Patna High Court - Orders
Pawni Devi & Anr. vs Om Prakash & Ors. on 27 February, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.536 of 2010
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1. Pawni Devi, Wife of Late Vinod Mandal.
2. Dano Devi, Wife of Banarsi Mandal.
Both resident of village - Lakhisarai English, P.S. & District -
Lakhisarai.
.... .... Claimants .....Appellants
Versus
1. Om Prakash Son of Narendra Kumar Sinha
At Rasulpur Zilani, Majhaulia Road, Muzaffarpur, (Owner of Truck No.
BR-06G-2021).
2. The Branch Manager, United India Insurance Co. Ltd., Branch Office -
Motijheel, Muzaffarpur (Insurer of Truck No. BR-06G-2021).
3. Kaushal Krishna Singh Son of Late Tanik Singh, Resident of Village -
& P.O. - Hathidah, District - Patna (Owner of the Truck No. BPP -
7459).
4. The Branch Manager, The New India Assurance Company Ltd.,
Begusarai, Police station and District - Begusarai, (Insurer of Truck No.
BPP- 7459).
.... .... Opp. Parties - Respondents
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
7 27 -02-2012The present appeal under Section 173 (i) of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V. Act') has been preferred against an order dated 03.08.2009 passed by the learned Additional District Judge - cum - Motor Vehicles Accident Claims Tribunal, Lakhisarai (hereinafter referred to as the 'Claims Tribunal') in Claim Case No. 39 of 2004, whereby, the learned Claims Tribunal has rejected the petition filed on behalf of the claimants / appellants under Section 140 of the Motor Vehicles Act, 1988 for no fault compensation.
Heard the parties.
Respondent no. 1, 2 & 3 have appeared through their Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 2 counsel(s). Despite valid service of notice, the respondent no. 4 has chosen not to appear.
Short fact of the case is that husband of appellant no. 1, namely, Vinod Mandal, who was son of appellant no. 2 was driver of a truck bearing registration no. BPP-7459. On 09.05.2003, the husband of the appellant no. 1 while driving the offending truck died in an accident which occurred due to collision in between two trucks having registration no. BR-06G- 2021 and BPP-7459. The accident had taken place at Bachhwara in the district of Begusarai at 5.30 A.M. on 09.05.2003. Truck no. BR-06G-2021 was insured with United India Insurance Co. Ltd. and truck no. BPP-7459 was insured with New India Assurance Co. Ltd. The owner of the said truck /vehicle i.e. truck no. BPP- 7459 was respondent no. 3 / Kaushal Krishna Singh.
After the said accident an F.I.R. vide Teghra P.S. Case No. 41 of 2003 was registered, and thereafter, the claimants / appellants filed a petition under Section 140 of the M.V. Act arraying therein owner of the truck bearing registration no. BR- 06G-2021 namely Om Prakash, Branch Manager, United India Insurance Co. Ltd. / insurer of truck no. BR-06G-2021, owner of truck no. BPP-7459 namely Kaushal Krishna Singh, who is respondent no. 3 and Branch Manager, New India Assurance Co. Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 3 Ltd. / respondent no. 4 as opposite parties along with relevant documents. After filing of the claim petition under Section 140 of the M.V. Act, the insurer opposed the prayer of the claimants, firstly on the ground, that the claimants had not produced driving licence of the driver, and secondly on the ground, that without filing any claim petition under Section 166 of the M.V. Act the petition filed under Section 140 of the M.V. Act was not maintainable. On behalf of the insurer the plea of maintainability was taken on the strength of a single bench order of this court reported in 1999(1) PLJR 872 (Divisional Manager, Oriental Insurance Co. Ltd. & Ors. Vs Gulzari Kuer & Ors.). After hearing the parties the learned Claims Tribunal mainly on the basis of the order of this court in Gulzari Kuer Case (Supra) has rejected the claim petition. Since in the present case only a limited question was involved i.e. as to whether without filing a claim petition under Section 166 of the M.V. Act a petition on the principle of compensation on no fault under Section 140 of the M.V. Act was maintainable or not is involved, this court has not delved into the details of the case and as such there is no necessity to deal with the cases of each parties.
It is true that in Gulzari Kuer Case a single bench of this court has held that in absence of a regular proceeding under Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 4 Section 166 of the M.V. Act a petition filed under Section 140 of the M.V. Act is not maintainable, but fact remains, that subsequent to the order of this court, this issue has already been decided by the Apex Court in a case reported in 2010(4) ACJ 2444 ( Eshwarappa and another V. C.S. Gurushanthappa and another) and it has been held that a petition under Section 140 of the M.V. Act is maintainable independent of filing of a petition under Section 166 of the M.V. Act. The scheme provided under Chapter X of the M.V. Act from the heading itself indicates regarding liability without fault in certain cases and Section 140 of the M.V. Act suggests for compensation adopting the principle of no fault. Meaning thereby, that in case of a vehicular accident in which either death or injury is caused, a compensation can be claimed without raising any ground of fault on the part of the driver of the offending vehicle and for claiming such compensation there is no requirement to plead and establish that death or permanent disablement in respect of such accident was due to wrongful neglect or default of the owner or owners of the vehicle or vehicles concerned. The Apex Court while dealing with such situation has minutely examined relevant provisions in Eshwarappa Case (Supra). To answer the aforesaid question, it would be appropriate to quote certain relevant paragraphs of Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 5 Eshwarappa Case, which are as follows:
12. Coming back to the order passed by the Tribunal, we are completely unable to appreciate the reasons assigned for denying the appellants the „no fault compensation‟ as provided under section 140 of the Act. The Tribunal was gravely in error in taking the view that a claim for compensation under section 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings and further that the claim must fail if the accident had taken place by using the car without the consent or knowledge of its owner. Section 140 is the first section of Chapter X of the Act. It is a small Chapter consisting of only five sections (from 140 to 144) and has the marginal heading „Liability without Fault in Certain Cases‟. Section 140 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 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 Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 6 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 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 under section 163-A."
On a plain reading of the provisions it is evident that all that is required to attract the liability under section 140 is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disablement of any person. Sub-section (2) provides for a fixed amount as compensation. In case of death, currently it is Rs. 50,000 (rupees fifty thousand); at the time the accident from which the appeal arises took place the fixed amount in case of death was Rs. 25,000 (rupees twenty-five thousand). Sub-section (3) provides that even though the death or permanent disablement resulting from the motor accident might not be due to any wrongful act, neglect or default of the owner of the vehicle, it would have no effect either on his liability or on the amount of compensation. Sub-section (4) conversely provides that the motor accident resulting in the death or permanent disablement might be entirely due to the wrongful act, neglect or Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 7 default of the person in respect of whose death or permanent disablement the claim is made but that too would have no effect either on the right to receive the compensation or the amount of compensation. Sub-section (5) which begins with a non obstante clause makes it further clear that the liability under section 140 is independent of the liability of the owner of the vehicle to pay compensation under any other law for the time being in force. The proviso to sub-section (5), of course, provides that the amount of compensation under any other law would be reduced from the amount of compensation payable under section 140 or under section 163-A of the Act.
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 163-A (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), wherein 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 Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 8 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 impendent 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 163-A 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 inasmuch as these create the liability Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 9 of the vehicle(s) owner(s) 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.
In view of the facts and circumstances, particularly in view of clarifications made by the Apex Court, there is no option but to follow and hold that even without filing a petition under Section 166 of the M.V. Act in view of the facts and circumstances a petition under Section 140 of the M.V. Act can be Patna High Court M.A. No. 536 of 2010 (7) dt. 27-02-2012 10 maintained, and as such, the order impugned i.e. the order dated 03.08.2009 passed by Additional District Judge - cum - Motor Vehicles Accidents Claims Tribunal, Lakhisarai, in Claim Case No. 39 of 2004 is hereby set aside and the matter is remitted back to the court below to decide the claim case filed under Section 140 of the M.V. Act by the claimants / appellants on its own merit particularly within the scope of Section 140 of the M.V. Act. While remitting back the matter, the court is of the opinion that since accident had occurred long back in the year 2003, the learned court below can be directed to decide the matter without any delay and it has to be decided within a period of three months from the date of receipt / production of a copy of this order.
With above observation and direction the appeal stands allowed.
(Rakesh Kumar, J) Praful/-