Jammu & Kashmir High Court - Srinagar Bench
Bajaj Allianz General Insurance ... vs Nasib Chand And Others Cima No. 100/2008 on 22 February, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
CIMA No. 79 of 2011
c/w CIMA No. 77 of 2011
CIMA No. 78 of 2011
Bajaj Allianz General Insurance Company
Bajaj Allianz General Insurance Company
Bajaj Allianz General Insurance Company
Petitioners
Mohamad Ahsan Mir
Mst. Zareefa Begum & Ors.
Mst. Zareefa Begum & Ors.
Respondents
!Mr. Imtiyaz Ahmad, Advocate
^Mr. Irfan Hussain for 1-6, Advocate
Mr. Ajaz Bedar for 7, Advocate
*
Honble Mr. Justice Hasnain Massodi, Judge
Date:22/02/2012
: J U D G M E N T :
1. On 27th May, 2010 a Tata Sumo vehicle bearing registration No. JK01L-5283 rolled down into a deep gorge at Ramban, on Jammu Srinagar National Highway, resulting in death to driver and its two other passengers.
2. The dependants of the deceased laid three claims before the Motor Accidental Claims Tribunal, Srinagar. The claimants also filed three applications under Section 140 Motor Vehicles Act(the Act for short) for award of compensation on the principle of no fault liability. The applications were opposed by the Appellant Insurance Company inter alia on the ground that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of fatal accident. The Tribunal vide order dated 16th March 2011, allowed the applications under Section 140 of the Act, and directed the Appellant to pay an amount of Rs. 50,000/- to the claimants on the principle of no fault liability. The Tribunal was guided by the following conditions laid down by this Court in National Insurance Company Ltd. Vs. Nasib Chand and others CIMA No. 100/2008, for guidance of the Tribunal, while dealing with an application under Section 140 of the Act;-
(i) the accident resulted in death or permanent disablement.
(ii) the claim is made against the owner and insurer of the motor vehicle involved in the accident.
1. The Tribunal observing that; Section 140 of the Act envisages grant of speedy relief to the victim of road traffic accident or to the dependants of the deceased victim, so that the victim or the dependants as the case may be, have something to fall back upon at the time of sudden calamity; held that the claimants had established all the ingredients necessary for grant of compensation under Section 140 and accordingly passed interim award in their favour.
4. The order dated 16th March, 2011 is assailed in the Civil Ist. Misc. Appeals on hand, on the grounds that the Tribunal while awarding compensation under Section 140 of the Act, avoided to deal with the defence set up by the appellants in opposition to the applications. It is pleaded that the Tribunal even while dealing with an application under Section 140 of the Act, is expected not to brush aside the defence taken up by the appellant and allow the application in the name of no fault liability without examining the case pleaded by the insured or insurer in opposition to the application.
5. Heard and Considered.
6. The case set up by the appellants as already pointed out is that the appellant was within its rights to plead a defence available to it under Section 149(2) Motor Vehicles Act and that the defence set up was required to be adjudicated upon and not to be ignored on the ground that once involvement of the vehicle in the accident and it having insurance cover was established the claimants were invariably to be held entitled to the compensation under Section 140 of the Act, irrespective of the defence taken. Learned counsel for the appellant to re-inforce his stand places reliance on LPA (c) 01/2008 tilted Oriental Insurance Company Vs. Som Raj & Ors decided on 04.04.2009 reported at 2009(2)JKJ 26 (HC). And Smt. Yallawwa & Ors Vs. National Insurance Company Ltd. & Anr. reported at 2007)8) Scale 77. Learned counsel for the appellant in particular relies upon the following observation of the Division Bench in Som Rajs case (supra) Therefore, while disposing of the claim based on no fault basis, as the owner of the vehicle is required to be heard, so is the insurer. It may be possible that the owner may contend that he is not the owner of the vehicle involved in the accident and, if such a plea is taken, unless there is a finding that the vehicle in question was owned by him, no compensation can be awarded against him. Similarly, if the insurer takes a plea, which it is entitled to take as and by way of defence and as has been provided in sub-section (2) of Section 149 of the act, the veracity and effect of such plea is required to be adjudicated, otherwise the right of the insurer to defend a claim on it would be defeated. In the circumstances, when a plea is taken by the insurer as is available to it under sub-section (2) of section 149 of the Act, there must be an adjudication that such a plea is not sustainable and accordingly the insurer is liable to pay the amount due accordingly, the insurer is liable to pay the amount due and payable by the owner to the extent of the insurance policy and all costs, interests etc, payable thereon.
7. Reliance is also placed on the following observations made by Apex Court in Smt Yallwwa and others Vs. National Insurance Co Ltd & another:-
18. Furthermore, it is not in dispute that there can be more than one awards particularly when a sum paid have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.
8. Learned counsel for the respondents on the other hand argue that the Tribunal having regard to the nature and purpose of the relief contemplated under Section 140 of the Act, is not expected to make a roving inquiry but has only to take a prima facie view of the rival stands set up before it. Learned counsel for the respondents in particular refers to following observations made by this Court in Gouri Rani & Ors. Vs. Kh. Habib-Ullah Najar & Ors. 2005 (1) JKJ 645;- It is significant to point out that while granting interim award at an initial stage, the Tribunal does not look into the defences available to the Insurance Company, which are required to be determined on evidence in the main claim petition. What is required to be seen at the initial stage of the interim award is the death of the deceased to have taken place in a vehicular accident. No roving enquiry is to be conducted while granting interim award but only on the basis of prima facie evidence available on record.
9. I have gone through the memo of appeal and the record available on the file. I have heard Ld. Counsel for the parties. Ambit
10. The fate of Civil Ist. Miscellaneous Appeal hinges on ambit and scope of enquiry to be made by the Tribunal while dealing with an application under section 140 Motor Vehicle Act. In case it is held that the extent of inquiry is to be restricted to a prima facie view of the case projected by the rival parties and apparent strength of the claim set up and that the Tribunal while dealing with an application under section 140 Motor Vehicle Act, is not to embark on an in- depth and roving enquiry, the appeals are to be held to be without merit. However, in case the Tribunal while dealing with an application under section 140 Motor Vehicle Act, is held to be under an obligation to undertake an elaborate and exhaustive inquiry, afford the insured or the insurer, as the case may be, opportunity to examine witnesses in support of its defence and thereafter give the claimants an equal opportunity to rebut the evidence adduced by the insurer as also to substantiate their stand, the appeals are to succeed as no such opportunity in the present case has been given by the Tribunal to the parties to the claim petition while dealing with the controversy.
11. It would be appropriate to examine the nature of relief available to a victim of vehicular accident or the dependents of a deceased victim, under section 140 of the Act, and to correlate it with the relief available under section 163-A and section 166 of the Act.
12. Section 140 Motor Vehicle Act finds place in chapter-X of the Act titled LIABILITY WITHOUT FAULT IN CERTAIN CASES. The chapter comprises of only four sections viz section 140 to 144. Section 140 needs to be noticed. It reads:
Section 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 as 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 rupee].
(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 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. ]
13. In terms of Section 140 Motor Vehicle Act, a statutory liability is placed on the insured or the Insurer to pay a fixed compensation of Rs.50,000/- in case of death and Rs.25,000/- in case of permanent disablement, to the dependents of the deceased victim or the victim as the case may be, irrespective of default, wrongful act or neglect of the owner or its driver and that of the deceased or the victim. The liability under Section 140 of the Act, is known as No Fault Liability and since a claim for compensation on the basis of Fault Liability under section 166 of the Act, can be maintained by a victim or dependents of the deceased victim, even if no fault claim is laid under section 140 of the Act, the compensation awarded is in common parlance known as Interim Award. The award made after trial of the claim petition u/s 166 of the Act, is known as final award.
14. It needs to be pointed out that right to claim compensation u/s 140 of the Act, in respect of death or permanent disablement in terms of Section 141 of the Act, is in addition to right to claim compensation under any other provision of the Act, except section 163-A or even any other law for the time being in force. Section 141 (2) Motor Vehicle Act, obligates the Tribunal to dispose of an application under section 140 of the Act as expeditiously as possible and where the claimants have laid a claim for compensation under section 140 Motor Vehicle Act, on the principle of No Fault Liability as also a claim petition u/s 166 Motor Vehicle Act, to dispose of the petitioner u/s 140 Motor Vehicle Act, in the first place. In terms of section 141 (3) where the insured or the Insurer is held liable to pay compensation on the Principle of Fault, the compensation paid u/s 140 Motor Vehicle Act, is to be subtracted / set off from against the compensation awarded on the Principal of Fault where the later compensation is more than the compensation awarded under section 140 of the Act. In case the compensation assessed on the Principle of Fault is equal or less than the compensation awarded u/s 140 of the Act, the insured or the Insurer would not be liable to pay any compensation on the Principle of Fault.
14. In terms of section 144 the chapter-X has overriding effect on other provision of the Act or any law for the time being in force. Section 166 of the Act, makes it obligatory for the claimants to declare in claim petition laid on the Principal of Fault whether claim for compensation u/s 140 has been laid by the claimants.
15. A conjoint reading of chapter X, Xi and XII makes it abundantly clear that the compensation paid u/s 140 of the Act, is interim in nature intended to provide immediate relief and succour to the victim of a vehicular accident who suffers permanent disablement or the dependents of the deceased victim.
16. We are well aware that a vehicular accident is neither designed nor anticipated by its victim. The accident, all of a sudden takes away a bread earner, at times the sole bread earner, from a family, leaving the family members high and dry without any source to fall back upon.
Ordinarily the victim or the dependants of the deceased victim, have to work out their remedy under Civil Law and commence a suit for recovery of compensation from the owner of the offending vehicle or its driver on the ground of tortuous liability. Such a suit because of procedural wrangles involved is to take a considerable time to fructify into a decree for recovery of compensation. The victim or the family of the deceased family cannot be left without sustenance for such a long time. In case the victim or the dependants of he deceased victim are left to work out their remedy in a routine manner, such victim or dependants of the deceased victim may be pushed to penury, without any source to make both ends meet or to organize health care in case of a disabled victim. The Social Planners alive to spill over of such a situation on the Society at large, have taken legislative measures in the shape of Chapter X, XI, XII Motor Vehicles Act, to provide an efficient, hassle free and less costly mechanism for assessment and award of compensation in such cases. Chapter X, XI and XII Motor Vehicles Act, taken together are thus a piece of welfare legislation intended to come to the rescue, to and ensure relief and rehabilitation of the victims of vehicular accident and the dependants of the deceased victims, and are to be interpreted employing tool of purposive interpretation so as to achieve the intended object.
17. Chapter X of the Act goes a step further and provides a way out for awarding compensation on the principle of no fault liability so that immediate relief is given to the victim or the dependants of the deceased victim without placing responsibility for the vehicular accident on either of the parties. The Tribunal is expected not to examine as to who caused the accident or who was at fault but award a fixed amount to the dependants of the deceased or permanently disabled victim, as the case may. The amount awarded on the principal of no fault liability under Chapter X is to be later adjusted against the award that may be finally passed by the Tribunal in the event a claim petition under Section 166 has been laid on the Principal of Fault. In case the claimants are finally found to be not entitled to any compensation at all, the amount of interim award granted on the principle of no fault liability can be recovered by the pwner/insurer from the claimants. The Tribunal as already pointed out is in terms of Section 141 to dispose of, an application under Section 140 expeditiously and in any case before the claim petition under Section 166 is disposed of. It is thus abundantly clear that an award passed under Section 140 is not final but temporary in character in as much as the amount awarded is to be set off against the amount that may be awarded by the Tribunal under Section 166 and may be even recovered where the insured or insurer are found not liable to pay any compensation. When we take a holistic view of above aspects, it become more than clear that the Tribunal while dealing with a claim under Section 140 Motor Vehicles Act, is not to make such inquiry as is required to be made while dealing with a claim petition under Section 166. Having regard to the legislative mandate embodied in Section 141 requiring the Tribunal to decide the application under Section 140 Motor Vehicle Act expeditiously, before a claim petition under Section 166 is disposed of, the only irresistible conclusion is that the inquiry as contemplated under Section 140 is far limited in its scope than a full-dress inquiry contemplated by Section 166 read with 168, which includes settlement of issues, an opportunity to the parties to adduce evidence in support of their respective stands and also in rebuttal. A contrary view would lead to irrational results because the Tribunal would have to make a full-fledged inquiry while dealing with an application under Section 140 and thereafter once interim award i.e. the award on the Principle of No Fault Liability is passed again to embark on a detailed enquiry while dealing with an claim petition under section 166 of the Act on the Principle of Fault. Such a recourse would not only involve repetition of evidence but also contribute to delay in disposal of the application under section 140 as well as the claim petition under section 166 of the Act. Such course would frustrate every object of the chapter X, XI and XII of the Act, which already pointed out, is to provide a quick, efficient and hassle free mechanism to the victim of a vehicular accident or the dependants of the deceased victim to get the compensation from the insurer or the insured. In case the parties are asked to adduce evidence even at the stage when, an application under Section 140 Motor Vehicle Act, is being dealt with, the claimants would not be in a position to get the immediate relief in the nature of an interim award, that law makers as is clear from mandate of Section 141 , intended to reach the target group without delay and before the claim petition on the Principle of Fault is finally disposed of. The fact that Law Makers in their wisdom restricted the remedy available under Section 140 to the permanently disabled victim and did not extend it to a victim who has even suffered multiple simple injuries or has been hospitalised because of such injuries, makes the intention of the Law Makers loud and clear that the remedy under Section 140 is intended to provide immediate relief to such of the victims of the vehicular accident who are worst hit or affected by the accident.
17. There can be no disagreement with the legal proposition that the award made under Section 140 on the Principle of No Fault Liability, like an award made under Chapter XII is for all intents and purposes an award and thus amenable to appeal. It also needs no emphasis, that a victim of a vehicular accident who is permanently disabled and the dependants of the deceased victim can independently maintain an application under Section 140 as also under Section 166 of the Act, and may at their option lay only a petition on the principle of No Fault Liability without filing a petition under Section 166 on the Principle of Fault. Where the victim of a vehicular accident or the dependants of a deceased victim decide to restrict their remedy to a petition on the principle of no fault liability the Tribunal in such a case, would be under obligation to allow the insurer or the insured to substantiate his defence by adducing evidence and thereafter give an opportunity to the claimants to adduce evidence in rebuttal. The reason for such recourse is that in such as case the insurer or the insured would have no opportunity to substantiate it his defence. On the other hand the insurer or the insured in a case where a claim petition under Section 166 is also laid, shall have full opportunity to adduce evidence in support of its/his stand and where the Tribunal on appreciation of the evidence concludes that the defence set up is cogent and convincing, it may not only dismiss the claim petition filed on the Principle of Fault but also require the claimants to repay/return the statutorily fixed compensation received by them under Section 140 on the Principle of no Fault Liability.
18. To sum up the Tribunal in a case where an application under Section 140 as also a claim petition under Section 166 is laid by the victim of a vehicular accident or the dependants of the deceased victim, has to take a prima-facie view of the case set up like involvement of the vehicle in the accident, injury or death to the victim, the vehicle being insured with the insurer at the time of the accident and the apparent strength of the defence, if any set up by the insurer or the insured to wriggle out of his responsibility to pay compensation on the Principle of No Fault Liability. The Tribunal in such a case is not to dive deep in the matter, embark on the full-fledged, in-depth and time consuming inquiry. However, where only a claim for compensation on the Principle of No Fault Liability is filed the Tribunal would be left with no option but to undertake a thorough inquiry affording the insurer or the insured full opportunity to substantiate its/his defence.
19. In the present case the Tribunal has applied its mind to the facts and circumstances of the case, sought guidance from the case law on the subject including law laid down in Shivaji Dhayam Patil Vs. Vatschala Uttam More AIR 1991 SC 1769 and thereafter made an interim award on the principle of no fault liability under Section 140 of the Act.
20. So viewed, there is no merit in grounds urged in the appeals whereby challenge is thrown to the award dated 16.03.201 under Section 140. The appeals are accordingly dismissed.
Srinagar (Hasnain Massodi) 22.02.2012 Judge