Kerala High Court
Theethi And Anr. vs Motor Accidents Claims Tribunal, ... on 17 October, 1995
Equivalent citations: I(1996)ACC270, 1996ACJ609, AIR1996KER237, AIR 1996 KERALA 237, ILR(KER) 1996 (1) KER 393, (1995) 2 KER LT 687, (1996) 1 ACC 270, (1995) 2 KER LJ 751, (1996) ACJ 609, (1996) 1 CIVLJ 301, (1996) 1 TAC 96
ORDER P.A. Mohammed, J.
1. This is a motor accident claim case involving the death of a person in a collision of two motor vehicles. The question for determination is whether the amount of compensation under Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') is payable without establishing the identity of both the vehicles and wrongful act or neglect of the owners of the vehicles, which resulted in the accident causing the death.
2. The petitioner's son, Rajendraprasad, was travelling in a taxi car on 22-11-1992 and in the course of the journey it was hit by a lorry which resulted in his death. After the accident the lorry was driven away swiftly leaving no chance to trace out its identity. However, the identity of the taxi-car was available since the deceased had travelled in the car. The petitioners, who are the legal heirs of the deceased, filed a petition, O.P. (M.V.) No. 181 of 1993 before the Motor Accidents Claims Tribunal, Palakkad claiming compensation on account of death of the deceased, who was the bread winner of the family and they were depending on him for their means of livelihood. They further filed an interlocutory application LA. No. 862 of 1994 under Section 140 of the Act praying for a direction to the respondents to pay an interim compensation of Rs. 25,000/- under the head of 'no fault liability'. However, this application was opposed by the third respondent therein, M/s. Oriental Insurance Company Limited, Palakkad, contending that it was a 'hit-and-run' case and hence the application was not maintainable. The Tribunal, however, rejected the application as per Ext.P3 order dated 1-4-1995. The said order is under challenge in this writ petition.
3. Learned counsel for the fourth respondent contends that the police could not detect the lorry which hit the taxi car and they had, therefore, filed a report before the Chief Judicial Magistrate's Court on 30-3-1993 to that effect. His further case is that this being a 'hit-and-run' case, the special provisions contained in Section 161 of the Act atone will apply and hence, the petition under Section 140 is not maintainable.
4. Chapter X of the Act deals with 'no fault liability' in certain cases. The provisions of this Chapter shall have overriding effect on all other provisions contained in the Act or any other law for the time being in force, in view of Section 144. Section 140 refers to the maxim of 'no fault liability'. The claimant shall not be required to plead and establish that the death or permanent disablement 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. This is what is provided in Sub-section (3) of Section 140. While dealing with the corresponding Section 92-A of Act IV of 1939, Venkataramiah, J. held in Gujarat State Road Transport Corporation v. Ramabhai Prabhatbhai, (1987) 3 SCC 234 : (AIR 1987 SC 1690): "This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident."
5. What is required to be stated by a claimant for obtaining an order for compensation under Section 140(1) of the Act is that the death or permanent disablement of the victim has resulted from an accident arising out of the use of a motor vehicle or motor vehicles. When the Tribunal is satisfied with this requirement it can, by an order, direct the owner or owners of the motor vehicles to pay compensation in respect of such death or disablement under Sub-section (1). While doing so the Tribunal is not concerned as to whether the accident was due to any wrongful act, neglect or default of the owner or driver of the vehicle nor was it due to such acts of the victim. What is embodied in Section 140 is a modern measure of social justice in order to sustain and channelize socio-economic life of the people who approach the Tribunal for compensation without pleading and proof. Access to justice is thus guaranteed to the dependents of victims of motor accidents which are rapidly increasing in the present-day society. Access to Court is an aspect of social justice and, therefore, Justice Krishna Iyer made a clarion call "we should expand the jurisprudence of access to justice as an integral part of social justice ......" in State of Haryana v. Smt. Darshana Devi, AIR 1979 SC 855. The access to justice theory vigorously applies in the field of litigation. The ends of litigation is always the attainment of social justice. That is why Lord Hailsham said: "It is not only important to realise that litigation is an evil; it is also important to realise that neither speed nor cheapness nor universality are the ultimate ends of litigation. The ultimate end is justice ....,..". Joshua Rozenberg observed: "The key issue facing the legal system today is access to justice. Few of us give it a second thought. We assume justice will somehow be available, on tap, whenever we need it; but when the time comes to enforce our rights many of us will find it very difficult -- if not downright impossible -- to obtain true justice from the Courts." (The Search for Justice). While deciding a petition under Section 140 of the Act, the Tribunal shall not forget the enshrining principle of access to justice theory behind the legislative measure. What is contained in Sub-sections (3) and (4) of Section 140, according to me, is a clear legislative mandate in favour of access to justice theory.
6. The liability of owner or owners of the vehicle or vehicles under Section 140 is joint and several. This section contemplates involvement of two or more motor vehicles. In an accident involving two motor vehicles, liability to pay compensation is upon both the owners of the vehicles. In such cases, when an owner of one vehicle is identified he is liable to pay compensation because the liability isjoint and several. The claim under Section 140 cannot be defeated in such cases on the ground that owner of other vehicle is not detected. In the present case, the owner of the taxi car which was used by the deceased was identified. That being so, it cannot be said that the application for compensation under Section 140 of the Act filed by the petitioners is not maintainable. I, therefore, hold that Ext.P 1 is maintainable in the facts of this case.
7. Section 161 contains special provision as to compensation in case of 'hit-and-run motor accident' which term is defined in Clause (b) of Sub-section (1) thereof thus: "'Hit-and-run motor accident' means an accident arising out of the use of a motor vehicleor motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose."
8. An accident can be said to be a 'hit-and-run motor accident' only when the identity of the motor vehicle or motor vehicles involved in the accident cannot be ascertained in spite of reasonable efforts made in that behalf. Section 161 of the Act is intended to provide a scheme for granting relief to the victims of 'hit-and-run motor accident cases'. Under this provision the liability to provide a scheme for payment of compensation in such accidents is on General Insurance Corporation of India and Insurance Companies carrying on general insurance business. Claims under Sections 140 and 161 are separate and distinct. The provisions contained in these sections operate in different fields. Though both sections contemplate an accident, the former will operate when the identity of at least one of the vehicles involved in such accident is ascertainable and the latter, when the identity of the vehicle or vehicles is unascertainable. In a claim under Section 140 as pointed out above the claimant need not plead and prove the wrongful act or neglect of the owner or driver of the vehicle which is identified as being involved in the accident whereas in a claim under Section 161 there must be proof that the identity of the vehicle or vehicles cannot be ascertained in spite of reasonable efforts in that behalf. When identity of the vehicle is ascertained it may not be a case of 'hit-and-run motor accident'. I have already found that when the identity of one of the vehicles involved in the accident is ascertained the claim under Section 140 cannot be rejected. Therefore, the view adopted by the Tribunal cannot be held to be correct.
9. The petitioners claimed a sum of Rs. 25,000/- towards the compensation under the head of 'no fault liability'. Since the contentions raised by the fourth respondent Insurance Company are found to be unsustainable, they are liable to pay the aforesaid sum to the petitioners without delay.
10. In the result, Ext.P3 order of the first respondent Tribunal is set aside and Ext.P1 petition is allowed. The fourth respondent is directed to deposit the aforesaid sum of Rs. 25,000/- before the first respondent within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed. No order as to costs.