Madras High Court
Kunjuraman Nair vs Managing Director, Nesamony Transport ... on 21 October, 1994
Equivalent citations: I(1995)ACC364, 1995ACJ413
JUDGMENT C.V. Govardhan, J.
1. This appeal arises out of the judgment passed by the Motor Accidents Claims Tribunal, Kuzhithurai, dated 27.7.1990 dismissing the petition filed under Section 110-A of the Motor Vehicles Act.
2. The case of the petitioner is as follows: On 9.9.1987 at about 4.45 p.m., the petitioner and two others were waiting in the bus stop at Methappangodu to go to Thoduvetti and at that time bus of route No. 106-B bearing registration No. TMN 2915 belonging to the first respondent came and stopped there. Passengers were alighting from the bus. When the petitioner was mounting the bus, the driver had taken the bus suddenly before any signal was given to him by the second respondent. The petitioner fell down, hit the electric post nearby and sustained injuries. He was given treatment in the Government Hospital, Kuzhithurai and then sent to Nagercoil for treatment. He had gone to the Medical College Hospital at Trivandrum after discharge and is taking treatment. The petitioner is unable to conduct his life on account of the accident. He has got a wife and three children. The left shoulder of the petitioner has come down and, therefore, he could not do his duty of making rubber sheaths. The petitioner prays for a sum of Rs. 45.000/- being paid as compensation as per the details in the petition.
3. The first respondent in his counter contends as follows: The petitioner is not an employee extracting rubber. The accident did not take place as alleged by him. After the passengers waiting at the bus stand got into the bus, the conductor gave a whistle and then only the second respondent started 10 drive the vehicle. Two persons who were standing in front of a shop in the opposite side came running and attempted to get into the bus. At that time, they hit the electric post and fell down and sustained injuries. The petitioner was not a passenger and he did not get into the bus at all. The bus was not driven rashly or negligently. The petitioner had not sustained any injury much less any deformity. The petition is, therefore, liable to be dismissed.
4. On the above pleadings, after enquiry the Tribunal has dismissed the petition of the petitioner.
5. Aggrieved over the same, the petitioner has come forward with this appeal.
6. In this appeal, the learned Counsel appearing for the appellant would argue that the driver of the bus has suddenly taken the bus which resulted in the petitioner falling down and hitting the electric post and, therefore, the petitioner is entitled to compensation and even assuming that the evidence has not disclosed any negligence on the part of the driver of the bus, under the principle of 'no fault liability' as laid down in Section 92-A of the Motor Vehicles Act the petitioner is entitled to compensation on account of the injuries sustained by him in the accident. The evidence of the petitioner and the respondent has shown that the contention of the petitioner that the bus was suddenly taken by the second respondent in the petition before the conductor gave a whistle cannot be true and the petitioner was one of the two who attempted to board the bus while it was moving which resulted in his falling down and hitting the electric post. In other words, the evidence before the court shows that it was only on account of the negligence on the pail of the petitioner he had sustained injuries. Therefore, the respondents in the petition cannot be made liable for payment of any compensation to the petitioner. The only question that remains to be considered is whether the petitioner is entitled to any compensation under Section 92-A of the Motor Vehicles Act.
7. Our High Court has elaborately considered the object and scope of Section 92-A of the Act in the decision reported in K. Nandakumar v. Managing Director, Thanthai Periyar Transport Corporation Ltd. 1992 ACJ 1095 (Madras). Their Lordships have observed as follows:
It is true that on a reading of Clause (4) of Section 92-A of the Motor Vehicles Act, at the first blush it appears that even though the petitioner-claimant alone was negligent he could be awarded compensation under the said clause. On a deeper consideration, it is clear that in such a case, no compensation could be awarded to the claimant even under Section 92-A of the Act. Section 92-A of the Act was introduced only because there may be difficulty on the part of the claimants to prove the negligence of the driver of the offending vehicle. That is why, even though they are unable to prove the said negligence, Section 92-A of the Act was introduced to say that in case of accident resulting in death or permanent disablement, the minimum compensation prescribed therein must be given despite the fact that the claimant was unable to prove the negligence of the driver of the offending vehicle. The expression used in Clause (4) of Section 92-A of the Act is 'claim for compensation'. A person can make a claim for compensation against another only when the other person is at fault and not when he alone is at fault. Maybe in view of certain circumstances, he is unable to prove the fault on the part of another person, from whom he claims compensation. Only in such a case Section 92-A of the Act steps in and says that despite the abovesaid fact of inability to prove the negligence of the other party, he will be entitled to a particular minimum compensation. Social justice is thereby sought, to be rendered to him since in view of certain justifiable circumstances, he is only unable to prove the negligence on the part of the other person.
The only interpretation that could be put on Clause (4) of Section 92-A of the Act is that even where there is some negligence or default on the part of the person in respect of whose death or permanent disablement the claim has been made for compensation from the other party, whose negligence, he is unable to prove, shall not be defeated. In other words, the said Clause (4) only negates totally the concept of contributory negligence.
It must be noted here that only to the above extent, the substantive law has been modified in this regard and not to the extent that even where the deceased or the injured, as the case may be, is negligent and not the other party, the former can claim compensation. Where the former is negligent, there is no scope at all for his claiming any compensation from any other party for his own fault. That is the substantive law. That part of the substantive law has not at all been modified by Section 92-A of the Act. Such a modification cannot be the intention of the legislature since it is totally contrary to the general law of Torts and basic principle of law.
The above decision thus makes it abundantly clear that where the injured person or the deceased is found to have been clearly negligent, no compensation can be awarded under the principle of 'no fault liability' as laid down in Section 92-A (4), since Clause (4) negatives totally the applicability of concept of contributory negligence. When we consider this case on hand, under the above principle, we are led to the conclusion that the dismissal of the petition filed by the petitioner for compensation by the Tribunal is well founded and does not call for any interference by this Court. In that view, I am of opinion that this appeal is without merits and liable to be dismissed and is accordingly dismissed.
8. In the result, the appeal is dismissed. No costs.