uttam More, AIR 1991 SC 1769 . The Apex Court after examining all the provisions of law and rules of Maharashtra Government held that the Claims Tribunal is not required to follow the normal procedure prescribed under the Act and the Rules with regard to adjudication of main claim. It is apt to reproduce the relevant portion of para 43 herein. "43. The documents referred to in Rules 291A and 306B will enable the Claims Tribunal to ascertain the necessary facts in regard to these matters. The panchanama and the First Information Report will show whether the accident had arisen out of the use of the motor vehicle in question. The Injury Certificate or the post-mortem report will show the nature of injuries and the cause of death. The Registration Certificate and Insurance Certificate of the motor vehicle will indicate who is the owner and insurer of the vehicle. In the event of the Claims Tribunal feeling doubtful about the correctness or genuineness of any of these documents, or if it considers it necessary to obtain supplementary information or documents, Rule 306A empowers the Claims Tribunal to obtain such supplementary information or documents from the police, medical or other authorities. This would show that Rr.291A, 306A and 306B contain adequate provisions which would enable the Claim Tribunal to satisfy itself in respect of the matters necessary for awarding compensation u/S 92A of the Act and in view of these special provisions which were introduced in the Rules by the amendments in 1984, the Claims Tribunals is not required to follow the normal procedure prescribed under the Act and the Rules with regard to adjudication of a claim u/s 110A of the Act for the purpose of making an order on a claim petition u/S 92A of the Act." 17. Rules 291A, 360A, 306B and 306C contained in the rules of Maharashtra Government correspond to Rules 311, 316, 329 and 330 of the Rules. The judgment of the Apex Court squarely applies to the case in hand and fortifies my view. 18. Rules 291A, 360A, 306B and 306C contained in the rules of Maharashtra Government correspond to Rules 311, 316, 329 and 330 of the Rules. The judgment of the Apex Court squarely applies to the case in hand and fortifies my view. 18. In terms of sections 140, 141, 158(6) and 166(4) read with the Rules (supra), the Claims Tribunal is required to satisfy itself while determining the petition under section 140 of the Act in respect of the following points. i. The accident has arisen out of the use of motor vehicle; ii. The said accident resulted in death or permanent disablement iii. The claim is made against the owner and insurer of the motor vehicle involved in the accident. 19. The Claims Tribunal after examining the FIR and the disability certificate came to the conclusion that claimant-respondent no.1 has prima facie established all the ingredients which are required for determination of the petition under section 140 of the Act on no fault liability. The appellant-insurer has not denied the factum of insurance. Thus it is admitted that the vehicle was insured at the relevant point of time. The Tribunal has strictly followed the procedure contained in sections 140 and 141 of the Act read with the Rules (supra). 20. In support of his arguments, learned counsel for appellant cited a Division Bench judgment of this Court in Oriental Insurance Co. Ltd. v. Som Raj & others, 2009 (2) JKJ (HC) 26 decided on 4.4.2009. The said judgment is in clash with the judgment of the Apex Court (supra). In this judgment the Division Bench has not discussed Rules 310, 311, 315, 316, 329 and 330 of the Rules. Even in the said judgment section 144 of the Act has not been discussed. It appears that the judgment of Apex Court (supra) was not brought to the notice of Division Bench. In the given circumstances it is the Apex Court judgment which is binding. 21. I, therefore, conclude in favour of claimant-respondent no.1. 22. In view of the above discussion, this appeal is dismissed and the impugned award is upheld.