Himachal Pradesh High Court
Indro Devi vs Hari Ram Malhotra And Ors. on 12 September, 1996
Author: R.L. Khurana
Bench: P.K. Palli, R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. This appeal has been directed against the award dated 16.5.1994 of the Motor Accidents Claims Tribunal (II), Solan, camp at Nalagarh, hereinafter referred to as 'the Tribunal', whereby the claim petition made by the appellant, hereinafter referred to as 'the claimant' under Section 166 of the Motor Vehicles Act, 1988 was dismissed.
2. Briefly stated, facts of the present case are that the claimant on 5.4.1992 at about 11.30 a.m. was walking on a road in village Dadi Kanian in the company of 3-4 other persons when bus No. HP-02-1503 driven by respondent No. 2 and belonging to respondent No. 1 came from behind and knocked her down. The right leg of the petitioner came under the wheel of the bus and was seriously injured. The claimant was shifted to Rural Hospital, Nalagarh from where she was referred to P.G.I., Chandigarh for further medical treatment. The right leg of the claimant was amputated and she remained admitted in the P.G.I., Chandigarh till 11.5.1992. The claimant approached the Claims Tribunal seeking compensation of Rs. 1,00,000/-for the bodily injuries sustained by her by averring that the accident had taken place due to rash and negligent driving on the part of respondent No. 2.
3. Respondent Nos. 1 and 2, owner and driver respectively of the bus, denied the rash and negligent driving on the part of respondent No. 2 and it was averred that the claimant who is an old lady of about 70 years of age fell down of her own and struck against the rear portion of the bus and thereby suffered injuries.
4. Respondent No. 3, the insurer of the bus denied the accident. It denied its liability on the ground that the concerned bus was not insured with it. Alternatively, it was averred that the driver was not holding a valid driving licence and that the respondent Nos. 1 and 2 were not possessed of valid documents, namely, registration certificate, route permit and fitness certificate.
5. The learned Tribunal upon appreciation of the evidence led before it came to the conclusion that the accident was not as a result of rash and negligent driving on the part of respondent No. 2. The claim petition preferred by the claimant was accordingly dismissed vide the impugned award and she was held to be not entitled to any compensation.
6. It will not be out of place to mention that on an application having been made under Section 140, Motor Vehicles Act, 1988, the claimant was awarded a sum of Rs. 12,000/- as compensation under no fault liability vide order dated 14.12.1992 of the learned Tribunal.
7. The claimant has assailed the findings of the learned Tribunal before this Court by way of present appeal. It is contended that the accident was as a result of rash and negligent driving on the part of respondent No. 2. The learned Tribunal has failed to appreciate the evidence on record which successfully proves the rash and negligent driving on the part of respondent No. 2.
8. Alternatively, it has been contended on behalf of the claimant that since Section 140, Motor Vehicles Act, 1988 has come to be amended vide Amendment Act, 1994 with effect from 14.11.1994, whereby the amount of compensation under no fault liability in the case of permanent disability has been raised from Rs. 12,000/- to Rs. 25,000/-, the claimant is entitled at least to the said amount of Rs. 25,000/-under no fault liability.
9. We have heard the learned Counsel for the parties and have also gone through the record of the case.
10. While claiming compensation under Section 166 of the Motor Vehicles Act, 1988, the petitioner has averred that on the relevant date she was walking towards the house of her relation in village Dadi Kanian on the extreme left side of the road when the bus belonging to respondent No. 1 and being driven by respondent No. 2 came from behind and struck her, as a result of which she had fallen down and her right leg came under the front wheel of the bus thereby causing grievous injuries to her.
11. Exh. P-1 is the copy of the first information report made to the police with regard to the present occurrence. This report was made by the claimant herself at Rural Hospital, Nalagarh where she was carried after the accident. A perusal of this report also shows that the claimant has stated therein that while she was walking on the road, the bus being driven by respondent No. 2 came from behind and struck her, as a result of which she fell down and her leg was crushed under the wheel of the bus.
12. As against the case made out in the claim petition as well as in the first information report Exh. P-l, the claimant while appearing as her own witness as PW 1, has stated that while walking on the road she had fallen down of her own as a result of which her leg was crushed under the wheel of the bus which was coming from behind. The case made out during the course of evidence by the claimant herself is, therefore, absolutely at variance with the pleadings. The claimant as PW 1 has categorically admitted that she had fallen down on the road of her own while walking and that her right leg came under the wheel of the bus which was coming from behind. This part of the statement of PW 1 corroborates the case set up by respondent Nos. 1 and 2 that claimant while walking on the road had fallen down of her own and while fallen so, she happened to strike against the rear wheel of the bus.
13. As per petitioner's own case, at the relevant time she was accompanied by 3-4 other persons. Surprisingly enough, none of such persons has been examined in the present case to prove the cause of accident. Save and except the statement of the claimant herself as PW 1, no other evidence has been led to prove the cause of accident. The persons who were accompanying the claimant at the relevant time were most material witnesses to show as to how the accident had taken place and on the failure of the petitioner to examine such witnesses, an adverse inference will have to be drawn against the claimant.
14. Considering the entire evidence coming on the record, the learned Tribunal has rightly come to the conclusion that the accident was not as a result of rash and negligent driving on the part of respondent No. 2. The learned Tribunal was, therefore, justified in dismissing the claim petition of the claimant by holding that she was not entitled to any compensation under Section 166 of the Motor Vehicles Act, 1988.
15. It has been contended on behalf of the claimant that even though the claimant has not been held entitled to any compensation under Section 166 of the Motor Vehicles Act, 1988, she is entitled to compensation under Section 140 of the Motor Vehicles Act, 1988 and in view of the amendment carried out by Amendment Act, 1994 with effect from 14.11.1994, she is entitled to minimum compensation of Rs. 25,000/- as against Rs. 12,000/-awarded by the Tribunal. It has further been contended by the learned Counsel for the claimant that the amendment made to Section 140 of the Motor Vehicles Act vide Amendment Act of 1994 is retrospective in its application and in support of his contention, he has relied upon a decision of Division Bench of this Court in Oriental Insurance Co. Ltd. v. Khem Chand F.A.O. (MVA) No. 205 of 1995; decided on 16.7.1996.
16. In the case relied upon by the learned Counsel for the claimant, in the accident which took place on 16.6.1994 one person had died. His legal heirs preferred a petition under Section 140 of the Motor Vehicles Act seeking compensation under no fault liability. The learned Tribunal while allowing the said application awarded compensation of Rs. 50,000 to the claimants in the said case under no fault liability. The insurance company came up in appeal before this Court contending that since the accident had taken place prior to coming into force the Amendment Act, 1994, the liability under Section 140 of the Motor Vehicles Act was limited to Rs. 25,000/-. The appeal filed by the insurance company was dismissed and it was held that the amendment made to Section 140 of the Motor Vehicles Act, 1988 vide Amendment Act, 1994 raising the amount of compensation from Rs. 25,000/- to Rs. 50,000/- under no fault liability was retrospective in operation.
17. Motor Vehicles Act, 1988 envisages two kinds of liability for payment of compensation, that is, on the principle of no fault as enumerated under Section 140 of the Motor Vehicles Act and secondly, on the principle of tortious liability as enumerated under Section 166 of the Motor Vehicles Act, 1988. In the case of a claim under no fault liability, a claimant is not required to plead and establish that death or permanent disablement in respect of which claim has been made was due to any wrongful act, neglect or default of the owners of the vehicle or the vehicles concerned or of any other person.
18. In the present case as on 14.12.1992, when the award under Section 140 of the Motor Vehicles Act was made by the learned Tribunal, Section 140 of the Motor Vehicles Act provided for maximum compensation of Rs. 12,000/- in the case of permanent disablement. Such amount admittedly was awarded in favour of the claimant and has since been received by her. No appeal was preferred by the claimant against the award dated 14.12.1992 whereby compensation of Rs. 12,000/-was awarded in favour of the claimant. The said order has become final as between the parties.
19. Section 173 of the Motor Vehicles Act provides for an appeal against the award of the Tribunal. The term 'award' has not been defined in the Motor Vehicles Act. However, the fact cannot be lost sight of that the claim for compensation whether under Section 140, Motor Vehicles Act or under Section 166 of the Motor Vehicles Act has to be considered and determined by the Tribunal. No distinction can be made in the determination of compensation by the Tribunal between Section 140 and Section 166 of the Motor Vehicles Act. The authority concerned to decide the claims under both these sections is the same. There would not be a correct distinction between the claim determined under the two sections of the same Act by considering the claim determined under Section 166 of the Act as an award and by not considering the claim determined under Section 140 of the Act as an award. Therefore, determination of the compensation under Section 140 of the Motor Vehicles Act would be an award for the purpose of appeal under Section 173 of the Act. In Oriental Insurance Co. Ltd. v. Khem Chand (supra), this Court was dealing with an appeal against the award made by the Tribunal under Section 140 of the Motor Vehicles Act, 1988.
20. In view of the fact that no appeal was filed by the claimant against the award dated 14.12.1992 made under Section 140 of the Motor Vehicles Act, 1988 and the said award having become final as between the parties, the claimant cannot agitate the claim for compensation awardable under Section 140 of the Motor Vehicles Act as amended by the Amendment Act of 1994 in an appeal filed against the award made under Section 166 of the Motor Vehicles Act, 1988.
21. The position would have been different if while deciding the claim petition under Section 166 of the Motor Vehicles Act, 1988, the claimant was held entitled to compensation for the tortious act of the respondent Nos. 1 and 2 and was then awarded the minimum compensation as provided under Section 140 of the Motor Vehicles Act.
22. Therefore, we hold that consequent upon the dismissal of claim petition under Section 166 of the Motor Vehicles Act on the ground that the accident was not as a result of rash and negligent driving on the part of the respondent No. 2, the claimant cannot re-agitate the claim of compensation awarded to her under Section 140 of the Motor Vehicles Act in the appeal filed against the dismissal of her claim petition under Section 166 of the Motor Vehicles Act.
23. Consequently, the present appeal fails and the same is accordingly dismissed leaving the parties to bear their own costs.