Calcutta High Court
United India Insurance Co. Ltd. vs Puti Mahato And Ors. on 29 June, 2007
Equivalent citations: 2008ACJ127
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT Pranab Kumar Deb, J.
1. The instant application under Article 227 of the Constitution of India has been directed against the order dated 12.12.2006 passed by the learned Judge, Motor Accidents Claims Tribunal, Purulia in Motor Accident Claim Case No. 156 of 2004, whereby the opposite party No. 1/petitioner United India Insurance Co. Ltd. was directed to pay Rs. 50,000 by way of interim award.
2. Challenging the impugned order, Mr. K.K. Das, learned Counsel, representing the petitioner, submitted that in passing an award under Section 140 of Motor Vehicles Act, 1988, the learned Tribunal failed to appreciate that insurance company could not be saddled with the liability of paying the compensation under the provision of Section 140 of the Motor Vehicles Act.
3. It is submitted that in terms of the provision of Section 140 of the Motor Vehicles Act, only 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 death or disablement. In view of the exclusion of the insurer from the purview of Section 140 of the Motor Vehicles Act, the direction upon the petitioner to pay interim award under Section 140 of Motor Vehicles Act cannot be sustained, as urged by Mr. Das.
4. Mr. Das has referred to the case of National Insurance Co. Ltd. v. Krishna Biswas (2007) 1 WBLR (Cal) 776, in support of the contention that since the words 'authorised insurer' have not been incorporated in Section 140 of Motor Vehicles Act, 1988, the insurance company cannot be made a party to the proceeding under Section 140 of the Motor Vehicles Act, nor any liability can be fastened on him. It is submitted that the Division Bench has held that the provision contained in Rule 339 of West Bengal Motor Vehicles Rules being contrary to Section 140 of the Motor Vehicles Act, the rule contrary to the statute cannot be given effect to.
5. Referring to Sections 140 and 141 of the Act of 1988, it is submitted that the liability under no fault clause must be borne by the owner. The case of National Insurance Co. Ltd. v. Jethu Ram , has been referred to substantiate his contention that the insurer is not liable to pay the compensation under the no fault liability, as contained under Section 140 of the Motor Vehicles Act.
6. Mr. B.K. Mukherjee, learned Counsel representing the respondent, at the very outset has challenged the maintainability of the application under Article 227 of the Constitution of India. It is submitted that since the order passed under Section 140 of the Motor Vehicles Act is an award, it can be challenged by way of appeal. Referring to the provision contained in Section 173 of Motor Vehicles Act, it is submitted that a person aggrieved by an award of a Claims Tribunal may, within 90 days from the date of the award, prefer an appeal to the High Court. In the event of an award not exceeding Rs. 10,000 being granted, no appeal would lie. Since the petitioner had been directed to pay Rs. 50,000 in the aforesaid award, the application under Article 227 of the Constitution cannot be entertained. It is submitted that in Sadhana Lodh v. National Insurance Co. Ltd. , the Apex Court has underlined that where a statutory right to file appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Alternative remedy cannot be availed of when there is a specific provision for preferring an appeal. It is submitted that writ petition under Article 226 or 227 of the Constitution by an insurer challenging the award of the Claims Tribunal cannot be said to be maintainable as remedy of filing an appeal before the Hon'ble court under Section 173 of Motor Vehicles Act has been provided in the Act. The case of Bijoy Kumar Dugar v. Bidyadhar Dutta , has also been cited to vindicate his stand that when the law provides a remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Motor Accidents Claims Tribunal.
7. Challenging the contention that the authorised insurer cannot be made liable to pay compensation under Section 140 of the Motor Vehicles Act, Mr. Mukherjee has submitted that the statute imposes on the owner jointly or severally the liability to pay compensation to the person aggrieved in the event of death or disablement. Rule 339(3) of the West Bengal Motor Vehicles Rules has supplemented it further by incorporating the provision that the Claims Tribunal in passing an order for compensation shall direct the owner or the insurer of the vehicle in the accident to pay the amount of compensation to the claimant within two weeks from the date of receipt of such application. It is contended that in view of incorporation of Rule 339(3), there cannot be any ambiguity as to the liability of the insurer of the vehicle to pay compensation under Section 140 of the Act.
8. Where an appeal lies, no application for revision can be entertained. In dealing with the scope of appeal, it has been held in Amita Baghi v. Tejwinder Singh ; Vidya Sugar Singh v. Shanti Devi and Renuka Bai v. Jai Prakash Sethy , that no appeal would lie against the interim order passed under Section 140 of the Motor Vehicles Act. It has been held that the claimant is entitled to file a petition under Article 227 of the Constitution of India challenging the award under Section 140 of the Motor Vehicles Act. Divergent views have been expressed in Oriental Insurance Co. Ltd. v. Chintaman and Divisional Manager, United India Insurance Co. Ltd. v. Somani Ghosh , where it has been held that an award passed under Section 140 of the Motor Vehicles Act cannot be challenged in an application under Article 227 of the Constitution of India. The matter came up before the Division Bench in United India Insurance Co. Ltd. v. Shihani Santra (2007) 1 WBLR (Cal) 119, where the Division Bench has observed that use of the expression 'award' in respect of an order under Section 140 of the Act is made in a generic sense only. So far as the appellate provision under Section 173 of the Act is concerned, the expression 'award' is a substantive right and can relate to an award passed for a claim proceeding under Section 163-A or Section 166 of the Act. But as regards the no fault liability claim under Chapter X of the Act, the provisions of Chapter XII have been made applicable only for procedural purpose. Accordingly, it has been held that appeal under Section 173 of the Act does not lie against an order for compensation granted under Section 140 of the Act. Finding of the Tribunal may be examined in the proceeding under Section 166 of the Act. In view of the finding of the Division Bench, the application under Article 227 of the Constitution of India, thus, cannot be said to be non-maintainable in law.
9. Section 140 of the Motor Vehicles Act, 1988 and Rule 339(3) of West Bengal Motor Vehicles Rules, 1989, incorporate the provisions relating to the payment of compensation under the 'no fault liability'.
10. As provided in Section 140 of the Motor Vehicles Act:
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 or severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this Section.
11. Sub-clause (3) of Rule 339 provides that Claims Tribunal in passing an order for compensation shall direct the owner or insurer of the vehicle involved in the accident to pay the amount of compensation to the claimant within two weeks from the date of receipt of such application.
12. The question as to the liability of insurer to pay compensation under no fault liability has been dealt with in National Insurance Co. Ltd. v. Krishna Biswas (2007) 1 WBLR (Cal) 776. It has been held that when the legislature in its wisdom did not saddle the insurance company with any liability by using the words 'authorised insurer' similar to Section 163-A of the said Act, the insurance company neither could be made a party in the proceeding under Section 140 of the said Act, nor any liability could be fixed upon their shoulder.
13. In dealing with the provisions of Section 140 of Motor Vehicles Act, 1988, vis-a-vis, Rule 339(3) of the West Bengal Motor Vehicles Rules, 1989, it has been observed that the rule only could supplement, but not supplant the statutory provision. Hence, the rule making authority cannot put the liability upon the insurance company with reference to the liability under Section 140 of the said Act by incorporating Clause (3) of the said Rule 339. Incorporation of such liability by the West Bengal Motor Vehicles Rules, 1989, being contrary to the framework of Section 140 of the said Act, accordingly, is dehors the statute.
14. In dealing with liability as provided under Section 92-A of Motor Vehicles Act, 1939, the Apex Court in K. Nandakumar v. Managing Director, Thanthai Perivar Trans. Corporation Ltd. , has observed that by reason of Sub-section (1) of Section 92-A, an absolute liability is cast upon the owner of a vehicle to pay compensation in respect of death or disablement resulting from an accident arising out of its use. The principle as enumerated in the case of K. Nandakumar (SC), will be applicable in application for interim compensation under Section 140 of Motor Vehicles Act. In view of the principle of law as laid down in the case of K. Nandakumar (supra) and National Insurance Co. Ltd. v. Krishna Biswas (2007) 1 WBLR (Cal) 776, award directing insurance company to pay compensation under Section 140 of the Motor Vehicles Act cannot be sustained.
15. In the result, the revisional application is allowed, setting aside the order dated 12.12.2006 passed in Motor Accident Claim Case No. 156 of 2004, with a direction upon the Tribunal to dispose of the application for compensation under Section 168 of the Motor Vehicles Act, if filed, as early as possible, preferably within 2 months from the date of communication of the order.
16. Urgent xerox certified copies, if applied for, are to be supplied.