Gujarat High Court
Ahmedabad Municipal Transport Service vs Girishchandra Chimanlal Patel & on 25 February, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/3296/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.3296 of 2013
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AHMEDABAD MUNICIPAL TRANSPORT SERVICE....Appellant(s)
Versus
GIRISHCHANDRA CHIMANLAL PATEL & 1....Defendant(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No.1
MR NAGESH C SOOD, ADVOCATE for the Defendant(s) No.2
NOTICE SERVED for the Defendant(s) No.1
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 25/02/2014
ORAL ORDER
1. This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") at the instance of the Ahmedabad Municipal Transport Service is directed against the judgment and award dated 31 st August, 2013 passed by the Motor Accident Claims Tribunal (Auxiliary) at Ahmedabad city (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.301/2000 whereby the Tribunal has awarded compensation of Rs.15,769/- with interest at the rate of 7.5% per annum from the date of the claim petition till payment together with proportionate costs in favour of the appellant by holding the opponents jointly and severally liable to pay such amount. The appellant herein had claimed compensation of Rs.1,07,161/-, and hence, to the extent the Tribunal has disallowed the claim, the appellant is aggrieved by the said award.
Page 1 of 8 C/FA/3296/2013 ORDER2. The facts stated briefly are that the appellant filed a claim petition under section 166 of the Act claiming compensation from the opponents being the driver, owner and insurer of the offending vehicle for damage caused to AMTS Bus No.GJ-1-T-7593, Route No.126, Body No.336 owned by the appellant in a motor vehicle accident that occurred on 19 th June,1999 at about 8:30 a.m. near Arvind Mill Bus Stand with a truck bearing R.T.O. Registration No.GJ-1-TT-7488. The appellant claimed that on account of the accident, not only had the AMTS bus been damaged but also there was loss of business and accordingly claimed compensation of Rs.1,07,161/-. The Tribunal after appreciating the evidence on record held that the accident had occurred on account of the sole negligence on the part of the driver of the truck bearing No.GJ-1-TT-7488. On the question of quantum of compensation, on behalf of the appellant, a document had been produced at Exhibit-33 showing that the appellant had incurred expenses of Rs.15,769/- towards spare parts and labour charges for repairing of the bus. The appellant had also claimed Rs.91,392/- towards loss of business on account of non-plying of the bus for 32 days during which period, the bus was confined to the workshop. On behalf of the respondent No.2 - insurance company, it was contended that the Tribunal had no jurisdiction to award compensation for loss in business caused to the appellant for being deprived of the use of the AMTS bus. The Tribunal, after considering the submissions advanced by the respective parties, held that in the light of the provisions of section 165 of the Act, a Tribunal is empowered to award compensation for death, bodily injury and damage to property only and not otherwise. Following the decision of the Madhya Pradesh High Court in the case of New India Assurance Page 2 of 8 C/FA/3296/2013 ORDER Company Ltd. vs. Subhash Jain and others, 1993 ACJ 412, the Tribunal held that it had no jurisdiction to award compensation for loss of business as such an award is not contemplated in law and accordingly, held that the appellant is entitled to compensation of Rs.15,769/- towards damage caused to the AMTS bus only and rejected the claim for loss of business. Being aggrieved, the appellant has preferred the present appeal.
3. Mr. H.S. Munshaw, learned advocate for the appellant assailed the impugned award by submitting that the statute does not restrict the claim for compensation to the actual damage caused to the vehicle only and that the same would also include loss of income on account of the damaged caused to the property. It was submitted that once the Tribunal had recorded a finding of fact to the effect that it was the truck driver who was responsible for the accident, there was no reason to deprive the appellant of compensation in respect of loss of business. It was submitted that the appellant is a public sector undertaking providing public transport system to the public at large and due to the accident, the bus could not be plied for 32 days resulting into hardship to the public at large, the administration as well as loss of business. Accordingly, the appellant is required to be compensated for such loss by the respondents, however, the Tribunal has on a misinterpretation of the provisions of the statute, rejected the claim towards loss of business. It was accordingly urged that the appeal requires to be allowed by awarding compensation towards loss of income for the days during which the bus could not be plied.
4. On the other hand, Mr. Nagesh Sood, learned Page 3 of 8 C/FA/3296/2013 ORDER advocate appearing on behalf of the respondent No.2 - insurance company invited the attention of the court to the provisions of section 165 of the Act to point out that the jurisdiction of the Tribunal was limited to 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 a third party so arising, or both. It was submitted that thus, insofar as the compensation in relation to property is concerned, the jurisdiction of the Tribunal was limited to any damage caused to such property and that the same cannot be widened by including loss of income. Reliance was placed upon the decision of the Himachal Pradesh High Court in the case of National Insurance Company Ltd. v. Himachal Road Transport Corporation and others, 2010 ACJ 2664 wherein in a similar set of facts, the court had held that the Tribunal had no jurisdiction to entertain and adjudicate upon the claims relating to consequential loss arising out of damage to the property. Its jurisdiction is confined only to the damage actually caused to the property. It was accordingly urged that the appeal being devoid of merits, deserves to be dismissed.
5. In the backdrop of the facts and contentions noted hereinabove, the sole question that arises for consideration before this court is as to whether the Tribunal has the jurisdiction to adjudicate upon claims relating to consequential loss arising out of damage to property.
6. Before adverting to the merits of the case, reference may be made to the provisions of section 165 of the Act which makes provision for Claims Tribunals. Sub-section (1) thereof Page 4 of 8 C/FA/3296/2013 ORDER provides that a State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals for such area 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 a third party so arising, or both. On a plain reading of the above provision, it is apparent that the jurisdiction of the Tribunal insofar as property is concerned is limited to damages to any property of a third party arising out of use of a motor vehicle. On a plain reading of the expression "damages to any property" it is clear the same connotes damage caused to such property and not damages arising out of the damage caused to such property. Insofar as damages to the property namely, damages to the AMTS bus is concerned, the Tribunal has considered the expenditure incurred by the appellant and has awarded compensation to that extent. However, the appellant has also claimed damages towards loss of income on account of the damage caused to the bus. Thus, in effect and substance, the appellant, in addition to the damage caused to the property, also claims damages for the loss caused to it as a consequence of the accident. In the opinion of this court, section 165 of the Act does not vest in the Tribunal, the jurisdiction to adjudicate upon claims relating to consequential loss arising out of damage to the property.
7. The Madhya Pradesh High Court in the case of Raj Kumar v. Mahendra Singh, 1985 ACJ 103, in the context of section 110 of the Motor Vehicles Act, 1939 held that the Claims Tribunal constituted under section 110 of the Motor Page 5 of 8 C/FA/3296/2013 ORDER Vehicles Act is empowered only to adjudicate upon claims for compensation in respect of accidents involving 'damages to any property' arising out of the use of the motor vehicle. Therefore, at best, the claim which can be lodged and adjudicated upon by the Claims Tribunal contemplated by the section is claim for compensation for damages resulted to the vehicle due to the accident. Usually, a claim of such nature is made to recover expenses which may be or might have been incurred for repairs or restoration of the vehicle to its original condition. The "loss of business" on account of a vehicle remaining idle during repairs is not 'damage to the property' of the owner, but may be damage or loss to the owner. The court was of the view that the Claims Tribunal is not empowered under section 110 of the Motor Vehicles Act to entertain such a claim. It was, accordingly, held that a claim for compensation for loss of business on account of damaged vehicle remaining idle during its repair cannot be laid before the Claims Tribunal and that the party aggrieved on this count is free to file a civil suit and section 110F of the Act does not bar the jurisdiction of the civil court. In Nesamony Transport Corporation Ltd. v. Kochammal, 1995 ACC 601, the Madras High Court held that giving the words "damages to any property of a third party"
their normal and ordinary meaning, the scope of such claim, for purposes of adjudication by the Claims Tribunal, would appear to be confined to the amount required to be awarded by way of pecuniary compensation to set right the actual damage caused by an accident to any property of a third party and no more. The expression 'damage' would connote pecuniary compensation obtainable in an action for a wrong, which is a tort in the case of motor vehicle accidents and when the language of the section is confined only to damages to any Page 6 of 8 C/FA/3296/2013 ORDER party, it cannot, as it is, be extended or expanded into damages and not necessarily restricted to property. No doubt, such an interpretation may leave a claim for damages other than that to property arising out of a motor accident, for adjudication by a civil court, but that cannot be helped in view of the language employed in section 110(1) of the Act. If it was the intention of the legislature that the damages under all its different heads could be recovered in an action under section 110(1) of the Act before a Motor Accident Claims Tribunal, suitable language could have been employed to that effect. But having regard to the phraseology employed, it is difficult to extend its scope by bringing under its coverage claims for damages other than actual damage to the vehicle involved in the accident.
8. The Himachal Pradesh High Court in the case of National Insurance Co. Ltd. v. Himachal Road Transport Corporation (supra) was of the view that the intention of the legislature was only to grant jurisdiction to the Motor Accidents Claims Tribunal to award damages for the loss to property. The consequential business loss could not have been assessed or awarded by the Tribunal. The loss caused due to vehicle remaining idle is not damage to the property but a loss to the owner. The court was of the opinion that the Claims Tribunals constituted under section 165 of the Act have no jurisdiction to entertain such claims.
9. This court is in agreement with the view adopted by the Madhya Pradesh High Court, the Madras High Court and the Himachal Pradesh High Court in the above referred decisions and is accordingly of the view that the Claims Page 7 of 8 C/FA/3296/2013 ORDER Tribunal does not have the jurisdiction to entertain and adjudicate upon the claims relating to consequent loss arising out of the damage to the property. The jurisdiction of the Claims Tribunal is confined only to the damage actually caused to the property.
10. In the light of the above discussion, this court is of the view that the Tribunal was wholly justified in holding that it has no jurisdiction to award compensation for loss of business and consequently disallowing the claim of the appellant to that extent. The appeal, therefore, fails and is accordingly dismissed.
11. Registry shall forthwith send back the record and proceedings of the case.
( Harsha Devani, J. ) hki Page 8 of 8