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2017 DIGILAW 192 (MP)

Chairman Managing Director v. Kamala Bai

2017-02-06

SANJAY YADAV

body2017
JUDGMENT : Sanjay Yadav, J. 1. Heard on admission. 2. On 14.5.2015 a Bus bearing registration No.20GA5176 carrying a marriage party met with an accident when it came in contact with high tension electric line which led to passing of current through entire bus resulting in injuries and causalities. One of the passenger who lost life was Jena Bai mother of respondent no.1. In a claim case filed under the Motor Vehicles Act 1988, compensation of Rs.3,84,400/- was awarded in favour of the respondent no.1 against the owner and driver of the offending vehicle. 3. As the accident had occurred due to high tension electric line coming in contact with the bus in question, respondent no.1 brought a proceeding under the provision of The Public Liability Insurance Act 1991 (hereinafter to be referred to as "Act of 1991") Additional Collector, who was in seisin with the matter while negativing the objection raised by the petitioners as to maintainability of the proceedings on the ground that the claimant having already availed the remedy under the Act of 1988 cannot for the same accident file a claim under 1991 Act and that Additional Collector has no jurisdiction to entertain the claim and that it was the negligence of the driver which led to the accident, awarded the compensation of Rs.25,000/- holding that it being the primary responsibility of the petitioners herein to maintain the high tension Electric supply line and having failed to prove to have discharged their duty to maintain the same which resulted in the accident. 4. Aggrieved of the order present writ petition is filed on the ground that the petitioner does not fall within the sweep of the expression "owner" as defined under Section 2(g) of 1991 Act. That it was the negligence of driver which resulted in the bus coming in contact with live high tension electric line. That the Additional Collector usurped the powers of the Collector who is the only Authority to entertain claim under 1991 Act. 5. Act of 1991 was enacted to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident occurring which handling any hazardous substance and for matters connected therewith or incidental thereto. 6. 5. Act of 1991 was enacted to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident occurring which handling any hazardous substance and for matters connected therewith or incidental thereto. 6. The expression "hazardous substance" under Section 2(d) means "any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act 1986 and exceeding such quantity as may be specified, by notification by the Central Government". Similarly, expression "handling" find its meaning under Section 2(c) of 1991 Act "in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage, transportation by vehicle use, Collector, destruction, conversion, offering for sale, transfer or the title of such hazardous substance. 7. Electricity is a hazardous substance, is not in dispute, nor it is an issue in the case at hand. 8. Section 3 of 1991 Act mandates for liability to give relief in certain cases on the principle of no fault. Sub Section (1) whereof provides for that where death or injury to any person (other than a workman) or damage to any property has resulted from an accident the owner shall be liable to give such relief as is specified in the schedule for such death, injury of damage". The expression "owner " is defined under Section 2 (g) to mean: "(a) person who owns, or has control over handling any hazardous substance at the time of accident and includes,- (i) in the case of firm, any of its partners; (ii) in the case of an association, any of its members; and (iii) in the case or a company, any of its directors, managers, secretaries or other officers who is directly in charge of, and is responsible to the company for the conduct of the business of the company" 9. It is not in dispute that the petitioner is the owner of the electricity which was being run through high tension electric wire which is also owned by the petitioner. 10. Sub Section (2) of Section 3 of 1991 Act stipulates" (2) In any claim for relief under sub-Section (I) (hereinafter referred to in this Act as claim for relief), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. Explanation.-For the purpose of this Section,- (i) "workman" has the meaning assigned to it in the Workmens Compensation Act, 1923 (8 of 1923); (ii) "injury" includes permanent total or permanent partial disability or sickness resulting out of an accident. 11. Thus primary and ultimate onus is on the owner of hazardous substance to discharge the burden as to how the hazardous substance has been maintained and handled. It does not get shifted on the claimant. 12. That an application for claim lie under Section 6 of the 1991 Act which stipulates" "6. (1) An application for claim for relief may be madea) by the person who has sustained the injury; (b) by the owner of the property to which the damage has been caused; (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by such person or owner of such property or all or any Of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for relief, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. (2) Every application under sub-Section (I) shall be made to the Collector and shall be in such form, contain such particulars and shall be accompanied by such documents as may be prescribed. (3) No application for relief shall be entertained unless it is made within five years of the occurrence of the accident." 13. Thus as per clause (c) of sub Section (1) of Section 6 of 1991 Act, a legal representative of a deceased can file an application under Section 6 for claim. No statutory provisions has been commended at to establish that the claimant having availed the remedy for compensation against the owner and driver of the vehicle involved is precluded from filing a claim under the Act of 1991. Since there is no statutory bar in raising a claim against the owner of hazardous substance. Therefore, the contention that having availed the remedy under the 1988 Act the respondent claimant has precluded from raising claim under the 1991 Act, stands negatived. 14. Since there is no statutory bar in raising a claim against the owner of hazardous substance. Therefore, the contention that having availed the remedy under the 1988 Act the respondent claimant has precluded from raising claim under the 1991 Act, stands negatived. 14. Now coming to the contention regarding competency, it is contended that sub-Section (2) of Section 6 of 1991 Act envisages that every application under sub Section (1) shall be made to the Collector, who as per definition Section 2(b) is the Collector having jurisdiction over the area in which the accident occurred. An additional Collector, it is urged have no jurisdiction to entertain an application; therefore, the impugned order which is passed by the Additional Collector is non-est in the eyes of law having jurisdiction. The submissions are attractive in the first blush, however, on a deeper probe the contention deserves to be over ruled. The reasons being that there is no specific definition of the Collector under Section 2(b) of 1991 Act which only says having jurisdiction over the area in which accident occurs. Therefore to know who is the Collector, aid of General Clauses Act 1897 has to be taken. Under Section 3 (11) "Collector" mean in a Presidency town, the Collector of Calcutta, Madras or Bombay, as the case may be, and else where the chief officer in charge of the Revenue Administration of a District. Similar definition appears under Section 2 (6) of Madhya Pradesh General clauses Act 1957 which defines Collector to mean " the Officer in charge of the Revenue Administration of a District". 15. A Bench of this Court had an occasion to interpret the definition of Collector as it appears under Section 2(6) of 1957 Act to include "Additional Collectors" in kaushal Prasad Kashyap v. State of M.P. And others: 1999(1) MPLJ 455 wherein it is held : "6. In the notification of delegation the State Government has delegated the power to the 'Collector' and the word 'Collector' has to be understood from the provisions of the Code. In relation to provision of the Code and also in relation of any other enactment 'Collector' would include 'Additional Collector' as provided in Section 17(2), (3) of the Code. It cannot, therefore, be said that under the notification of delegation the Collector has made any further delegation in favour of Additional Collector. In relation to provision of the Code and also in relation of any other enactment 'Collector' would include 'Additional Collector' as provided in Section 17(2), (3) of the Code. It cannot, therefore, be said that under the notification of delegation the Collector has made any further delegation in favour of Additional Collector. Under the notification of delegation itself, the word 'Collector' would include 'Additional Collector'; in accordance with the work distribution memo, issued under Section 17 of the Code. This Court in the unreported decision (supra) has taken a similar view, while deciding the competence of 'Additional Commissioner' to exercise powers of 'Commissioner' in deciding an election petition. The two decisions cited on behalf of the respondents fully support them where provisions of the Code and of M.P. General Clauses Act were resorted to for rejecting a similar contention. The decisions cited on behalf of the petitioner are distinguishable. In the instant case there is no case of a delegatee further delegating his powers. The maxim relied is mainly attracted to subordinate legislation and not to exercise of statutory or administrative powers." 16. The said decision has been relied in Smt. Johara, v. State of M.P. and others: 2001 (1) MPHT 154 wherein it is held that Section 17 (3) of the M.P. Land Revenue Code inter alia says that any other enactment for the time being in force or rule made thereunder shall apply to the Additional Collector except where expressly directed otherwise. This Court does not find any restriction made in the general order or in the Adhiniyam debarring the Additional Collector from hearing the appeal. 17. In this context reference can also be had of the decision by a Division Bench of our Court in Shanti Lal Jain v. M.L.Patil commissioner Gwalior DN Gwalior and others : 1988 MPLJ 172 wherein it is held: "3. It is very clear that the Collector is in-charge of Revenue Administration of the District as appears from Section 2(6) of the General Clauses Act and in accordance with the provisions of Section 17 of the Code as also Section 17 of the General Clauses Act the Government has a power to appoint Additional Collector who may discharge all or any of the duties of functions not only envisaged under the Code but also" under any other enactment for the time being in force". It is not the petitioner's case that under the Scheme aforesaid there is an express prohibition against the Additional Collector's exercising any power under the Scheme. Indeed, it is also not his case that in virtue of any "general or special restriction", contemplated under Section 17(2) of the Code, the Collector was disabled from transferring to the Additional Collector for disposal the appeal filed before him under the Scheme. 5. Counsel has relied on the decision in Budhoolal, 1964 M.P.L.J. 887= 1964 JLJ 580 , but we are not at all convinced that the view we have taken militates against that taken in the decision cited for the reason that the provisions we have considered never came up for the consideration of their Lordships in the case. Who is a"Collector" under M.P. Public Trusts Act, 1951 was the question that was considered in that case and it was held that he was a persona designata under that Act which did not define the said term. There was no occasion for this Court to refer to the provisions of M.P. General Clauses Act or M.P. Land Revenue Code." 18. In view whereof, the contention raised on behalf of the petitioner as to Additional Collector lacking jurisdiction to entertain and decide an application under Section 6 of 1991 Act fails. 19. Taking any view of the matter, the impugned order cannot be faulted with as would warrant an indulgence. Though this Court is not oblivious of the fact that a notice on admission has been issued in a similar matter by a coordinate Bench as is evident from Annexure P/5 . However since the said writ petition is yet to be admitted and its only when a petition is admitted that it will be binding as held in Bir Bajrang Kumar v. State of Bihar and others: AIR 1987 SC 1345 , the present matter has been heard on admission and since the matter is not worth admitting it is dismissed for the reasons which find mention in the order. No costs.