Patna High Court
New India Assurance Co. Ltd. vs Fida Hussain And Anr. on 12 October, 2001
Equivalent citations: 2003ACJ1048, 2002(50)BLJR44
Author: C.K. Prasad
Bench: C.K. Prasad
JUDGMENT S.N. Jha, J.
1. A short but significant question of law has arisen for decision in this appeal. The question is whether without filing a petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act'), application for 'no fault' compensation under Section 140 of the Act is maintainable.
2. The short facts of the case are that one Chhotu Hussain died in a motor accident on 22.10.1998 near Kachahari Petrol Pump on G.T. Road at Sasaram. His father Fida Hussain, respondent No. 1 herein, lodged a criminal case, Sasaram P.S. Case No. 548 of 1998 under Sections 279 and 304-A, Indian Penal Code. He also filed an application under Section 140 of the Act for fixed compensation of Rs. 50,000 on the principle of 'no fault liability' which was registered as Motor Vehicles Case No. 116 of 1998 before the Motor Accidents Claims Tribunal, Rohtas at Sasaram. On 10.2.1999 order in terms of Section 140 of the Act was passed. As the vehicle in question, a truck bearing registration No. UP 70-D 9786, was insured with the appellant New India Assurance Co. Ltd., it was directed to pay Rs. 50,000 as interim compensation within 60 days of the order with interest at the rate of 10 per cent per annum from the date of the order. The appellant preferred Miscellaneous Appeal No. 288 of 1999 in this court objecting to the maintainability of the claim case on the ground that compensation under Section 140 of the Act is payable only in a claim case under Section 166 of the Act, and where no such case is filed the Tribunal has no jurisdiction to pass any such order. In other words, a direct application under Section 140 is not maintainable. The learned single Judge, before whom the appeal came up for hearing, dismissed the appeal observing that a Division Bench of this court in the case of Kanhai Rai v. Dharampal 2002 ACJ 260 (Patna), has held that where the vehicle is insured on the date of accident, the insurer is liable to pay the interim compensation even though the insurer is not specified as the person against whom any order can be passed under Section 140. If ultimately it is found at the time of final determination that the insurer is not liable to pay compensation, order can be passed for reimbursement of the amount from the owner. As regards the submission that the application under Section 140 was not maintainable, the learned Judge observed that Section 140 refers to compensation on the principle of 'no fault', whereas under Section 166 application for compensation can be made with respect to an accident of the nature specified in Sub-section (1) of Section 165. Therefore, non-filing of claim petition under Section 166 does not exempt the owner or the insurance company from the liability to pay compensation on the principle of 'no fault' under Section 140.
3. Mr. Ashok Priyadarshi, the learned Counsel for the appellant submitted that in at least two cases, viz., Oriental Insurance Co. Ltd. v. Chulchul Devi 1999 (1) PLJR 747 and Divisional Manager, Oriental Insurance Co. Ltd. v. Gulzari Kuer 1999 (1) PLJR 872, this court held that a direct application under Section 140 of the Act is not maintainable and, therefore, it was not open to the learned single Judge to take a contrary view. Having noticed one of those cases in the order, the learned Judge, if he wished to take a different view, should have referred the case to a larger Bench. Counsel pointed out that Miscellaneous Appeal No. 232 of 1998 referred to the Division Bench on the same point has been admitted for regular hearing. The Counsel placed reliance, besides the above-mentioned two cases on Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC).
4. Before considering the point at issue it may be mentioned that the provisions relating to 'no fault' compensation were incorporated in the Motor Vehicles Act, 1939 by amendment in 1982 by Act 47 of 1982. Earlier in some cases the courts had impressed upon the need and desirability of having machinery for payment of compensation on the principle of 'no fault' liability. The need for 'no fault' liability was expressed for the first time, perhaps, in the case of Kesavan Nair v. State Insurance Officer 1971 ACJ 219 (Kerala), in these words:
Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing negligence of the operator of the vehicle a blanket liability must be cast on the insurer, instead of its being restricted to cases where the vehicle operator has been shown to be negligent. This is more a matter for the legislature and not for the court. But this is a lacuna in the law which I think it would be just to rectify.
Later in the case of Manjushri Raha v. B.L Gupta 1977 ACJ 134 (SC), the Apex Court also observed:
With the emergence of an ultramodern age which has led to strides of progress in all spheres of life, we have switched from fast to faster vehicular traffic which has come as a boon to many, though sometimes in the case of some it has also proved to be a misfortune....The time is ripe for serious consideration of creating no fault liability, having regard to the directive principles of the State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of Torts based on no fault needs reform.
Again in Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 507 (SC), the Supreme Court observed as under:
We cannot part with this case without impressing upon the Government, once again, the urgent need to provide by law for the payment of reasonable amounts of compensation, without contest, to victims of road accidents. We find that road accidents involving passengers travelling by rail or public buses are usually followed by an official announcement of payment of ex gratia sums to victims, varying between five hundred and two thousand rupees or so. That is a niggardly recognition of the State's obligation to its people, particularly so when frequency of accidents involving public transport system has increased beyond believable limits....It was four years ago that this court sounded a warning and a reminder in Manjushri Raha v. B.L. Gupta 1977 ACJ 134 (SC).
5. In deference to the repeated reminders by the courts, Parliament thought it appropriate to bring about the legislation and thus by amendment in 1982, Act 47 of 1982, provisions were made in Motor Vehicles Act. A new Chapter containing Section 92-A and allied sections was added. Section 140 of the present Act corresponds to Section 92-A of the old Motor Vehicles Act.
6. At this stage, the relevant provisions of the Act may be noticed at one place:
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 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 Sub-section (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 twentyfive 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.
141. Provisions as to other right to claim compensation for death or permanent disablement.-(1) The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in Section 163-A (such other right hereafter in this section referred to as 'the right on the principle of fault') to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.
(2) A claim for compensation under Section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and-
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
144. Overriding effect.-The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.
xxx xxx xxx 163-A. 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 legal heirs of the victim, as the case may be.
163-B. Option to file claim in certain cases.-Where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both.
xxx xxx xxx
165. Claims Tribunals.-(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both.
Explanation.-For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' includes claims for compensation under Section 140 and Section 163-A. xxx xxx xxx
166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-
xxx xxx xxx Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
168. Award of the Claims Tribunal.- (1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (Emphasis supplied)
7. From a close reading of the above provisions it is manifest that the Act does not create any bar, express or implied, to the filing of any application under Section 140 directly without filing claim under Section 166 of the Act. As a matter of fact, Sub-section (1) of Section 141 makes it clear that the right to claim compensation under Section 140 is in addition to any other right. It cannot thus be made dependent on filing of claim under Section 166 of the Act. Of course, where the claimant lodges a claim for structured compensation in terms of the formula contained in the Second Schedule in accordance with Section 163-A or on the basis of fault under Section 166 the amount of compensation payable or paid under Section 140 is to be deducted from the amount found payable under Section 163-A or 166 as the case may be. It is also clear that application under Section 140 of the Act has to be disposed of independently in accordance with the provisions of Chapter X of the Act which have an overriding effect.
8. Section 141(2) of the Act gives indication of the fact that 'no fault' compensation under Section 140 can be claimed also in a pending claim under Section 166, and where such application is made, it is required to be disposed of at the first place subject to the final adjudication as laid down in Sub-section (3) of Section 141. Such payment would be clearly interim in nature and that is why compensation under Section 140 is often called 'interim compensation' but it does not mean that where claim for compensation on the principle of 'fault' under Section 166 is not made, 'no fault' compensation cannot be claimed directly, through an independent application under Section 140 of the Act. Section 144 of the Act lays down that the provisions of Chapter, i.e., Chapter X containing Sections 140 to 144 shall have effect notwithstanding anything contained in any other provisions of the Act or of any other law for the time being in force. Section 168 proviso also lays down that where any application for compensation under Section 140 is made the claim shall be disposed of in accordance with the provisions of Chapter X. For disposal of regular claim petition a detailed procedure has been laid down in Section 169 of the Act.
9. The doubt, if any, is cleared by reference to the Bihar Motor Vehicles Rules, 1992. The provisions relating to Claims Tribunals are contained in Chapter X of the said Rules. While application for compensation under Section 166 is to be dealt with as per the provisions of Rules 226 to 245, Rule 226 lays down the procedure regarding compensation under Section 166. Rule 246 refers to application for compensation on the principle of no fault under Chapter X of the Act, i.e., Section 140. The provisions are materially different. What is significant is that Rule 246 contains a non obstante clause overriding, amongst others, the provisions of Rule 226. It may be useful to notice both of them at one place as under:
226. Procedure regarding compensation arising out of accident.-(1) An application for compensation under Sub-section (1) of Section 166 shall be made to the Claims Tribunal in Form Comp. A and shall contain the particulars specified in that form.
(2) Every such application shall be sent to the Tribunal or to the Chairman in case the Tribunal consists of more than one member, by registered post or may be presented to such member of the staff of the Tribunal as the Tribunal, or as the case may be, the Chairman may authorise for the purposes and if so sent/ presented, shall unless the Tribunal or Chairman otherwise direct, be made in duplicate and shall be signed by the applicant.
(3) There shall be appended to every such application a certificate which shall be signed by the applicant to the effect that the statement of facts contained in the application is to the best of his knowledge and belief, true.
(4) If the claim in the application does not exceed Rs. 10,000 then every such application shall be accompanied by all the documents and affidavits for the proof of those documents and of all facts on which the applicant relies in support of his claim, entered in a properly prepared list of documents and affidavits. The Claims Tribunal may not allow the applicant to rely in support of his claim on any documents or affidavits not filed along with the application, unless he satisfied the Claims Tribunal that for good or sufficient cause, he was prevented from filing such documents or affidavits, as the case may be, along with his application.
(5) There shall be appended to every such application, the following documents, namely-
(i) First information report in respect of the accident.
(ii) Medical certificate of injuries or post-mortem report, or death certificate, and
(iii) A certificate regarding ownership and insurance particulars of vehicles involved in the accident from the Regional Transport Officer or the Police Station, concerned.
246. Procedure regarding compensation on the principle of no fault.- Notwithstanding anything contained in Rules 226, 245 and 247 in the case of a claim for compensation under Chapter X of the Act, the procedures shall be as follows, namely-
(1) An application for compensation shall be made to the Claims Tribunal in Form CWF, in triplicate, and shall contain the particulars specified in that form.
(2) The application shall be accompanied by a fee of ten rupees in the form of court-fee stamps and the following documents, namely:
(i) First information report.
(ii) Injury certificate or post-mortem report in case of death.
(iii) Heirship certificate in case of death.
(iv) Certificate from the registering authority regarding ownership of the vehicles, involved in the accident.
(v) Particulars of insurance of the vehicle involved in the accident.
(3) No fees shall be charged for process of application for compensation made under this rule.
(4) The Claims Tribunal shall dispose of the application for compensation within six weeks from the date of receipt of such application.
(5) For the purpose of adjudicating and awarding the claim, the Claims Tribunal shall follow the procedure of summary trial as contained in Chapter XXI of the Code of Criminal Procedure, 1973.
(6) The Claims Tribunal shall not reject any application made under this rule on the ground of any technical defect, but shall give notice to the applicant and get the defect rectified.
(7) For the purpose of adjudicating and according the claim the Claims Tribunal shall obtain whatever information and document considered necessary by it from the police, medical and other authorities.
(8) On receipt of the application for compensation, the Claims Tribunal shall give notice to the owner, and the insurer, if any, of the vehicle involved in the accident, directing them to appear on a date not later than ten days from the date of issue of such notice, the date so fixed for such appearance shall also be not later than fifteen days from the receipt of the application for compensation. The Claims Tribunal shall state in such notice that, in case they fail to appear on such appointed date, the Tribunal shall proceed ex parte on the presumption that they have no contention to make against the award of compensation.
(9) The Claims Tribunal shall proceed with the application for compensation, on the basis of-
(i) First information report,
(ii) Injury certificate or post-mortem report in case of death,
(iii) Registration certificate of the motor vehicle involved in the accident,
(iv) Cover note, certificate of insurance or the policy, relating to the insurance of the vehicle against third party risks,
(v) The nature of the treatment given by the medical officer who has treated the victim.
(10) The Claims Tribunal, in passing the order, shall make an award of compensation of twenty-five thousand rupees in respect of the permanent disablement, to be paid by the owner or insurer of the vehicle involved in the accident.
(11) Where compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them.
(12) The Claims Tribunal, in passing the orders, shall also direct the owner or insurer of the vehicle involved in the accident, to pay the amount of compensation to the claimant within thirty days from the date of the said orders.
(13) Where the Claims Tribunal thinks that the actual payment to the claimant is likely to take time because of the identification and the fixation of the legal heirs of the deceased, the Claims Tribunal may call for the amount of compensation awarded, to be deposited with the Tribunal, and then proceed with the identification of the legal heirs for deciding the payment of compensation to each of the legal heirs.
10. It would thus appear that the rules also lay down different procedures for disposal of the application under Section 140, distinct from those relating to disposal of the claim under Section 166 in accordance with the provisions of Rules 226 to 245. The disposal of 'no fault' claim under Section 140 is rather summary. No application is to be rejected on any technical ground, nor detailed procedure meant for disposal of claim under Section 166 is required to be followed. The Tribunal has merely to see, on the basis of particulars before it that the claim is in respect of a motor accident, that the accident resulted in death or permanent disablement. Thus where the death or permanent disablement was the result of a motor accident, the Tribunal is required to grant fixed compensation on the principle of 'no fault' without any ado. It is unfortunate that in our country so much noise is made by the owners or the insurance company even for paying such compensation and, more often than not, the dispute is carried to the appellate courts.
11. In the instant case, in his petition filed before the learned single Judge the claimant stated that on account of his penurious condition he was not in a position to pay the ad valorem court-fee, which he thought was essential for filing claim under Section 166. It is relevant to mention here that Rule 227 of the Bihar Motor Vehicles Rules, 1992 lays down the scale of fee payable in the event of success of the petition. Though the claimant was not required to pay ad valorem fee, as stated in his petition, this much is clear that on account of his poverty he is not in a position to lodge regular claim case, which almost invariably is a long-drawn affair extending to several years.
12. While considering the provisions of Section 92-A of the Motor Vehicles Act, 1939, the Supreme Court in the case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), observed:
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 claiming any compensation for the death or permanent disablement caused on account of a motor accident. To that extent, the substantive law of the country stands modified.
13. The above aspects of the Act were not at all considered by the learned single Judge in the cases of Oriental Insurance Co. Ltd. v. Chulchul Devi 1999 (1) PLJR 747 and Divisional Manager, Oriental Insurance Co. Ltd. v. Gulzari Kuer 1999 (1) PLJR 872, in which by rather cryptic orders, the same learned Judge held that a direct application under Section 140 was not maintainable. The decisions, in my opinion, do not lay down the correct law and deserve to be overruled. In fact, earlier in the case of Oriental Insurance Co. Ltd. v. Mohiuddin Kureshi 1994 ACJ 74 (Patna), a Division Bench of this court had observed:
From a conjoint reading of the aforementioned provisions there cannot be any doubt that an application under Section 140 of the said Act can be filed separately.
Recently, another learned single Judge of this court in the case of Oriental Insurance Co. Ltd. v. Sarju Ram 2002 ACJ 177 (Patna), has taken a similar view regarding maintainability of an independent application under Section 140 of the Act which, in my opinion, is the correct legal position.
14. So far as the case of Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC), is concerned, the observation in para 19 of the judgment, pointedly referred to by the learned Counsel, instead of lending any help rather goes against him. In that case, the husband of the claimant suffered fatal injuries while walking on a road when a jeep capsized due to bursting of front tyre and crushing him. The rashness and negligence of the driver, understandably, was not established. The Tribunal thus dismissed the claim for compensation, but directed the insurance company to pay Rs. 50,000 under Section 140 of the Act. The decision was upheld by the High Court in appeal. The Supreme Court held that even apart from Section 140 of the Act, the victim in a motor accident is entitled to get compensation from the Tribunal unless any one of the exceptions laid down in the case of Rylands v. Fletcher (1861-73) All ER 1, is attracted and thus even in cases where the accident is not as a result of any wrongful act or negligence of the driver, on general principles laid down in the aforesaid case, compensation may be payable. It allowed compensation of Rs. 80,000 in accordance with the structured formula contained in the Second Schedule of the Act. In that contention the Supreme Court observed in para 19 that no fault liability envisaged in Section 140 of Motor Vehicles Act is distinguishable from the rule of strict liability laid down in the case of Rylands v. Fletcher. The said observation made in a different context, therefore is of little assistance for the purpose of the instant case and at any rate does not help the appellant.
15. In the above premises, I hold that an application under Section 140 of the Motor Vehicles Act on principle of 'no fault' compensation is maintainable without filing any claim under Section 166 of the Act.
16. The impugned order of the Claims Tribunal and the learned single Judge thus being in accordance with Section 140 of the Act I find no illegality as to warrant interference in letters patent jurisdiction.
17. In the result, the appeal is dismissed.
Chandramauli K. Prasad, J.
18. I agree.