Supreme Court - Daily Orders
Usha Devi vs Pawan Kumar on 13 September, 2018
Author: Chief Justice
Bench: Chief Justice, D.Y. Chandrachud
ITEM NO.2 COURT NO.1 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).9936-9937/2016
USHA DEVI & ANR. ETC. Appellant(s)
VERSUS
PAWAN KUMAR & ORS. Respondent(s)
Date : 13-09-2018 These appeals were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
For Appellant(s) Ms. Radhika Gautam, Adv. [AOR]
Mr. Ashish Pandey, Adv.
Mr. prateek Rai, Adv.
Mr. G. Bhardwaj, Adv.
For Respondent(s)/ Mr. Vishwa Pal Singh, Adv. [AOR]
For Applicant(s)
State of Jharkhand Mr. Tapesh Kumar Singh, Adv. [AOR]
Mr. Mohd. Waquas, Adv.
Mr. Aditya Pratap Singh, Adv.
Mr. Sunny Choudhary, Adv. [AOR]
Mr. Udaya Kumar Sagar, Adv. [AOR]
Ms. Ranjeeta Rohatgi, Adv. [AOR]
State of M.P. Mr. A.K. Srivastava, Sr. Adv.
Mr. Rajesh Srivastava, Adv. [AOR]
UT of Lakshwadweep Ms. Kiran Suri, Sr. Adv.
Ms. Sunita Sharma, Adv.
Mr. Pranay Ranjan, Adv.
Mr. Raj Bahadur, Adv. [AOR]
State of W.B. Mr. Suhaan Mukerji, Adv.
Ms. Astha Sharma, Adv.
Mr. Abhishek Manchnda, Adv.
Signature Not Verified
Ms. Dimple Nagpal, Adv.
Digitally signed by
SUBHASH CHANDER
Date: 2018.09.14 for
16:44:28 IST
Reason:
M/s. P.L.R. Chambers & Co., Advs. [AOR]
Mr. M. Shoeb Alam, Adv. [AOR]
... /2
C.A.Nos.9936-37/16 ... (contd.)
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Mr. Guntur Prabhakar, Adv. [AOR]
Mr. Gopal Singh, Adv. [AOR]
Mrs. Anil Katiyar, Adv. [AOR]
State of H.P. Mr. Abhinav Mukerji, Adv. [AOR][AAG,H.P.]
Mrs. Bihu Sharma, Adv.
Ms. Purnima Krishna, Adv.
Ms. Pratishtha vij, Adv.
State of Nagaland Mrs. K.Enatoli Sema, Adv. [AOR]
Mr. Amit Kumar Singh, Adv.
State of Ms. Shashi Juneja, Adv.
Chhattisgarh Mr. Deepak Goel, Adv. [AOR]
State of Telangana Mr. S. Udaya Kumar Sagar, Adv.
Mr. Mrityunjai Singh, Adv.
A&N Administration Mr. Mrinal K. Mandal, Adv.
Mr. K.V. Jagdishvaran, Adv.
Mrs. G. Indira, Adv. [AOR]
State of J&K Mr. M. Shoeb Alam, Adv. [AOR]
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.
State of Kerala Mr. G. Prakash, Adv. [AOR]
Mr. Jishnu M.L., Adv.
Mrs. Priyanka Prakash, Adv.
Mrs. Beena Prakash, Adv.
State of Meghalaya Mr. Ranjan Mukherjee, Adv. [AOR]
State of A.P. Mr. Guntur Prabhakar, Adv. [AOR]
Ms. Prerna Singh, Adv.
Govt. of Puducherry Mr. V.G. Pragasam, Adv. [AOR]
Mr. S. Prabu Ramasubramanian, Adv.
Mr. S. Manuraj, Adv.
Orissa High Court Mr. Sibo Sankar Mishra, Adv. [AOR]
Mr. Niranjan Sahu, Adv.
High Court of Mr. Sanjai Kumar Pathak, Adv. [AOR]
Meghalaya Ms. Shashi Pathak, Adv.
Mr. Arvind Kumar Tripathi, Adv.
Mr. Akhilendra Singh, Adv.
... /3
C.A.Nos.9936-37/16 ... (contd.)
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UPON hearing the counsel the Court made the following
O R D E R
The appeals are disposed of in terms of the signed order. There shall be no order as to costs.
Pending applications, if any, are deemed to have been disposed of.
(Subhash Chander) (H.S. Parasher)
AR-cum-PS Assistant Registrar
[Signed Order is placed on the file] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.9936-9937 OF 2016 Usha Devi & Anr. etc. ... Appellants Versus Pawan Kumar & Ors. ... Respondents O R D E R Though the present appeals arise from an application seeking impleadment being rejected by the Motor Accident Claims Tribunal, Barnala and affirmation of the same in Civil Revision Nos.4324 and 4336 of 2016 by the High Court of Punjab & Haryana, yet, Ms. Radhika Gautam, learned counsel for the appellants raised a different issue altogether when the matter was listed on 21.02.2018.
It was submitted by Ms. Gautam, learned counsel appearing for the appellants that when numerous accidents occur and there is no insurance or valid insurance, it becomes extremely difficult on the part of the tribunals to pass an executable award. Elaborating the same, she had submitted, there are owners who cannot really pay and, therefore, there should be some arrangement by which the State can bear the responsibility.
When such a submission was advanced at the Bar by learned counsel for the appellants, we thought it appropriate to hear the learned Attorney General for India.
When the matter was listed on 26.03.2018, a detailed order was passed which we feel it necessary to reproduce :
C.A.Nos.9936-37/16 ... (contd.)
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“We have heard Ms.Radhika Gautam, learned counsel for the appellants and Mr.K.K.Venugopal, learned Attorney General for India, whose assistance was sought vide order dated 21.02.2018.
It is submitted by Ms.Gautam that the High Court has fallen into error by affirming the order passed by the Motor Accident Claims Tribunal, Barnala, which has declined to implead the State of Punjab as a party, despite the fact that the deceased - a sole bread earner of the family had died in an accident. It is not disputed that the vehicle in question was not insured.
It is submitted by the learned counsel for the appellants that the State has an obligation to see that no uninsured motor vehicle is driven on road by virtue of the provisions of Section 196 of the Motor Vehicles Act, 1988 (for brevity, `1988 Act') and, therefore, the State ought to pay the amount and recover it from the owner. She has commended us to the decisions rendered in Jai Prakash vs. National Insurance Company Limited and others, (2010) 2 SCC 607 especially paragraphs 33 to 39 and 41. The Court, in the said case, has dealt with many an aspect and, thereafter, to ensure that all accident victims get compensation, has suggested for a comprehensive and unified statute dealing with the accidents so that the families of the helpless victims do not suffer on account of the fact that the vehicle is not insured. We can do no better but to reproduce paragraphs 33 to 39 which read as follows:
‘33. To ensure that all accident victims get compensation, it is necessary to formulate a more comprehensive scheme for payment of compensation to victims of road accidents, in place of the present system of third party insurance.
34. For example, in South Africa and some other African countries, Road Accident Funds have been created, managed by Road Accident Fund Commissions, thereby eliminating the need for third party insurance. A fuel levy/surcharge is collected on the sale of petrol and diesel and credited to such fund. All accident victims, without exception, are paid compensation from out of the said fund by the Commission. But the feedback from operational statistics relating to such funds is that the scheme, while successful C.A.Nos.9936-37/16 ... (contd.)
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in smaller countries, may encounter difficulties and financial deficits in larger countries like South Africa or developing countries with infrastructural deficiencies.
35. An alternative scheme involves the collection of a one time (life time) third party insurance premium by a Central Insurance Agency in respect of every vehicle sold (in a manner similar to the collection of life time road tax). The fund created by collection of such third party insurance can be augmented/supplemented by an appropriate road accident cess/surcharge on the price of petrol/diesel sold across the country.
36. Such a hybrid model which involves collection of a fixed life time premium in regard to each vehicle plus imposition of a road accident cess may provide a more satisfactory solution in a vast country like India. This will also address a major grievance of insurance companies that their outgoings by way of compensation in motor accident claims is four times the amount received as motor insurance premia. The general insurance companies may however continue with optional insurance to provide cover against damage to the vehicle and injury to the owner.
37. A more realistic and easier alternative is to continue with the present system of third party insurance with two changes:
(i) Define `third party' - to cover any accident victim (that is any third party, other than the owner) and increasing the premia, if necessary.
(ii) Increase the quantum of compensation payable under Section 161 of the Act in case of hit and run motor accidents.
38. India has the dubious distinction of being one of the countries with the highest number of road accidents and the longest response time in securing first aid and medical treatment. There is therefore an urgent need for laying down and enforcing Road safety measures and establishment of large number of Trauma Centres and first aid centres. It is also necessary to consider the establishment of a Road Safety Bureau to lay down Road Safety Standards and norms, enforce Road safety measures, establish and run Trauma Centres, establish First Aid Centres in Petrol Stations, and carry out research/data collection for accident prevention.
C.A.Nos.9936-37/16 ... (contd.)
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39. Several countries have comprehensive enactments dealing exclusively with accidents. In place of the provisions relating to Accident tribunals and award of compensation in the Motor Vehicles Act, 1988, and other statutes dealing with accidents and compensation, enacting a comprehensive and unified statute dealing with accidents may be considered.’ We also reiterate the recommendations given in the said judgment. In paragraph 41, the Court has dealt with securing the compensation to the victims of accidents involving the vehicle which is not insured. The said paragraph reads as follows:
‘41. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf.’ The Court had further directed that the suggestions be placed before the Central Government by the learned Solicitor General and the Supreme Court Registry was directed to send copies of the order to the Chief Secretaries and the Director Generals of Police of all the States and the Registrar Generals of all the High Courts, for compliance with the directions.
We may note with profit the submissions advanced by Mr.K.K.Venugopal, learned Attorney General for India. According to him, in the absence of a legislation, the State cannot be held liable under the 1988 Act. There can be no doubt that the State cannot be held liable because of non-compliance by the owner of vehicle who has failed to insure the vehicle. The owner of the vehicle, in this regard, is liable to face a criminal action. What has been stated in paragraph 41 of the judgment in Jai Prakash vs. National Insurance Company Limited and others (supra) is a some kind of solace to the victims. But for the said purpose, proper rules are required to be C.A.Nos.9936-37/16 ... (contd.)
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framed. We have been apprised that the Delhi Government has framed a Rule as is evident from paragraph 41 of the above-mentioned judgment - Delhi Motor Accident Claims Tribunal Rules, 2008. The said Rule reads as follows:
‘6.Prohibition against release of motor vehicle involved in accident.-
(1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.
(2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in sub-rule (1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident.’ Though direction was issued to all the State Governments to incorporate such a rule yet it appears that no steps have been taken so far. In view of the aforesaid, we direct that a copy of the order passed today be communicated to the Chief Secretaries and the Director Generals of Police of all the States and the Registrar Generals of all the High Courts to see that such a rule is introduced if already not done, so that the victims of an accident get some compensation. They may file their response within six weeks. Needless to say that the compensation in hit and run cases will also apply to such cases.
Let the matter be listed on 16.05.2018.” C.A.Nos.9936-37/16 ... (contd.)
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In pursuance of the aforesaid order, certain States have issued notifications which have the same effect as that of the Notification issued by the Govt. of NCT of Delhi. Other States are in the process of issuing such notifications.
In view of the aforesaid, we do not intend to keep the appeals pending. We direct the Chief Secretaries of each of the States to bring out necessary notification, if not already done, on the lines of the notification issued by the Govt. of NCT of Delhi keeping in view the decision in Jai Prakash (supra). The said exercise shall be completed within twelve weeks hence.
Before we part, we must record our appreciation for the submissions advanced with concern and anxiety by Ms. Radhika Gautam, learned counsel appearing for the appellants.
With the aforesaid directions, the appeals stand disposed of. There shall be no order as to costs.
........................CJI.
[DIPAK MISRA] ..........................J. [Dr. D.Y. CHANDRACHUD] New Delhi.
September 13, 2018.