Karnataka High Court
Smt Priya vs Sri Armugam on 11 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
M.F.A. NO.3889 OF 2011 (MV-D)
BETWEEN :
1. SMT PRIYA
W/O LATE SHIVAKUMAR
AGED ABOUT 32 YEARS.
2. MASTER. PREMKUMAR
S/O LATE SHIVAKUMAR
AGED ABOUT 13 YEARS.
3. KUM. ARCHANA
D/O LATE SHIVAKUMAR
AGED ABOUT 11 YEARS.
APPELLANT NOS.2 AND 3 ARE MINORS
DULY REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN 1ST APPELLANT.
ALL ARE R/AT NO.123, GANGAMMA GUDI ROAD
KARIYAPPANAPALYA, LINGARAJAPURA POST,
BANGALORE - 560 084.
... APPELLANTS
(BY SRI K N HARISH BABU, ADVOCATE)
AND :
1. SRI ARMUGAM
S/O CHOKKALINGAM
AGED ABOUT 38 YEARS
NO.53, NANDHI STREET
2
GURUMURTHY LAYOUT
R M NAGAR, BANGALORE-560016
2. THE REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD
REGIONAL OFFICE, NO. 144/145
SHIVANDA COMPLEX, M G ROAD
BANGALORE-560002.
... RESPONDENTS
(BY SRI SHIVAKUMAR M.V. FOR SRI A N KRISHNASWAMY,
ADVOCATE FOR R2;
R1 - NOTICE HELD SUFFICIENT V/O. DATED 15.07.2014)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:13.12.2010
PASSED IN MVC NO.3860/2009 ON THE FILE OF I ADDITIONAL
SCJ & MACT, BANGALORE, DISMISSING THE CLAIM PETITION
FOR COMPENSATION.
THIS M.F.A. COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed to ascertain the status of Civil Appeal No.9694 of 2013 arising out of S.L.P. (Civil) No.7586 of 2012 before the Hon'ble Supreme Court. Learned counsel for the respective parties submit that the said Civil Appeal was considered by a Three Judge Bench of the Hon'ble Supreme Court and an opinion has been rendered on 24.11.2017 which is reported in AIR 2017 SC 5710 and that this appeal may be disposed of. Therefore, 3 with the consent of learned counsel on both sides, the appeal is heard finally.
2. The claimants in M.V.C. No.3860 of 2009 have preferred this appeal being aggrieved by the dismissal of their claim petition by judgment and award dated 13.12.2010 passed by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as the 'Tribunal' for the sake of brevity).
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The claimants filed the petition under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act', for the sake of brevity) seeking compensation on account of the death of Shivakumar in a road traffic accident that occurred on 29.03.2009. On the fateful day at 3.00 p.m., Shivakumar, being the father of claimant Nos.2 and 3 and husband of claimant No.1, was riding motor cycle bearing Reg. No.KA-53-L-4079 on old Madras road near Tin Factory, Bengaluru. Suddenly the 4 motor cycle skidded and Shivakumar fell off the motor cycle, sustained grievous injuries and later succumbed to the said injuries. Contending that Shivakumar was hale and healthy and that he had suffered a premature death on account of the road traffic accident, his legal representatives filed the claim petition under Section 163A of the Act seeking compensation under the provisions of the Act.
5. The claim petition was resisted by second respondent insurer contending that Shivakumar was intoxicated and was riding the vehicle without a helmet, lost control, fell down and hit his head towards the side of the road and the accident took place due to his own negligence. While admitting the issuance of policy in respect of the vehicle in question, the insurance company sought dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed following issues for its consideration :
1. Whether petitioners prove that on 29.03.2009 at 3.00 p.m., on old Madras 5 road, near Tin Factory, Bangalore, Shivakumar, being rider of the motor cycle, bearing Reg. No.KA-53-L-4079 drove the said vehicle in a rash and negligent manner so as to endanger human life and caused accident resulting in grievous injuries to him and later he succumbed to the said injuries?
2. Whether the petitioners are the dependants of the deceased Shivakumar?
3. Whether the petitioners are entitled to for compensation and if so, what amount and from whom?
4. What order and award?
7. In support of their case, the claimant examined P.W.1, Priya, the widow of the deceased. She produced 15 documents which were marked as Exs.P-1 to P-15. While the insurance company examined R.W.1 and produced the insurance policy as Ex.R-1. On the basis of the evidence on record, the Tribunal answered issue No.1 in the negative, issue Nos.2 and 3 as "do not survive for consideration" and dismissed the claim petition. Being aggrieved by the dismissal of the claim petition, the claimants have preferred this appeal.
6
8. We have heard learned counsel for the appellants and learned counsel for the respondent insurance company and perused the material on record.
9. Appellants' counsel contended that the claimants had preferred the claim petition under Section 163A of the Act and not under Section 166 as stated in the judgment of the Tribunal. The said Section is a special provision to pay compensation on structured formula basis. The said Section has been inserted by an amendment made to the Act with effect from 14.11.1994. Section 163A begins with a non obstante clause and has an over- riding effect and when a claim petition is filed under the said provision, compensation would have to be awarded on the basis of the Second Schedule in a structured formula without taking into consideration the aspect of negligence. He submitted that the object and purpose of inserting Section 163A of the Act is to incorporate the strict liability principle in Tort Law into the provisions of the Act so as to make available compensation to the claimants as a result 7 of death or permanent disablement due to an accident arising out of the use of a motor vehicle in a public place. He submitted that it is not incumbent for the claimants to prove negligence when a claim petition is filed under Section 163A of the Act.
10. Learned counsel for the appellants placed reliance on the opinion of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Sunil Kumar and Another reported in AIR 2017 SC 5710 (Sunil Kumar) and submitted that the dismissal of the claim petition being erroneous, the judgment and award of the Tribunal may be set aside and the matter may be remanded for a fresh consideration.
11. Per contra, learned counsel for the insurance company supported the judgment and award of the Tribunal and contended that Sunil Kumar's case does not apply to the instant case. That in the instant case, the vehicle skidded and Shivakumar, the deceased died as a result of his own negligence; that he cannot claim any compensation as there is no tort feasor in the instant case. 8 He contended that Section 163A of the Act does not apply, and therefore, the dismissal of the claim petition by the Tribunal was just and proper and that the appeal is devoid of merit and the same may be dismissed.
12. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration :
1. Whether the Tribunal was justified in dismissing the claim petition filed under Section 163A of the Act?
2. What order?
13. It is noted that Shivakumar was riding motor cycle bearing Reg. No.KA-53-L-4079 on 29.03.2009 at about 3.00 p.m. on old Madras road, Bengaluru, when the motor cycle skidded resulting in Shivakumar falling off the motor cycle, sustaining grievous injuries and succumbing to the same. No other vehicle was involved in causing the death of Shivakumar.
9
14. Section 166 of the Act deals with filing of an application seeking compensation by a person, who has sustained injury; or by the owner of the property; or where the death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. The claim petition filed under Section 166 of the Act has to be considered by the Tribunal in proof of negligence by the claimants vis-à-vis causing the injury or death in a road traffic accident.
15. Section 140 of the Act is in Chapter X, the heading of which is, "Liability without fault in certain cases". Section 140 found a place from the very inception and enforcement of the Act.
16. However, with effect from 14.11.1994 amendment has been made to the Act so as to insert Section 163A of the Act. The said Section reads as under :
" 163A. Special provisions as to payment of compensation on structured formula basis -10
(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 authorized 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 Workmen's 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."
17. It is a special provision as to payment of compensation on structured formula basis, which is 11 indicated in the Second Schedule. On a reading of the said Section, it is evident that it begins with a non obstante clause vis-à-vis not only any other provision in the Act itself, but also any other law for the time being in force or instrument having the force of law. The Section states that the owner of the motor vehicle or the authorized 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. Further, under Sub-section (2) of Section 163A of the Act, the claimant is not 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. Hence, under Sub-section (2) of Section 163A of the Act, it has been explicitly provided that the claimant need not plead nor prove any wrongful act on the part of the owner or the insurer of the vehicle. In other words, it is a liability, which is fastened on the owner and or insurer of a 12 vehicle simply because of the use of the vehicle in a public place resulting in injury or death. Therefore, the object and purpose of Section 163A is totally contrary to the object and purpose of Section 166 of the Act. In the circumstances, the special provision under Section 163A of the Act would have an over-riding effect not only on any other provision of the Act, but also in any other law for the time being in force or instrument having the force of law. In` other words, Section 163A of the Act being a special provision has an over riding effect on any other provision under the Act or in law. In the circumstances, it is the duty of the Court to interpret and give full scope and ambit to the said provision.
18. The said provision was considered by the Hon'ble Supreme Court in the case of Sunil Kumar (supra) and it has been held as under :
"8. From the above discussion, it is clear that grant of compensation under Section 163A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of 13 negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and / or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim.14
10. The appeal will now be listed before regular Bench for disposal on merits, after the opinion of the larger Bench on the true scope and meaning of the provisions contained in Section 170 of the Motor Vehicles Act, 1939 is rendered.
11. As the final disposal of the appeal may take some time, we are of the view that 50% of the compensation that is presently lying in deposit in the Registry in terms of the Order dated 24.02.2012 should be released to the claimant on due identification."
The said judgment has been followed in Shivaji and Another v. Divisional Manager, United India Insurance Company Limited and Others reported in AIR 2018 SC 3705.
19. In Sunil Kumar's case, the contention of the insurance company was that the claim petition filed under Section 163A of the Act was not maintainable as the injured therein himself was driving the vehicle and no Disability Certificate was produced. Similarly, in the instant case, the deceased was the rider of the vehicle and it has been established that he died on account of the 15 grievous injuries sustained by him while riding the motor cycle in question when it skidded.
20. In Kaushnuma Begum and Others v. New India Assurance Co. Ltd. and Others reported in 2001 ACJ 428, which has also dealt with claim petition filed under Section 163A of the Act, the facts were that the jeep capsized while it was in motion on account of the bursting of front tyre of the jeep, in the process the vehicle hit one Haji Mohammed, who was walking on the road at the ill- fated moment and consequently the said pedestrian was crushed and subsequently succumbed to the injuries sustained in the accident. According to the Hon'ble Supreme Court, if the facts of this case were to be considered under Section 166 of the Act, definitely the contention of the insurance company as well as the owner of the jeep would be that there was no negligence which was caused while driving the vehicle by the driver of the jeep since the death of Haji Mohammad occurred on account of bursting of front tyre of the jeep and which resulted in the jeep capsizing and in the process hitting the 16 pedestrian Haji Mohammad. If the claim petition had been filed under Section 166 of the Act, there being no negligence on the part of the driver of the jeep, the claim petition would have been dismissed. In order to meet such circumstances, the Parliament amended the Act so as to incorporate Section 163A of the Act. In such circumstances, negligence is not the basis for payment of compensation, what is pertinent is the use of the vehicle in a public place resulting in injuries being caused or death which would give a cause of action to the claimants to seek compensation.
21. In the aforesaid case, the Hon'ble Supreme Court after considering various provisions of the Act opined that even if there is no negligence on the part of the driver or owner of the motor cycle, the accident happens while the vehicle was in use, the owner would be made liable for damages suffered on account of the said accident. By relying on the principle of strict liability propounded in Rylands v. Fletcher, 1861-73 All ER 1, it was held as under :
17
"11. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Rylands v. Fletcher, 1861-73 All ER 1, can apply in motor accident cases. The said rule is summarized by Blackburn, J. thus :
"The true rule of law is that the person who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
12. The House of Lords considered it and upheld the ratio with the following dictum :
"We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything 18 likely to do mischief if it escapes, must kept it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here it is unnecessary to inquire what excuse would be sufficient."
13. The above rule eventually gained approval in a large number of decisions rendered by courts in England and abroad. Winfield on Tort has brought out even a chapter on the 'Rule in Rylands v. Fletcher'. At page 543 of the 15th Edn. of the celebrated work the learned author has pointed out that "over the years Rylands v. Fletcher, 1861-73 All ER 1, has been applied to a remarkable variety of things :
fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation ... ". He has elaborated seven defences recognized in common law against action brought on the strength of the rule in Rylands v. Fletcher. They are : (1) Consent of the plaintiff, i.e., volenti non fit injuria; (2) Common benefit i.e., where the source of the danger is maintained for the common benefit of the plaintiff and the 19 defendant, the defendant is not liable for its escape; (3) Act of stranger, i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply; (4) Exercise of statutory authority, i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise; (5) Act of God or vis major, i.e., circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility; (6) Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply; (7) Remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage 'which is the natural consequence of its escape'.
22. In the case of M. C. Mehta v. Union of India, 1987 ACJ 386 (SC), dealing with the escape of Oleum gas from an industry and such victims who had inhaled the gas who had filed applications seeking compensation, it was held that liability of the industry responsible for the 20 release of hazardous gas into the atmosphere was strict and absolute.
23. In Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai reported in 1987 ACJ 561 (SC) on the question regarding the use of motor vehicles in a public place and the rule that would apply it has been observed as under :
" Today thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicle accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, (1868) LR 3 HL 330. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have caused the accidents are not known, are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether 21 negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicle accidents as a liability without fault."
24. A person or an individual is generally held liable for the wrong he commits. In some cases an individual can be held liable for no fault of his own. This is known as the concept of strict liability, which was first enunciated in the case of Rylands vs. Fletcher [L.R. 3 H.L. 330 (1868)]. The principle of strict liability clearly states that a person who keeps hazardous substances in his premises is responsible for the fault if that substance escapes in any manner and causes damage. This principle is applicable even if there was no negligence on the side of the person keeping it and the burden of proof always lies on the defendant to prove how he is not liable.22
25. A person is made liable only when he is at fault. But the principle governing these two rules is that a person can be made liable even without his fault. This is known as the principle of "no fault liability." Under these rules, the liable person may not have done the act, but he will still be responsible for the damage caused due to the acts.
26. The rapid growth of fast moving transportation and high technology is leading towards risks of numerous injuries to person and property caused by collisions. To meet these consequences, there should be a sensible and equitable system of compensation and sound paraphernalia of prevention of these hazards.
27. The person who uses the vehicles on the road should be held liable to make compensation to anyone who is killed or injured as a consequence of its use. The provisions relating to no-fault liability as contained in the Motor Vehicle Act 1988 evolved to serve the purpose of the social security of the victim. On perusal of the above judgments' it can be inferred that the concept of strict 23 liability recognised under Sections 140 and 163A of the Motor Vehicles Act, 1988.
28. The rule of strict liability which is based on causation rather than fault, has become increasingly prominent in the laws of continental European countries.
French Civil Code makes a person liable for damage caused by things of which he is in charge. 'Strict liability is imposed in Germany, the Netherlands and Switzerland. The departure from tort liability began in Germany in nineteenth century in the form of scheme of industrial accident insurance. Since then it has spread all over the world.
29. In the Federal units of the United States of America exist a variety of provision regarding imposition of no-fault liability. Some States have introduced 'add-on- plans' schemes, giving no- fault compensation for road injuries without any restriction on tort liability other than an offset of no-fault compensation paid or payable. 24
30. In the circumstances, it is held that the principle of strict liability has been incorporated under Section 163A of the Act. Therefore, even in a case where there is no tort feasor and no negligence caused by any tort feasor, but on account of the use of the motor vehicle in a public place, an injury or death is caused, in such a situation under Section 163A of the Act read with Second Schedule, on structured formula basis, the claim petition would have to be considered dehors the aspect of negligence. But, in the instant case, the claim petition has been dismissed. In the circumstances, we set aside the judgment and award of the Tribunal. Matter is remanded to the concerned Tribunal to re-consider the case afresh in light of the law laid down by the Hon'ble Supreme Court and followed by this Court and in accordance with law.
31. As the first respondent before the Tribunal, owner of the vehicle was placed ex parte and notice to him is held sufficient, but since the matter is being remanded, the Tribunal shall issue notice to him. Since the other parties are represented by their respective counsel, they 25 shall appear before the Tribunal on 22.07.2019 without expecting separate notices from the Tribunal. As noted above, the Tribunal shall dispose of the claim petition in accordance with law. The appeal is allowed in the aforesaid terms.
Parties to bear their respective costs.
SD/-
JUDGE SD/-
JUDGE hnm