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Rajasthan High Court · body

2010 DIGILAW 812 (RAJ)

Bandu Gangaram Zade v. Lilabai Gangaram Zade

2010-04-12

C.L.PANGARKAR

body2010
Hon'ble PANGARKAR, J.—Admit, returnable forthwith. Heard finally with consent of both the parties. 2. This is an appeal by the original claimants against the order passed by the Tribunal on an application under Section 140 of the Motor Vehicles Act, 1988. 3. The facts are as follows : The claimants/appellants are the sons and daughter of deceased Gangaram. On 6.1.2005, Gangaram Zade was driving Minidor (auto trolley). While he was driving the said vehicle, the said vehicle turned turtle as he tried to avoid collision with another vehicle. In the said accident Gangaram died. The said vehicle was owned by Gangaram’s wife Leelabai. The claimants claim compensation on account of no fault liability. 4. The Insurance Company had resisted the application under Section 140 of the M.V. Act and had contended that since death had occurred due to the negligence of the deceased himself, the claimants were not entitled to any compensation and the deceased was not a third party. The learned judge of the Tribunal after hearing the parties rejected the application on the grounds raised by the Insurance Company. Feeling aggrieved thereby, this first appeal is preferred. 5. I have heard the learned counsel for the appellants and the respondent. 6. The learned counsel for the appellants submits that the learned Judge of the Tribunal fell in error in rejecting the application under section 140 of the Motor Vehicle Act on the ground that the deceased was not a third party and was himself driving the vehicle. It is not in dispute that the deceased was himself driving and he died of his own negligence. Normally damages can be claimed in cases of tort. A tort is a civil wrong for which wrong doer has to compensate. Shri Paunikar, the learned counsel for the respondent/Insurance Company, submits that this is a case covered by a maxim volenti non fit injuria. He submits that the order as passed by the Tribunal is correct. The submission that this case is one covered by the above maxim cannot be disputed. This maxim has certainly to be applied to all applications filed under Section 166 of the M.V.Act. The present application is one under Section 140 of the M.V.Act. We have, therefore, to see if section 140 of the Act is also covered by the said maxim. We must, therefore, look into section 140 itself. This maxim has certainly to be applied to all applications filed under Section 166 of the M.V.Act. The present application is one under Section 140 of the M.V.Act. We have, therefore, to see if section 140 of the Act is also covered by the said maxim. We must, therefore, look into section 140 itself. Section 140 of the Act reads as follows : 140. Liability to pay compensation in certain cases on the principal of no fault (1) ............ (2) ........... (3) .......... (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. 7. Shri Sirpurkar, the learned counsel for the appellants, submits that Section 140(4) is an exception to the general rule and heirs of person dying in motor vehicle accident of his own act may be entitled to claim the compensation. He brings to my notice the following words particularly in the said section. “(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” 8. A bear reading of the provisions make it clear that the compensation under Section 140 of the Act can be claimed even if the deceased died of his own fault. What is required to be seen is whether the deceased died of a motor vehicle accident or not. Section 140 of the Act, it appears to me, is an exception to the general rule. To my mind, therefore, the claimant would certainly be entitled to compensation under Section 140 of the Act even though deceased may have died of his own fault. I would, therefore, allow the appeal and set aside the order of Tribunal and direct the respondents to pay Rs.50,000/- with 6% interest from date of application to the claimants towards no fault liability. The appeal is accordingly disposed of. No order as to costs.