Rajasthan High Court - Jaipur
National Insurace Comp Ltd vs The Presiding Officer M A C T on 11 April, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 10847/2008 National Insurance Company Limited Vs The Presiding Officer of the Motor Accident Claims Tribunal, Jaipur District & ors 11.4.2011 HON'BLE MR. JUSTICE MN BHANDARI Ms Raj Sharma - for petitioner BY THE COURT:
By this writ petition, a challenge has been made to the order dated 25.4.2008 whereby the application moved by the claimants under section 140 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') was allowed.
Learned counsel for petitioner company submits that without determining the issue of negligence and liability of the insurance company, the impugned order has been passed directing the insurance company to pay amount in ignorance of section 140 of the Act of 1988, as it is only the owner/ owners, who can be made liable therein. To substantiate the argument, reference of the judgment of the Calcutta High Court in the case of National Insurance Co Ltd Vs Smt Krishna Biswas reported in AIR 2007 Calcutta 122 has been given apart from the judgment of the same court in the case of United India Insurance Co Ltd Vs Smt Puti Mahato and others reported in 2007 (4) TAC 161 (Calcutta).
I have considered the submissions made by learned counsel and scanned the matter carefully.
Since the main issue raised is in regard to provisions of section 140 of the Act of 1988, said provision is quoted herein for ready reference -
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 vehicles 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 subsection (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 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].
Perusal of aforesaid shows that when death or permanent disablement of any person has resulted from an accident arising out of use of motor vehicle/vehicles, the owner/owners thereof would be liable jointly or severely. The payment towards 'no fault liability' is without a plea and proof by the claimant/s towards default/ negligence or wrongful act of owner/ owners of the vehicle. The payment under section 140 of the Act of 1988 is however be adjusted in the final award as provided under the proviso.
In view of the aforesaid, it is coming out that by way of interim measure only, the amount is paid to the claimant as 'no fault liability' subject to final award. Looking to the aforesaid, it makes no difference if the word 'owner/owners' have been used to fasten the liability under section 140 of the Act of 1988. In fact, it is the owner's liability which is indemnified by the insurance company thus beneficial legislation for claimant/s cannot be interpreted by taking a narrow meaning of the words. If the provision of section 145-C is looked into, the definition of the words lialibility includes liability in respect thereof under section 140 of the Act of 1988. The aforesaid definition provided under Chapter XI is regarding liability of the insurance company thus quoted hereunder -
145. Definitions.- In this Chapter,-
(a)..
(b)..
(c) liability, wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140;
Section 147 provides requirement of the insurance policy and limits of the liability. Sub-section 2 of section 147 provides coverage of liability of the insured in respect of any accident. Section 149 provides about the duty of the insurer to satisfy judgment and the award against the person insured. In reference of the provisions aforesaid and section 163-A, the authorised insurer is liable to pay the compensation as determined. Section 163A is also quoted hereunder -
163A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, permanent disability shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
It goes without saying that insurer indemnify the liability of the owners.
Looking to the aforesaid and with due respect to the judgment of the Calcutta High Court, it cannot be accepted that insurance company is not liable to pay interim compensation under section 140 of the Act of 1988. This is more so when now the Hon'ble Apex Court is directing the insurance company to pay off the liability of the final award even if they are not held liable. It is, however, with the arrangement that insurance company can recover the said amount from the owner of the vehicle. Thus, one side, the Hon'ble Apex Court has taken a beneficial interpretation for the claimant and, at the same time, Calcutta High Court has taken a narrow meaning of section 140 of the Act. It is even without reference of the other relevant provisions, specially the provision under Chapter XI of the Act of 1988, which provides for liability of the insurance company.
In view of the aforesaid, I do not find any illegality in the order passed by the Tribunal while directing the insurance company to pay the amount of interim relief under section 140 of the Act of 1988. In fact, any payment under section 140 of the Act of 1988 is subject to final award of the Tribunal. If the insurance company is finally held not liable to pay the compensation, obviously, it can recover the amount form the owner, if paid pursuant to the provision of section 140 of the Act of 1988. Accordingly, writ petition is dismissed with no order as to costs.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW