Patna High Court - Orders
Veena Devi & Ors vs Ram Nandan Prasad & Ors on 31 January, 2013
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.462 of 2006
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1. Veena Devi, widow of Late Gopal Ram
2. Laxman Kumar
3. Ramji Kumar
4. Shatrughan Kumar
All minor sons of Late Gopal Ram under the guardianship of their natural
guardian their mother Veena Devi who has no adverse interest against her
aforesaid minor sons.
5. Guriya Kumari
6. Laxmi Kumari
7. Uday Kumari
All minor daughters of Late Gopal Ram under the guardianship of their
natural guardian their mother Veena Devi who has no adverse interest
against her aforesaid minor daughters.
All aforesaid appellants residents of village Bargaon, P.S. & District -
Nalanda, at present residency in the house of Vishwanath Pandey, Sumitra
Market, Raja Bazar, P.S. - Shastri Nagar, District - Patna. (Claimants in the
court below).
.... .... Appellants
Versus
1. Ram Nandan Prasad, son of Sri Pragas Singh, resident of village -
Bhadari, P.S. & District - Nalanda at present resident of Nalanda Chowk,
P.S. & District - Nalanda (owner of Trekker No. BR-21-5744)
Opposite Party no. 1 in the court below.
2. Raja Ram Singh, son of Ram Hari Prasad @ Hari Singh, resident of
village - Silaodih, P.S. - Silao, District - Nalanda.
(Driver of Trekker No. BR-21-5744)
3. National Insurance Co. Ltd. Through its Divisional Manager, Division No.
1, Exhibition Road, Patna. (Insurer of Trekker No. BR-21-5744)
(O.P. No. 3 in the court below)
4. Shri Sanjay Prasad, son of Shri Brahmdeo Prasad Sahi, Paradise Tourist
and Travel Rajgir, P.S. - Rajgir, District - Nalanda. (Owner of BR-21-
5011).
(O.P. No. 4 in the court below)
5. Doman Singh @ Deobans Singh, son of Deo Nath Singh, resident of
village - Raju Bigha, P.S. - Nalanda, District - Nalanda.
(O.P. No. 5 in the court below)
6. Oriental Insurance Co. Ltd. Through its Regional Manager, Regional
Office, Pirmuhani, Near Uma Cinema, District - Patna. (Insurer of Bus
No. BR-21-5011)
(O.P. No. 6 in the court below)
.... .... Respondent/s
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Appearance :
For the Appellants : Mr. Subhash Pandey, Adv.
Mr. Sanjay Kumar Verma, Adv.
Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 2
For the Respondent No. 3 :
Mr. Ashok Priyadarshi, Adv.
Mr. Harendra Kumar, Adv.
For the Respondent No. 6 : Mr. Sanjay Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL ORDER
13 31-01-20131. This is an appeal preferred against order dated 7.9.2006 passed by 3rd Additional District Judge-cum-Claim Tribunal, Patna, in claim case no. 133/2003 filed by the claimant appellant, dismissing the claim application on the solitary ground that since it is independently filed under section 140 of the Motor Vehicle Act, (hereinafter referred to as the „Act‟) is not maintainable.
2. The relevant short fact is that the deceased Gopal Ram husband of appellant no. 1 and father of remaining appellants died in a road accident on 4.7.1996 involving bus bearing no. BR-21-5011 and Trekker bearing no. BR-21-5744 and police case bearing Silao (Nalanda) P.S. Case No. 239/1996 was also registered under Section 279, 337, 338 and 304(A) of the Indian Penal Code.
3. The deceased was traveling from Trekker and due to head injury he had to loose his life and in support of the claim on behalf of petitioner appellants copy of First Information Report of Silao (Nalanda) P.S. Case No. 239/1996, post mortem examination report and death certificate of the deceased was filed in the case instituted against the owner of the vehicle and insurer also, wherein after hearing the court Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 3 below, relying on a Single Bench decisions of this court in a case of Divisional Manager, Oriental Insurance Co. Ltd. Vs. Gulzari Kuer reported in 1999(1) PLJR 872, dismissed the application.
4. It is contended on behalf of the appellants by learned counsel Sri Sanjay Kumar Verma, that this issue has already been decided by division bench decision of this court in LPA No. 170/2001 in a case New India Assurance Co. Ltd. Vs. Faida Hussain reported in 2001(4)PLJR 557 and the decision of Single Judge Bench of this Court relied upon by the claim tribunal has already been overruled. On the other hand, learned counsel representing the insurer referring certain provisions of the Act and relying upon decision of the Apex Court in cases of Yallwwa & Ors. vs. National Insurance Co. Ltd. reported in AIR 2007 SC 2582; Eshwarappa alias Maheshwarappa and Anr. Vs. C.S. Gurushanthappa and Anr reported in AIR 2010 SC 2907; Oriental Insurance Co. Ltd. Vs. Dhanbai Kanji Gadhvi and Ors. reported in AIR 2011 SC 1138 and cases between AIR 2011 SC 1138 and 2012(4) SCC 552 = 2012 ACJ 1305 (Surendra Kumar Arora and Anr. Vs. Dr. Manoj Bisla and Ors.), submitted that the claimants have only two options for realizing the claims either to file an application on no fault basis under Section 163A of the Act or on fault basis under Section 166 of the Act. The benefits as mentioned in Section 140 of the Act is ad Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 4 interim, it can be claimed only in the applications preferred under aforesaid two provisions of the Act, but, the insurer has no liability, if any, application is preferred under Section 140 of the Act independently. It is further contended that multiplicity of the proceedings is prohibited and here provisions as contemplated under Order II Rule 2 of the Code of Civil Procedure also, if any claim, independently, under Section 140 is preferred, comes into play and becomes final.
5. In this appeal wherein short but significant question is to be determined:
1. Whether application under Section 140 of the Act independently is maintainable ? if so, whether it debarring the claimant from exercising rights under other provisions of Act and also whether the insurer is liable to pay the compensation to the claimants
6. It is undisputed position that the Act provides two criteria for compensation to the claimants in the matter of motor accident on principle of either fault or no fault, and Section 140 of the Act is on principle of no fault. Here, before going through the different pronouncements relied upon by the learned counsels, it is better to first examine provisions as contemplated under Section 140 of the Act which reads as such:
Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 5
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.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of [twenty five thousand rupees.] (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (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 Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 6 death of 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.
[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.] (bold and underline by me)
7. From plain reading of Section 140(1)&(5) of the Act aforestated, it is clearly evident that the liability to compensate the damages and loss caused to the claimants are to be made good by the owner or owners of the offending vehicle.
8. In order to deal with the claims on principle of no fault besides Section 140 of the Act, there are other provisions as subsequently introduced in the year 1994 such as Sections 163 (A) & (B) which read as such: Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 7
163A. Special provisions as to
payment of compensation no
structured formula basis - (1)
Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens Compensation Act 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 8163B. Option to file claim in certain cases - Where a person is entitled to claim compensation under section 140 and section 163A he shall file the claim under either of the said sections and not under both.
(bold and underline by me)
9. As indicated above, the law makers in similar type of matters i.e. claim on principle of no fault, have provided two types of options to avail by the claimants and in both such applications as is evident from sub-clause (3) of Section 140 and sub-section (2) of Section 163(A) of the Act, the claimants are not required either to plead or establish that death or permanent disablement in respect of which the claim has been made, was due to any wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or of any other person. But at the same time, sub-clause (1) of Section 140 and Section 163(A) of the Act, differentiates amongst the persons liable to compensate the claimants. In Section 140 of the Act only owner or owners of the vehicle is made liable whereas in Section 163(A) of the Act, the insurer of the vehicle has also been made equally liable in lieu of the owner in appropriate case.
10. These differences have been considered and discussed by the Apex Court in a case of Yallwwa & Ors. vs. National Insurance Co. Ltd. reported in AIR 2007 SC 2582, Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 9 paragraph nos. 9, 10, 11, 16 and 17 of which reads as such:
"9. It is not in dispute that an award of the Tribunal is to be made in terms of Section 168 of the Act. For the said purpose, the Tribunal is required to issue a notice to the insurer and give the parties an opportunity of being heard. While making an award in terms of Section 168 of the Act, the procedure laid down under Section 166 of the Act are required to be complied with. The provision appended to Section 168 of the Act, however, lays down that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death of permanent disablement shall be disposed of in accordance with the provisions of Chapter X of the Act. Section 140, as noticed hereinbefore, provides for no fault liability. It uses the words "accident arising out of the use of a motor vehicle", the owner of the vehicle and when more than two vehicles are involved, "the owners of the vehicles" shall, jointly and severally, be liable to pay compensation.
10. The said provision, therefore, makes the owners of the vehicles liable but not the insurer per se. irrespective of the fact whether a claim petition is required to be Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 10 adjudicated under Chapter X or Chapter XII of the Act. It is permissible to raise a defence in terms of sub-section (2) of Section 149 of the Act. Even it is possible for the owner of the vehicle being not involved in the accident, he is not liable to pay any amount in terms of Section 140 of the Act.
11. One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an insurance company shall also be liable to deposit the amount while it has no fault whatsoever in terms of sub-section (2) of Section 147 of the Act."
16. -------------- Although in a given situation having regard to the liability of the owner of the vehicle, a Claim Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the insurance company, in our opinion, stands on a different footing. When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefore."
And lastly in paragraph 17 it held as such: Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 11
17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.
11. It is also evident from the decision of the Apex Court that earlier decision of this court in a case Oriental Insurance Co. Ltd. V. Mohiuddin Kureshi alias Md. Moya and Others reported in 1994(1)PLJR 79 = 1994(1)ACJ 74 (Pat) also stands approved wherein paragraph 11 reads as such:
"11. From a conjoint reading of the aforementioned provisions, there cannot be any doubt that an application under Section 140 of the said Act can be filed separately.
However, Section 166 of the said Act contemplates filing of a composite application, as is evident from the proviso appended to sub-section (2) of Section 166 of the said Act."
12. There is another Division Bench decision of this court in a case reported in 2001(4) PLJR 557 (supra) which without noticing earlier decision has also arrived at the same conclusion that independent application under section 140 of Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 12 the Act is well maintainable. Thus, now there cannot be any dispute on this issue.
13. And it is equally true that law makers have provided the claimants to come forward for their claims under no fault basis either under Section 140 or Section 163(A) of the Act, but, at the same time, such claimants are precluded from coming forward with two independent applications under both the sections. As is crystal clear from the provision as contemplated under Section 163(B) aforestated which clearly means that on principle of no fault the claimants may have only two options either to claim for a fixed amount as prescribed under Section 140 of the Act or as per Schedule - II based on structured formula but if the claimants comes forward under Section 140 of the Act independently they can have no claim under Section 163(A) of the Act.
14. What more evident from the decision of Apex Court (supra) is that normally as per terms of insurance, the insurer is to indemnify the liability of the owner of the offending vehicle but that can only be possible when the insurer is given notice and also opportunity to raise all possible objections denying or minimizing the liability and claim tribunal is to arrive at any decision on such objection before making the insurer liable. But at the same time it cannot be ignored that the time consumed in completing such requirement and Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 13 formalities, may frustrate the very purpose of making provision of ad interim compensation, which is required to be paid at the earliest within prescribed time just by way of immediate consolation to the claimants for the loss suffered. Such loss of time may be saved if claim is made under other available provisions of the Act and right under Section 140 of the Act is exercised by way of ad interim compensation which may be made by insurer subject to the result of dispute between insurer and owner, if any.
15. Another provision for claim is Section 166 of the Act, but based on the determination of the fault and the application for compensation under this provision may be preferred in the light of provision under Section 165 of the Act which reads as such:
165. Claims Tribunals - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such are as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising or both.
Explanation - For the removal of doubts, Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 14 it is hereby declared that the expression "claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A] (2) ----------------------
(3) ---------------------
(4) ---------------------
And here initially the claim for compensation included only the claim under section 140 of the Act but subsequently section 163(A) is also inserted.
16. It goes to show that application under section 166 of the Act, the claimant may also seek the remedy as provided under section 140 of the Act, and the law is clear on the point that if any amount is paid to the claimant under section 140 of the Act, it is to be adjusted in subsequent payment in this regard, if any.
17. It would not be out of place to mention that in the case reported in AIR 2010 SC 2907 (supra) the point in issue was different one, but one thing was made clear in paragraph 17 of the judgment which reads as such:
"17. The provisions of section 140 are indeed intended to provide immediate succor to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 15 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. And in a case reported in AIR 2011 SC 1138 (Supra); there was a conflict whether the claimant has right to proceed under section 163(A) and 166 of the Act both or not and it is held in paragraph 12 and 13 of the judgment as such:
12. However, in Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd.
Baroda (2004) 5 SCC 385: (AIR 2004 SC 2107), the question which was considered by a three Judge Bench of this Court was whether a proceeding under Section 163A of the Motor Vehicles Act, 1988 is a final proceeding, by reason whereof, the claimant who has been granted compensation under Section 163A, is debarred from proceeding with any further claims on the basis of fault Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 16 liability in terms of Section 166. After considering the scheme envisaged by Section 163A of the Act, it is held in the said case that Parliament intended to pay down a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation. What is ruled therein is that the compensation determined and paid under Section 163A of the Act is final and not an interim one. The clear preposition of law which emerges from the decision of this Court in Deepal G. Soni (supra) is that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. As explained by this Court in the said decision, a claimant, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both."
13. Applying the principle laid down in Deepal Soni (supra) to the facts of the case, it will have to be held that the respondents having obtained compensation, finally determined under Section 163A of the Act are precluded from proceeding further with the petition filed under Section 166 of the Act. The exception mentioned by the learned Single Judge in the impugned judgment that Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 17 a petition under Section 166 of the Act can be proceeded further if it is filed before passing of an award passed under Section 163A of the Act is not supported by the scheme envisaged under Sections 163A and 166 of the Act and is contrary to the principle of law laid down by this Court in Deepal Soni‟s case. Therefore, this Court is of the opinion that the impugned judgment of the High Court upholding the order passed by the Tribunal to permit the respondents to proceed further with the petition filed under Section 166 of the Act cannot be sustained and will have to be set aside.
19. Similar is the view taken by the Apex Court in the case reported in 2012 (4) SCC 552 (supra) wherein decision of the Apex Court in a case of Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors. reported in 2007 ACJ 1284 SC Wherein it is held as such:
"... Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But, if they proceed under Section 163A of the Act, the compensation will be awarded in Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 18 terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."
20. On the basis of aforesaid discussions, it is crystal clear that the claimants are required to frame their claims in a manner it may reach at its finality preventing multiplicity of litigations and this analogy is almost similar to the provision under Order II Rule 1 Code of Civil Procedure which speaks as such:
"1. Frame of Suit - Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them."
21. True it is that though the claimants under the Act have been provided opportunities to come forward for redressal of their grievances under different provisions of the Act based on principle of fault or no fault, but at the same time, they are precluded from proceedings simultaneously/independently under different Sections of the Act. No doubt, the benefits provided under Section 140 of the Act is initially ad interim in nature but that too cannot be proceeded independently and simultaneous with another claim under section 163A i.e. on same principle of no fault, and if any independent claim is made under section 140 of the Act, Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 19 claimants are debarred from proceeding under section 163A of the Act in view of the clear mandate as contemplated under section 163B of the Act and the law as decided by the Apex Court in different cases is clear that once a claim based on principle of no fault under section 163A of the Act is opted the claimants have further been precluded from coming forward for their claims under Section 166 of the Act based on the principle of on fault.
22. The intention of the law makers appears very much clear that there be no scope left for multiplicity of the proceedings, in creating undue burden upon the system which to cope with the pressure started taking shelter of alternative dispute redressal system but still is heavily burdened and thus, the claimants are held not entitled to stretch the owner of the offending vehicle or the insurer under series of litigations for same accident/cause of action, they are bound to take a decision and opt for anyone of the options suitable to them. No doubt in order to provide benefits at the earliest there is provision to bring an application under section 140 of the Act, as a component to the main application, under other provisions of the Act, by way of ad interim compensation, but when the claimants choose to come forward under section 140 of the Act independently not as composite application, they are not only debarred from coming forward under Section 163A of the Act Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 20 for structural compensation on the principle of no fault but also under section 166 of the Act. Which also appears in consonance with the principle enunciated in Order II Rule 2 of the code of civil procedure, stated below.
2. Suit to include the whole claim - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim -
Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
23. On the discussion made above, in the given case the claim application under Section 140 of the Act is not barred under any law. But at the same time the claimant appellant may have an opportunity to decide and opt either to proceed with it as a separate and independent application under section Patna High Court MA No.462 of 2006 (13) dt.31-01-2013 21 140 of the Act, and be satisfied with the prescribed fixed amount of compensation or to get the same converted into an composite application extending the claim to a larger extent of their choice/suitability with a relief under Section 140 of the Act by way of ad interim compensation therein, and do the needfuls with due intimation and leave of claim tribunal strictly within a month.
24. In the result, order of the claim tribunal is set aside, appeal is hereby allowed, and matter is remitted to the claim tribunal to proceed expeditiously in the light of observations made above.
Patna High Court (Akhilesh Chandra, J.) Date : 31st January 2013 Rajeev/- A.F.R.