Madhya Pradesh High Court
Smt. Somvati vs Santlal Kushwah on 17 November, 2017
M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and
others ) 1
17.11.2017
Shri A.K. Mangal, learned counsel for the
appellant.
Shri B.N. Malhotra, learned counsel for the
respondent no.3.
With consent of learned counsel for the parties, the matter is finally heard.
Grievance raised by the appellants Smt. Somvati and others, who are claimants in Claim Case pending before the Second Motor Accident Claims Tribunal Gwalior, is against the order dated 9.8.2017 whereby the Claims Tribunal has dismissed the application under section 140 of the Motor Vehicles Act, 1988. The reasons find mention in the order in the following terms:
"9- izdj.k voyksdu ls izdV gksrk gS fd mDr ekeys esa vkosnd i{k dh vksj ls nq?kZVukdkjh okgu VSadj dzekad ;w0ih0&79@ch&7031 ds jftLVªs'ku] chek ikWfylh ds nLrkost rks izLrqr fd, x, gSa ijarq fjdkMZ ij fQVusl rFkk ijfeV ds nLrkost vc rd izLrqr ugha fd, x, gSaA blds vykok vkosnd i{k dh vksj ls e`rd vt; flag dq'kokg dh mez 18 o"kZ gksuk crkrs gq, vkosfndk dz0&01 dks e`rd dh ekrk ,oa vkosnd dz0&02 dks mldk firk] vkosnd dz0&03 dq- vatyh ukckfyx M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 2 mez 16 o"kZ dks e`rd dh cgu rFkk vkosnd dz0&04 xkSjkckbZ 80 o"kZ dks nknh gksdj] e`rd ij vkfJr gksuk crkrs gq, e`rd dh :i;s&10000@& ekfld vkenuh lCth fodz; ds O;olk; }kjk gksuk crkrs gq,] {kfrnkok izLrqr fd;k x;k gS ysfdu iksLV ekWVZe fjiksVZ ds varxZr e`rd dh vk;q 13 o"kZ ds yxHkx iksLV ekWVZe fnukad 25@02@2017 vFkkZr ?kVuk fnukad dks ys[k gksdj] mDr vk/kkj ij e`rd izFke n`"V;k ukckfyx gksus dh fLFkfr esa idV gSA ,slh fLFkfr;ksa esa Dyse izdj.k dk fjdkMZ ij lkfcr gksuk ;k ugha gksuk mDr rF;ksa ds vk/kkj ij lk{; dk fo"k; gksuk izdV gksrk gSA 10- mDr vk/kkj ij ekeys dh ifjfLFkfr;ksa esa vkosndx.k ij varfje izfrdj dk vkosnu izFke n`"V;k Lohdkj ;ksX; ugha ikrs gq, mYysf[kr dkj.kksa ls vLohdkj dj [kkfjt fd;k tkrk gSA"
It is contended on behalf of the appellants that the Claims Tribunal has failed to exercise the jurisdiction vested in it under section 140 of the Act of 1988 by entering into the merits as regard to the age of the deceased, whereas the provisions of section 140 of the Act of 1988 mandates that the liability to pay compensation on the principle of no fault.
Learned counsel appearing for the respondent no.3-National Insurance Company Limited supports the order on the ground that at the stage of no fault liability it is the owner of the vehicle who is primary M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 3 liable and not the insurance company. The said contentions raised on behalf of the Insurance Company is taken note of and rejected at the outset in view of the provisions contained under Section 140 read with section 145 (c) of the Act of 1988. Sub-section (1) of section 140 stipulates that:
"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."
The expression "liability" find its meaning in clause (c) of section 145 which stipulates that "liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under section 140. Be it noted that section 145 is under Chapter XI which provides that Insurance of Motor Vehicles Against Third Party Risks. Thus, the expression "liability" which appear in sub-section (1) of M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 4 section 140 under Chapter X would also include the liability of the Insurance Company to bear the compensation towards the death or bodily injury to any person.
Coordinate Bench of this Court in Smt. Geeta Devi Mishra and others Vs. Anil Kumar Tiwari and others, 2004 (1) M.P.H.T. 82, while dwelling upon issue as present one, has held:
"4. ....................... It is not one of those cases where on the face of insurance policy no liability could be fastened on the insurance company. The claimants need immediate relief. The policy prima facie covers risk as per Section 147 of the Act. At the stage of decision of the application under Section 140 of the Act the plea of breach of the conditions of insurance policy could not be entertained by the Tribunal. This legal position has been settled by the Division Bench of this Court in National Insurance Company v. Thaglu Singh, 1994 MPLJ 663. It has been held that the statutory scheme envisages that if there is a motor accident and death or permanent disablement results from such an accident, owner of the vehicle or vehicles involved shall be liable to pay the prescribed compensation without proof of negligence and irrespective of any contributory negligence of the deceased or injured and the amount so paid has to be adjusted out of M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 5 the compensation found due under the final award. There is no provision requiring the recipient of compensation of no fault liability to refund any part of the amount received at any stage. The legislative intent is to ensure that some succour reaches the victim or the dependents without going into the question which may arise for consideration while passing the final award. If the vehicle is insured, naturally the liability would fall on the insurer; permitting the insurer at that stage to raise any defence other than that there is no insurance policy in force at the relevant time or to raise statutory defences contemplated in the succeeding Chapter would be to frustrate the legislative object in introducing the concept of no fault liability. The insurer is duly protected inasmuch as if ultimately in the final award the insurer is exonerated, the Tribunal can issue appropriate direction enabling the insurer to collect the same from the owner of the vehicle. This could be the only legitimate conclusion to be drawn from the peremptory language of Section 92-A of the 1939 Act or Section 140 of the 1988 Act.
5. The same view has been taken by the Full Bench of this Court in Oriental Insurance Co. Ltd. v. Annamma, 1995 MPLJ 699. These decisions have been subsequently followed in a number of cases. One of them is the recent case of Dinesh Kumar v. Babulal, 2003(2) M.P.H.T. 205 = 2003(2) MPLJ 153, in which it has been held that the question of conditions of the policy is "foreign to the scope of enquiry in a claim under Section 140 of the Act". It has been further held that no fault liability is a statutory liability and M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 6 defence under Section 149(2) of the Act is not available to the Insurance Company at the stage of interim compensation provided that the vehicle is insured with the Insurance Company."
As similar view has been taken by Bombay High Court in National Insurance Co. Ltd. Vs. Vrushali Sitaram Gavnang and others, 2011 ACJ 2559, wherein it has been observed:
"19.In the present case, the main claim petitions filed by the claimants are pending and we are at the stage of interim award under section 140 of the Act. In my opinion, the judgment of the Supreme Court in the case of National Insurance Company Ltd. V/s Jethuram & Ors., 1998 ACJ 921 (SC) is not applicable. In view of the judgments of the learned Single Judges of this Court in the case of Oriental Fire & General Insurance Company Ltd. V/s Alixo Fernandes, 1986 ACJ 1137 (Bombay) as also in the case of Bajaj Allianz Company Ltd.V/s.Vaishali Shetty & Others, 2008 ACJ 2642 (Bombay), I am of the opinion that under section 140 of the Act, the Insurer has to indemnify a person who is covered under a policy and he is required to satisfy a judgment made against such person in terms of Section 147 (5) of the Act. Having due regard to Section 145 (c) of the Act, wherever the term "liability" is used in relation to the death of or bodily injury to any person, it includes liability in respect thereof under Section 140 of the Act. I respectfully do not agree M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 7 with the Division Bench judgment of the Calcutta High Court in the case of Bani Rani Das, 2008 ACJ 538 and the judgment of the learned Single Judge in the case of United Insurance Company Ltd., 2008 ACJ 127 (Calcutta).
25. As indicated earlier, section 165 of the Act provides for constitution of Claims Tribunal. Explanation to section 165 (1) thereof provides that the claim for compensation in respect of accident involving death of or bodily injury to the persons arising out of the use of motor vehicles, includes the claim for compensation under section 140 and 163-A of the Act. In exercise of powers, the State Government made rules. Rule 281 (2) & (3) clearly empowers the Claims Tribunal to make award of compensation to be paid by the Insurer or the owner. The rules have been framed by the State Government for the purpose of carrying into effect the provisions of Section 165 to 174 of the Act. Merely because the word Insurer is not mentioned under section 140 of the Act, it cannot be said that the liability is cast only on the owner or owners as the case may be. The learned Single Judge of this Court has considered the provisions of the old Act in the case of Oriental Fire and General Insurance Company Limited V/s Alixo Fernandes, 1986 ACJ 1137 (Bombay) and held that mere omission of the word Insurer under section 92-A of the old Act, cannot exclude the Insurer from liability so long as the vehicle involved in the accident is duly covered by certificate of Insurance granted M.A.No.946/2017 (Smt. Somvati and others Vs. Santlal Kushwah and others ) 8 by the Insurer. This is also to be appreciated on the backdrop that the Act is in the nature of a social welfare legislation. In view thereof, the reliance placed by the learned counsel on the judgment of Raghunath Rai, (supra) does not advance the case of the appellants any further."
This Court is in respectful agreement with the view taken in Smt. Geeta Devi Mishra (supra) and Vrushali Sitaram Gavnang (supra). The impugned order when tested on the anvil of the aforesaid analysis cannot be given the stamp of approval. Consequently, the same is set aside.
An application preferred by the appellants/ claimants under section 140 of the Act of 1988 is allowed. The respondents no.1 to 3 are held jointly and severally liable to pay the amount towards no fault liability of Rs.50,000/- to the claimants.
In the result, the appeal is allowed to the extent above. No costs.
(Sanjay Yadav) Judge pawar/-
ASHISH Digitally signed by ASHISH PAWAR DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=P. S., postalCode=474011, st=Madhya Pradesh, 2.5.4.20=022bf22fa73f89c6f6d933de1146a2 PAWAR 90a49b3c94df18221974589b5a02e0fc6b, serialNumber=45b88e29cf4fecaaa753c8ca8 740ad0da9c3e498ade24a066f820e2484600 8ae, cn=ASHISH PAWAR Date: 2017.11.22 10:36:32 +05'30'