Patna High Court
Oriental Insurance Co. Ltd. vs Sarju Ram And Ors. on 9 August, 2000
Equivalent citations: I(2002)ACC177, 2002ACJ177, AIR2001PAT47, 2001(49)BLJR21, AIR 2001 PATNA 47, (2000) 3 TAC 360, (2002) 1 ACJ 177, 2001 BLJR 1 21
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This appeal, at the instance of the appellant-M/s Oriental Insurance Company Ltd. is directed against the order dated 5-8-99 passed by District Judge-cum-Claims Tribunal, Hazaribagh in Claim Case No. 183/98 awarding interim compensation under Section 140 of the Motor Vehicles Act, 1988.
2. It appears that the claimants filed an application before the Claims Tribunal under Section 140 of the Act claiming interim compensation for the death of their son aged 18 years in amotor vehicle accident. The appellant Insurance Company appeared in the said case and filed show cause admitting that the vehicle was insured with the said Insurance Company. The appellant did not raise any serious objection with regard to the claim of the claimants and the Tribunal, therefore, awarded Interim compensation,
3. Mrs. Banani Verma, learned counsel appearing for the appellant, assailed the order solely on the technical ground that the claims tribunal ought not to have entertained the application under Section 140 of the Act as no application under Section 166 of the said Act was filed by the claimants. Learned counsel, in this connection, relied upon a decision of a Bench of this Court in the case of Divisional Manager, Oriental Insurance Company v. Guljari Kuer (1999) 1 PLJR 872.
4. Having regard to the submission made by the learned counsel the only question falls for consideration is as to whether the application under Section 140 of the Act filed by the claimants for interim compensation can be entertained in absence of any claim made by the claimants under Section 166 or any other provisions of the Motor Vehicles Act.
5. Before answering the question. 1 shall first examine the scheme of the Act by referring different provisions made thereunder. Chapter X deals with the liability on the principle of no fault. It consists of Sections 142 to 144. Section 140 of the Act reads as under :
"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 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 (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 he 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.
(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 u/Section 163A."
6. From bare reading of the aforesaid provision, it is manifest that in case of death or permanent disablement of any person has resulted from an accident arising out of the use of the motor vehicle, the owner or the owners shall be Jointly and severally liable to pay compensation. In such an application the claimant is not required to plead and establish negligence. Sub-section (5) very specifically clarified that notwithstanding payment of compensation under this Chapter, the owner of the vehicle is also liable to pay compensation under any other law for the time being in force. It is, therefore, evident that claiming compensation under no fault liability under Section 140 of the Act is not dependent upon the filing of the application under Section 166 of the Act. This has also been clarified by the legislature under Section 141 of the Act, 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 Section 163A (such other right thereafter) 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 ill force.
(2) A claim for compensation under S. 140 in respect of death or permanent disablement of any person shall be disposed of expeditiously as possible and where compensation of any person shall be disposed of as expeditiously, as possible and where compensation is claimed in respect of such death of 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 tin 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."
7. On the plain reading of this provision, it is abundantly clear that such application filed under Section 140 of the Act shall be disposed of independently irrespective of the fact whether claim under Section 166 of the Act has been filed by the claimant or not. The proviso to Sub-section (1) of Section 168 also provides that where the claimant has made a claim for compensation under Section 140 of the said Act then such claim for compensation shall be disposed of in accordance with the provisions of Chapter X of the Act.
8. Section 144 is also worth to be quoted here, which reads as follows :--
"144. Overriding effect.-- The provisions of this Chapter shall have effect notwithstanding anything contained in any other provisions of this Chapter or of any other law for the time being in force."
9. The Bihar Motor Vehicles Rule's, 1992 also lays down separate procedure in the matter of disposal of claim application filed under Section 166 of the Motor Vehicles Act and Section 140 of the said Act. Rule 226 of the said rules reads as under :--
"226. Procedure regarding compensation arising out of accident.-- (1) An application for compensation under Sub-section (1) of Section 166 shall be made to the Claims Tribunal in Form Comp. A and shall contain the particulars specified in that form.
(2) Every such application shall be sent to the Tribunal or to the Chairman in case the Tribunal consists of more than one member by registered post or may be presented to such member of the staff of the Tribunal, or as the case may be, the Chairman may authorise for the purposes and if so sent presented, shall, unless the Tribunal or Chairman otherwise direct, be made in duplicate and shall be signed by the applicant.
(3) There shall be appended to every such application a certificate which shall be signed by the applicant to the effect that the statement of facts contained in the application is to the best of his knowledge and belief, true.
(4) If the claim in the application docs not exceed Rs. 10,000/- then every such application shall be accompanied by all the documents and affidavits, for the proof of those documents and of all facts on which the applicant relies in support of his claim, entered in a properly prepared list of documents and affidavits. The Claims Tribunal may not allow the applicant to rely in support of his claim on any documents or affidavits not filed along with the application, unless he satisfies the claims tribunal that for good or sufficient cause, he was prevented from filing such documents or affidavits, as the case may be, along with his application.
(5) There shall be appended to every such application the following documents namely --
(i) first information report in respect of the accident.
(ii) medical certificate of injuries or postmortem report, or death certificate, and
(iii) a certificate regarding ownership and insurance particulars of vehicles involved in the accident from the Regional Transport Officer or the Police Station, concerned."
10. On the other hand, Rule 246 prescribes the procedure regarding compensation on the principle of no fault, which reads as under :--
"246. Procedure regarding compensation on the principle of no fault.-- Notwithstanding anything contained in Rules 226, 245 and 247 in the case of a claim for compensation under Chapter X of the Act, the procedures shall be as follows, namely :--
(1) An application for compensation shall be made to the Claims Tribunal in Form CWF, in triplicate, and shall contain the particulars specified in that form.
(2) The application shall be accompanied by a fee of ten rupees in the form of court fee stamps and the following documents, namely :
(i) First Information report.
(ii) Injury certificate or post-mortem report in case of death.
(iii) Heirship certificate in case of death.
(iv) Certificate from the registering authority regarding ownership of the vehicles involved in the accident.
(v) Particulars of insurance of the vehicle involved in the accident.
(3) No fees shall be charged for process of application for compensation made under this rule.
(4) The Claims Tribunal shall dispose of the application for compensation within six weeks from the date of receipt of such application.
(5) For the purpose of adjudicating and awarding the claim, the Claims Tribunal shall follow the procedure of summary trial as contained in Chapter XXI of the Code of Criminal Procedure. 1973.
(6) The Claims Tribunal shall not reject any application made under this rule on the ground of any technical defect, but shall give notice to the applicant and get the defect rectified.
(7) For the purpose of adjudicating and according the claim the Claims Tribunal shall obtain whatever information and document considered necessary by it from the police, medical and other authorities.
(8) On receipt of the application for compensation, the Claims Tribunal shall give notice to the owner, and the insurer, if any, of the vehicle involved in the accident directing them to appear on a date not later than ten days from the date of issue of such notice. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the application for compensation. The Claims Tribunal shall state in such notice that, in case they fail to appear on such appointed date, the tribunal shall proceed ex parte on the presumption that they have no contention to make against the award of compensation, (9) The Claims Tribunal shall proceed with the application for compensation, on the basis of --
(i) First Information Report,
(ii) Injury certificate or post-mortem report in case of death,
(iii) Registration certificate of the motor vehicle involved in the accident.
(iv) Cover note, certificate of insurance or the policy, relating to the insurance, of the vehicle against third party risks,
(v) The nature of the treatment given by the medical officer who has treated the victim.
(10) The Claims Tribunal, in passing the orders, shall make an award of compensation of twenty five thousand rupees in respect of the permanent disablement, to be paid by the owner or insurer of the vehicle involved in the accident.
(11) Where compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them.
(12) The claims Tribunal, in passing the orders, shall also direct the owner or insurer, of the vehicle involved in the accident, to pay the amount of compensation to the claimant within thirty days from the date of the said orders.
(13) Where the Claims Tribunal thinks that the actual payment to the claimant is likely to take time because of the identification and the fixation of the legal heirs of the deceased, the Claims Tribunal may call for the amount of compensation awarded, to be deposited with the Tribunal, and then proceed with the identification of the legal heirs for deciding the payment of compensation to each of the legal heirs."
11. From the reading of the relevant provisions of the Act and the rules quoted hereinabove, it is clear that Chapter X of the Act prescribes independent provision for grant of interim compensation notwithstanding the pendency of any application for grant of compensation under Chapter XII of the said Act. Chapter X is clearly a departure from the usual common law principle that a claimant should establish negligence before claiming any compensation. The Supreme Court, while dealing with the provisions of Section 92-A of the Motor Vehicles Act, 1939, which deals with a similar provision for grant of interim compensation, has held as under AIR 1987 SC 1690 at pages 1697-1698 :--
This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle claiming any compensation for the death or permanent disablement caused on, account of a motor vehicle accident. To that extent the substantive law of the country stands modified."
12. In the case of Theethi v. Motor Accidents Claims Tribunal, Palakkad, AIR 1996 Karala 237, the Kerala High Court was considering a question whether the amount of compensation under Section 140 of the Act is payable without establishing the Identity of both the vehicle and wrongful act or neglect of the owners of the vehicle, which resulted in the accident causing the death. Their Lordships held that the provision of Chapter X of the Act shall have overriding effect on all other provisions contained in the Act or any other law for the time being in force, in view of Section 144. It was further held that claims under Sections 140 and 161 are separate and distinct. The provisions contained in these Sections operate in different fields. Their Lordships observed (at page 239) :--
"8. An accident can be said to be a 'hit-and-run motor accident' only when the identity of the motor vehicle or motor vehicles involved in the accident cannot be ascertained in spite of reasonable efforts made in that behalf. Section 161 of the Act is Intended to provide a scheme for granting relief to the victims of 'hit-and-run motor accident cases'. Under this provision the liability to provide a scheme for payment of compensation in such accidents is on General Insurance Corporation of India and Insurance Companies carrying on general insurance business. Claims under Ss. 140 and 161 are separate and distinct. The provisions contained in these sections operate in different fields. Though both sections contemplate an accident, the former will operate when the identity of at least one of the vehicles involved in such accident is ascertainable and the latter, when the identity of the vehicle or vehicles is unascertainable. In a claim under Section 140 as-pointed out about the claimant need not plead and prove the wrongful act or neglect of the owner or driver of the vehicle which is identified as being involved in the accident whereas in a claim under Section 161 there must be proof that the Identity of the vehicle or vehicles cannot be ascertained in spite of reasonable efforts in that behalf. When identity of the vehicle is ascertained it may not be be a case of 'hit-and-run motor accident'. I have already found that when the identity of one of the vehicles involved in the accident is ascertained the claim under Section 140 cannot be rejected. Therefore, the view adopted by the Tribunal cannot be held to be correct.
13. In the case of Munshiram D. Anand v. P.P. Anand Society, Jamnagar, AIR 1997 Gujarat 60, a similar question was considered by a Bench of the Gujarat High Court. Their Lordships after considering the scheme of the Act, held as under (at page 63) :--
"It is pertinent to note that Section 140 nowhere prescribes the period of limitation within which an application for interim compensation can be made. It also does not provide that for filing an application or a petition for interim compensation, one must always file a petition for compensation under Section 166. In other words, lodging of a petition for compensation under Section 166 is not a condition precedent to filing of a petition for interim compensation on the principle of no fault liability. However, Mr. Phave very strenuously urged before the Court that if ultimately no petition for compensation is filed under Section 166, it would amount to giving wide spectrum to Section 140 of the Act as person would simply file application for interim compensation and may not file the substantial petition for compensation. In the alternative, he submitted that when the substantial petition for compensation Itself is dismissed on the ground that it is beyond the prescribed period of limitation, an application for interim compensation under Section 140 could not be entertained by the Tribunal. Ordinarily, the situation as put before this Court in the first part of submission of Mr. Phave may not arise because in case of death, the heirs and legal representatives of the deceased or in case of injury, the person injured would ordinarily prefer to file a petition for compensation. One would always prefer to receive entire compensation receivable under Section 166 of the said Act and one would not be content with receiving only interim compensation under no fault liability. In the present case also, the opponent injured person did file a petition for compensation under Section 166 of the said Act but since same was barred by limitation under Section 166(3) (as it stood prior to its amendment in 1994), unfortunately, the petition came to be dismissed by the Tribunal on the ground that it was barred by limitation. However, the Tribunal was conscious of the fact that application for interim maintenance under Section 140 is altogether an independent application which confers a right on the claimant to receive interim compensation Irrespective of establishment of negligence or otherwise or irrespective of establishment of any liability. Concept of an absolute liability is introduced by this Section as no fault is required to be proved and once the factum of vehicular accident is established coupled with the involvement of the vehicle and the ownership of the vehicle, the Tribunal can always pass an order under Section 140 for interim compensation. The intent of the legislature in enacting such provision was to see that the injured person or the heirs and legal representatives of the deceased person arc not rendered to helpless or destitute situation of even not receiving any medical aid or treatment in absence of the finances. The Legislature, in fact, intended that for immediate medical and as well as for enabling the heirs and legal representatives of the deceased to meet with certain expenses including expenses for filing of petition, some amount by way of interim compensation should be awarded by the owner of the vehicle irrespective of establishment of liability. Keeping the aforesaid broad intention of the Legislature in mind coupled with the absence of any provision prescribing limitation for interim maintenance in Section 140. the second part of submission of M. Phave is required to be examined. In my opinion, to control or limit operation of Section 140 to those cases where a substantive petition under Section 166 of the said Act of 1988. is filed and is pending, would tantamount to giving a very limited scope to a beneficial piece of legislation which is enacted for the benefit of the class of claimants, either heirs and legal representatives of the deceased or injured persons in vehicular accident. The Legislature has advisedly therefore nowhere stated in Section 140 that application for interim compensation can be made only if a substantive petition under Section 166 is filed.
14. In the case of Oriental Insurance Co. Ltd. v. Mohiuddln Kureshi (1994 (1) Transport and Accident Cases 334 (Patna), a Division Bench of this Court while considering the point as to the limitation for filing an application under Section 140 of the Act, in para 11 of the said Judgment held as under :--
"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."
15. Learned counsel for the appellant relied upon an order passed by a Bench of this Court in the case of Divisional Manager, Oriental Insurance Co. v. Guljari Kuer (1999) 1 PLJR 872, in support of their submission that application under Section 140 of the Act cannot be entertained unless claim application under Section 166 of the Act claiming full compensation has been filed,
16. Before proceeding further, I would like to quote the order passed in the above referred decision, which is as under :--
"Heard the parties, perused records and with their consent this appeal is disposed of under Order 41, Rule 11 of the Code of Civil Procedure.
2. It appears that widow and the sons of late Sheo Badan Chaudhary alias Ballar of village Bahmara, District Kaimur (Bhabhua) filed an application purporting to be under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') before the District Judge, Bhabhua. On the said application M.V. Claim Case No. 94/97 was registered. At this stage it is made clear that the aforesaid persons did not file a claim case under Section 166 of the Act, rather filed only an application under Section 140 of the Act. It was specifically stated in column No. 23 at page 7 of the application that the claimants reserved right to file an application under Section 166 of the Act. In the rejoinder dated 2-5-1998 filed on behalf of the Insurance Company it was stated that the said application under Section 140 of the Act was not maintainable. Unless a claim application under Section 166 of the Act was filed, claiming compensation under the Act, merely an application purporting to be under Section 140 was not to be entertained. A prayer under Section 140 is an interlocutory matter, in a proceeding under Section 166 of the Act. According to scheme of the Act, pending final hearing and disposal of claim application under Section 166, the claimant has been given liberty to obtain interim relief, i.e. grant of interim compensation on an interlocutory application under Section 140 of the Act.
3. In the aforesaid circumstances, I find that the proceeding, vide M.V. Claim Case No. 94 of 1997 instituted on an application purporting to be under Section 140, in absence of a regular proceeding under Section 166 of the Act was not maintainable. Accordingly the impugned order and interim award are illegal and without jurisdiction. It is, accordingly, set aside. In the result, this appeal is allowed."
17. With due respect I must mention here that the order in the above case was passed by the learned single Judge at the admissions stage and the question of law has not been decided. Moreover, it is evident from the order that the object, statement and the scheme of the Act and the different procedure provided under the Rules and the decisions referred to hereinabove Including the decision of the Division Bench were not brought to the notice of this Court in the aforementioned case.
18. In the case of Union of India v. Dhanwanti Devi, (1996) 6 SCC 44 : (1996 AIR SCW 4020) the Apex Court has settled the law with regard to the circumstances where a decision will constitute a binding precedence. Their Lordships observed (at pages 4024-4025 of AIR SCW) :--
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be explosion of the whole law. but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.
Their Lordships further observed :---
'Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents."
19. Having regard to the entire facts and circumstances of the case and the law discussed hereinabove, I am, therefore, of the definite opinion that Chapter X of the Act is an independent provision and the Tribunal is bound to decide the claim application filed under Section 140 of the Act for grant of interim compensation notwithstanding the claimant having filed any other application under Section 168 or under any other provisions of the Act. 1 am further of the opinion that the provision of Chapter X has overriding effect over any other provision of the Act and the Legislatures have made it clear under Section 144 of the said Act.
20. For the reasons aforesaid, there is no merit in this appeal which is accordingly dismissed.