Kerala High Court
New India Assurance Co. Ltd. vs Leela And Ors. on 13 October, 1995
Equivalent citations: 2(1997)ACC429
Author: B.N. Patnaik
Bench: B.N. Patnaik
JUDGMENT K.K. Usha, J.
1. Challenge in this appeal at the instance of New India Assurance Co. Ltd. is against the interim award passed by the Motor Accident Claims Tribunal. Pathanamthitta in O.P. (MV) No. 235 of 1994 granting an amount of Rs. 25,000/-to respondent Nos. 1 to 5 Under Section 140 of the Motor Vehicles Act as compensation for the death of the husband of respondent No. 1r father of respondent Nos. 2 to 4 and son of respondent No. 5.
2. Certain facts are admitted in this case. An accident happened on 9.1.1994 out of the use of a motor vehicle which resulted in the death of one Ramchandaran Pillai, husband of respondent No. 1, father of respondent Nos. 2 to 4 and son of respondent No. 5. It is also admitted that a claim has been put forward by respondent Nos. 1 to 5 against the owner of the vehicle impleaded as respondent No. land the Insurance Company impleaded as respondent No. 2. It is contended by the appellant that no interim award Under Section 140 can be granted in this case as, according to the appellant, the accident happened due to the negligence on the part of late Ramachandran Pillai who was driving the vehicle at the time of the accident. It was also contended that late Ramachandran Pillai was real owner of the vehicle and, therefore, the claim petition itself is not maintainable.
3. We will first consider the second objection to the interim award, viz., late Ramachandran Pillai himself was the owner of the vehicle. Admittedly, in the registration certificate respondent No. 1 before the Tribunal is shown as owner of the vehicle. It is also the case of the Insurance Company that the insurance policy is in the name of the respondent No. 1. Except a reference made by the brother-in-law of late Ramachandran Pillai in the first information statement given before the police that two days before the accident Ramachandran Pillai had acquired ownership over the vehicle, there is no material on the basis of which the appellant could contend before the Tribunal that the respondent No. 1 was not the owner of the vehicle at the time of the accident. The respondent No. 1 had not put forward such a contention before the Tribunal. Therefore, we are inclined to take the view that the Tribunal has correctly concluded on the basis of the materials available before it at the time of passing an interim award Under Section 140 that respondent No. 1 before the Tribunal was the owner of the vehicle.
4. Elaborating the first objection the learned Counsel appearing on behalf of the appellant submitted that if late Ramachandra Pillai was the wrong-doer in the sense that the accident happened due to his negligence, there is no principle of law which would support a claim put forward by his legal heirs for compensation on his death as a result of the accident. He contended that even the liability cast Under Section 140 of the Motor Vehicles Act, 1988, will not ensure to the benefit of the wrong-doer or legal heirs of the wrong-doer. According to the learned Counsel provisions under the section are to be understood in the light of the statement of objects and reasons of the amending Act 47 of 1982, which introduced Section 92-A under the old Act, which reads as follows:
Having regard to the nature of circumstances in which road accidents take place, in a number of cases it is difficult to secure adequate evidence to prove negligence. Further, in, what are known as 'hit-and-run' accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions, first, for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solarium in cases in which the identity of the vehicle causing an accident is unknown.
In support of the above contention the learned Counsel relied on a Division Bench decision of the Madras High Court in K. Nandakumar v. Managing Director, Thanthai Periyar Trans. Corpn. Ltd. . In the above case there was a collision between a bus and motor cycle due to the negligence on the part of the motor-cyclist and he sustained injuries. The Court took the view that a person can make a claim for compensation against another only when the other person is at fault and not when he alone is at fault. May be in view of certain circumstances, he is unable to prove the fault on the part of another person from whom he claims compensation. Only in such a case Section 92-A of the Act steps in and says that despite the abovesaid fact of inability to prove the negligence of the other party, he will be entitled to a particular minimum compensation. While arriving at the above conclusion the learned Judges of the Madras High Court dissented from a judgment of this Court in K.P. AH v. M. Madhavan , awarding compensation Under Section 92-A to legal heirs of the deceased victim who was found solely responsible for the accident and there was no negligence on the part of the other party.
5. Reliance was also placed by the appellant on another decision of the Madras High Court in New India Assurance Co. Ltd. v. Meenal . The view taken in the above decision is that when the death of driver of a car which met with an accident due to his own negligence and when no wrong or tort committed by the owner of the car has been pleaded or proved by the claimants the Insurance Company cannot be made liable. But on going through the above judgment we do not find that it was a case coming Under Section 92-A of the old Act or Section 140 of the present Act. Kunjuraman Nair v. Mamging Director, Nesamony Transport Corpn. Ltd. , is another decision of the Madras High Court relied on by the appellant. In the above case when the claimant attempted to board a moving bus he fell down and hit an electric post. It was found that he sustained injuries due to his own negligence. His claim for compensation under the principle of 'no fault liability' was rejected following the decision in K. Nandakumar v. Managing Director, Thanthai Periyar Trans. Corpn. Ltd. 1992 ACJ 1Q95 : I (1992) ACC 615 (Madras).
6. Lastly, the learned Counsel referred to a decision of this Court in Thomas v. Mathew , in order to substantiate his contention. Relying on the following sentence "Hence in our view when the law declared that owners of both vehicles shall jointly and severally' be liable, what is envisaged is the liability to third persons and not between themselves" the learned Counsel contended that no-fault claim can be put forward Under Section 140 only by a third party and not by the legal heirs of the driver of the vehicle who dies in an accident which happened due to his negligence. In the above case there is a collision between two vehicles. After trial it was found on evidence that the collision happened due to the negligence on the part of the person who was riding the scooter, one of the vehicles involved in the collision, and it was the very same person who put forward the claim Under Section 140. A Division Bench of this Court held that Under Section 140(1) when more than one vehicle are involved in the accident owners of both vehicles are 'jointly and severally' liable to pay compensation in respect of the accident under the 'no fault' principle. Joint and several liability which does not telescope into each other and that such liability is by and large to third parties and not against each other. The Division Bench observed that "the legislature has never contemplated the contingency where claimant himself is one of the persons liable to meet the claim."
7. It was contended on behalf of respondent-claimant Nos. 1 to 5 that when an application is considered Under Section 140 an enquiry into the question whether the claimant was negligent or not is not contemplated. In support of the above contention the learned Counsel appearing on behalf of respondent Nos. 1 to 5 relied on a decision of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More . Reliance was also placed on a decision of the Madhya Pradesh High Court in Dwarika v. Biso . He contended that the decision in Thomas v. Mathew , has no application to the facts of the present case, where the liability was to be shared jointly and severally between two owners and one owner had put forward a claim. It was also a case where after evidence adduced the Court came to the conclusion that the claimant was guilty of negligence.
8. Section 140 of the Motor Vehicles Act, 1988, reads as follows:
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 twenty-five 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 twelve 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 a 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.
By a mere reading of the section it can be seen that an enquiry into the question as to who was responsible for the accident or on whose negligence the accident happened is not contemplated at all. The Supreme Court had occasion to consider in detail the scope of the inquiry contemplated Under Section 92-A of the Motor Vehicles Act (4 of 1939) which contained provisions similar to Section 140 of 1988 Act. After referring to the provisions contained Under Section 92-A and the relevant rules issued by the Maharashtra Government as amended the Supreme Court observed as follows:
The object underlying the enactment of Section 92-A is to make available to the claimant compensation amount to the extent of Rs. 15,000/- in case of death and Rs. 7,500/- in case of permanent disablement as expeditiously as possible and the said award has to be made before adjudication of the claim Under Section 110-A of the Act. This would be apparent from the provisions of Section 92-B of the Act. Section 92-B(2) of the Act provides that a claim for compensation Under Section 92-A hi 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'92-A and also in pursuance of any right on the principle of fault, the claim for compensation Under Section 92-A shall be disposed of as aforesaid in the first place. With a view to give effect to the said directive contained in Section 92-B of the Act, the Maharashtra Government has amended the Rules and has inserted special provisions in respect of claims Under Section 92-A in Rules 291-A, 291-B, 297(2), 306-A, 306-B, 306-C and 306-D of the Rules. The object underlying the said provisions is to enable expeditious disposal of a claim petition Under Section 92-A of the Act. The said object would be defeated if the Claims Tribunal is required to hold a regular trial in the same manner as for adjudicating a claim petition Under Section 110-A of the Act. Moreover, for awarding compensation Under Section 92-A of the Act, the Claims Tribunal is required to satisfy itself in respect of the following matters:
(i) an accident has arisen out of the use of a motor vehicle;
(ii) the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose legal representative is making the claim;
(iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident.
9. Under Rule 291-A which was inserted in the Maharashtra Rules after the enactment of Section 92-A, it was provided as follows:
Notwithstanding anything contained in Rule 291, every application for a claim Under Section 92-A shall be filed before the Claims Tribunal in the triplicate and shall be signed by the appellant and the following documents be appended to every such application, namely,
(i) Panchnama of the accident; (ii) First information report;
(iii) Injury certificate or in case of death post-mortem report or death certificate; and
(iv) A certificate regarding ownership and insurance particulars of the vehicle involved in the accident from the Regional Transport Officer or the police.
Old Rule 297 was substituted by adding necessary provisions as follows:
(2) Where the applicant makes a claim for compensation Under Section 92-A, the Claims Tribunal shall give notice to the owner and 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 claims application filed by the claimant. The Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date the Tribunal will proceed ex-parte on the presumption that they have no contention to make against the award of compensation.
Rule 306-A empowers a Claims Tribunal to obtain whatever supplementary information and documents which may be found necessary from the police, medical and other authorities and proceed to award the claim. The Supreme Court took the view that documents referred to in Rules 291-A and 306-B would enable the Claims Tribunal to ascertain the necessary facts for granting award Under Section 92-A. Panchnama and first information report will show whether accident had arisen out of the use of the motor vehicle in question. The injury certificate or ' the post-mortem report will show the nature of injuries and cause of death. Registration certificate and insurance certificate of the motor vehicle will indicate who were the owner and insurer of the vehicle. In the event the Claims Tribunal doubts the genuineness of these documents or if it considers necessary to obtain supplementary information and document, Rule 306-A empowers the Claims Tribunal to obtain supplementary information or document from the police, medical or other authorities. Therefore, the Supreme Court held that in view of the special provisions the Claims Tribunal is not required to follow the normal procedure prescribed under the Act and Rules with regard to the adjudication of a claim Under Section 110-A of the Act for the purpose of making an order on a claim petition Under Section 92-A.
10. Rule 393 of the Kerala Motor Vehicles Rules, 1989, contains more or less identical provisions as Maharashtra Rules. It reads as follows:
Award of claims Under Section 140. -- The claims Tribuna) shall proceed to award the claims Under Section 140 of the Act on the basis of the following:
(1) Registration certificate of the motor vehicle involved in the accident;
(2) Insurance certificate or policy relating to the insurance of the vehicle against third party risks;
(3) Copy of the first information report;
(4) Post-mortem certificate or certificate of injury from the medical officer; and (5) The nature of treatment given by the medical officer, who has examined the victim.
The above would show that neither the section nor the Rules contemplate fixation of negligence on any person while granting no fault claim in a motor vehicle accident. With great respect to the learned Judges of the Madras High Court it has to be said that their Lordships have not considered the scope of enquiry in a no-fault claim Under Section 92-A as explained by the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More .
11. In Neeli v. Padmanabha Pillai , a Full Bench of this Court had occasion to consider the nature of the liability Under Section 92-A of the Motor Vehicles Act, 1939 this Court observed as follows:
(18)...The authors emphasise that 'no fault liability' is outside the tort system. Therefore, it has nothing to do with causing or not causing harm, nor with fault or no fault and is not akin to a theory of absolute liability such as the one in Rylands v. Fletcher (1868) LR 3 HL 330, within the tort system. It is a new liability created by statute and upon such creation, gives rise to a corresponding right to the victim or his legal representatives to claim the amounts covered by Section 92-A. (20)...Section 92-A(3) does not refer to dispensing with pleading and proof of negligence in a claim within the tort system. It refers to a claim Under Section 92-A(1) which is a creature of statute and outside the tort system and it is there, in the new system, that one need not plead or prove negligence, etc. (21) Again, Section 92-A(3) does not deal with mode of proof of a fact within the pre-existing tort system. It does not say that negligence which requires to be proved in that system shall be presumed if certain other facts are proved. As stated above, Section 92-A(3) explains how the claim in regard to the new liability created Under Section 92-A(1) could be imposed. Hence Section 92-A(3) does not deal with any matter relating to mode of proof of negligence within the tort system.
12. In coming to the above conclusion this Court relied on the decision of the Supreme Court in Gujarat State Road Trans. Corpn. v. Ramanbhai Praphatbhai 1987 ACJ 561 (SC). The above decision also would clearly show that 'no fault liability' Under Section 140 being one created by the statute outside the law of Torts, there is no necessity to enter into an enquiry as to who was the wrong-doer. In Dwarika v. Biso , Madhya Pradesh High Court has also taken the view that the scope of enquiry Under Section 92-A is very much limited. It was held that at that stage the Tribunal was not bound to inquire into or record a finding as to sustainability or otherwise of the objections raised by the Insurance Company that it was not liable at all. If the factum of the accident itself was denied then it may be open to the Tribunal to hold a summary enquiry to form an opinion whether the accident did take place and whether the vehicle in question was involved in the accident or not. If from the evidence collected in such summary enquiry and other material available on record, the Tribunal is prima facie satisfied that the accident did take place and the vehicle in question was involved therein, it was held that the Tribunal shall have jurisdiction to make an interim award Under Section 92-A fixing joint and several liability on the insurer alongwith the insured. After trying claim on merits while expressing a final opinion and passing an award Under Section 110-B of the Act, the Tribunal would not be bound by the opinion recorded earlier at the time of making the interim award Under Section 92-A. Even though the above decision of the Madhya Pradesh High Court was rendered earlier, the dictum laid down therein is the same which we get from Shivaji Dayanu Patil v. Vatschala Uttam More .
13. Now we will examine the decision of this Court in Thomas v. Mathew, (supra), on which substantial reliance was placed by the appellant. From the narration of the facts in the above case it is seen that interim award Under Section 140 was granted in the above case after a full trial on the basis of which the Tribunal entered a finding that the accident happened due to the negligence of the owner/driver of one of the vehicles involved in the accident and who himself is a claimant. The Division Bench, therefore, considered the question of joint and several liability between the claimant who was the owner/driver of one of the vehicles alongwith the driver and owner of the second vehicle involved in the accident. The Division Bench had no occasion to consider the question of the scope of enquiry to be made by the Tribunal at the stage of granting an award Under Section 140 as was considered by the Supreme Court. Therefore, we have to understand the decision of the Division Bench in the facts of that case. It cannot be taken that the Division Bench has laid down a dictum that even at the time of granting an award Under Section 140 an enquiry into the question as to whether there was negligence on the part of the claimant was to be made in view of the clear exposition of law by the Apex Court in Shivaji Dayanu Patil v. Vatschala Uttam More, (supra).
14. In the light of the above discussion we are inclined to take the view that there is no merit in the contentions raised by the appellant Insurance Company against the interim award by the Tribunal Under Section 140. Appeal, therefore, fails and it stands dismissed.