Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1501 (HP)

Oriental Insurance Company Ltd. v. Chetna Devi

2016-07-27

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan. J. In the claim petition filed by the claimants under Section 163 of the Motor Vehicle Act (for short ‘Act’), the learned Tribunal dismissed the same by holding that the deceased himself was at fault and therefore, the benefit of the Act could not be extended to a tortfeaser. It was further held that the party to suffer loss in motor vehicle claim must be the third party, whereas in the instant case it was the legal representatives of the registered owner, insurer cum driver of the vehicle that had preferred the claim petition. However, the claimants were held entitled to the amount of Rs.50,000/- deposited by the appellant under no fault liability, which findings have been assailed in this appeal. 2. The learned counsel for the appellant would argue that once the claimants are not entitled to any amount under Section 163 or 166 of the Act, on account of the deceased being a tortfeaser himself, then the claimants are also not entitled any amount that may have been deposited by it under no fault liability as envisaged under Section 140. 3. The learned counsel for the appellant while putting forth such contention has probably ignored Sub Section 4 of Section 140 of the Act, which reads thus:- “140 (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.” 4. Further Sub Section (1) of Section 141 of the Act makes the compensation under Section 140 of the Act in respect of any claim of compensation based on the principle of no fault under any of the provisions of the Motor Vehicle Act. 5. Even otherwise such issue is now no longer res integra in view of the judgment rendered by the Hon’ble Supreme Court in Eshwarappa and another Vs. C.S. Gurushanthappa and another 2010 ACJ 2444 , wherein it has been observed as under:- “13. Then there is section 141 which reads as under: "141. 5. Even otherwise such issue is now no longer res integra in view of the judgment rendered by the Hon’ble Supreme Court in Eshwarappa and another Vs. C.S. Gurushanthappa and another 2010 ACJ 2444 , wherein it has been observed as under:- “13. Then there is section 141 which reads as under: "141. Provisions as to other right to claim compensation for death or permanent disablement.----(1) The right to claim compensation under section 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 in section 163A (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 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. (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 section 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 the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation." Sub-section (1) of section 141 makes the compensation under section 140 independent of any claim of compensation based on the principle of fault under any other provision of the Motor Vehicles Act or under any other law but subject to any claim of compensation under section 163A of the Act. Sub-sections (2) and (3) further provide that even while claiming compensation under the principle of fault (under section 166) one may claim no fault compensation under section 140 and in that case the claim of no fault compensation shall be disposed of in the first place and the amount of compensation paid under section 140 would be later adjusted if the amount payable as compensation on the principle of fault is higher than it. 14. Finally, section 144 gives overriding effect to the provisions of Chapter X. Section 144 reads as follows: "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." 15. Seen in isolation the above provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicles owners even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made but the above provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as ‘Act only insurance'. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law. 16. Seen thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault. 17. The provisions of section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to the over-sight of the Tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy. 18. In light of the discussions made above, we are unhesitatingly of the view, that the Tribunal was completely wrong in denying to the appellant, 14 the compensation in terms of section 140 of the Act. Such a view would be contrary to the legal provisions and would be opposed to the public policy. 18. In light of the discussions made above, we are unhesitatingly of the view, that the Tribunal was completely wrong in denying to the appellant, 14 the compensation in terms of section 140 of the Act. We find and hold that the appellant (as well as the other 3 claimants) were fully entitled to no fault compensation under section 140 of the Act. We, accordingly, direct the insurance company to pay to the appellant Rs.25,000/- along with simple interest @ 6% p.a. from the date of the order of the Tribunal till the date of payment. The other 3 claimants are not before this Court, but that is presumably because they are too poor to come to this Court. Since, we have allowed the claim of the appellants, there is no reason why this order should not be extended to the other 3 claimants as well. We, accordingly, do so. The insurance company is directed to make the payment as directed in this judgment within 3 months.” 6. It is then contended by the learned counsel for the appellant that the issue involved in the instant appeal is now pending before the larger Bench of Hon’ble Supreme Court in its reference made in United India Insurance Co. Ltd. Vs. Sunil Kumar and another 2013 ACJ 2856 . 7. Even this contention is equally without any force, because there in the Hon’ble supreme Court has categorically held that the provisions of Section 163-A of the Act do not include a negative clause like the one contained in Section 140 (4) of the Act and therefore, the liability to make compensation under Section 163-A is on the principle of no fault and therefore, the question as to who is at fault is immaterial and foreign to an inquiry under Section 163-A, as it makes no provision for any apportionment of the liability. It is thus clear that the interpretation of Section 140 or any of its sub sections is neither directly nor indirectly involved for interpretation in the aforesaid case and it is for this precise reason that even in the reference made to the larger Bench, the judgment passed earlier in Eshwarappa case has not even been mentioned. 8. It is thus clear that the interpretation of Section 140 or any of its sub sections is neither directly nor indirectly involved for interpretation in the aforesaid case and it is for this precise reason that even in the reference made to the larger Bench, the judgment passed earlier in Eshwarappa case has not even been mentioned. 8. In view of the above discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.