Madhya Pradesh High Court
Saurabh Kumar Shukla vs Hukum Chand And Ors. on 29 September, 1997
Equivalent citations: 1998ACJ523, AIR1998MP144, 1998(2)MPLJ353, AIR 1998 MADHYA PRADESH 144, (1998) 1 JAB LJ 189, (1998) 2 MPLJ 353, (1998) 2 TAC 491, (1998) 1 ACJ 523, (1999) 1 CIVLJ 94
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S.K. Dubey, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') arises out of an order passed on 6th December, 1994, in Claim Case No. 71/92, by the Motor Accidents Claims Tribunal, Hoshangabad, whereby the application under Section 140 of the Act, for grant of quantified fixed amount under Section 140 of the Act for the fracture of Right 4th and 5th metacarpals received by the appellant in accident by the use of truck No. MP 04-F/8405 was dismissed holding that appellant has not suffered permanent disability as defined in Section 142 of the Act.
2. The appeal came up for hearing before R. P. Awasthy, J. who did not concur with the view taken by D.M. Dharmadhikari, J. in Mahendra Prasad Mishra v. Mohammad Sabbir, 1994 Acc CJ 942, that fracture of bones in a motor accident can be called "privation of any member or joint". Awasthi, J. was of the opinion that the words "privation of any member or joint" appearing in Clause (a) of Section 142 means loss of any member or joint, therefore, referred the case before the Hon'ble the Chief Justice to constitute a bench of two Judges for deciding the following question :
"Whether fracture of a bone simplicitor (without there being any permanent impairment or weakness of body on account of it), would amount to a permanent disability within the meaning of the definition of "permanent disability" given in Section 142 of the Motor Vehicles Act, 1988 ?"
3. Section 140 of Chapter X of the Act corresponding provisions in Sections 92-A to 92-E of Chapter VII-A of the repealed Motor Vehicles Act, 1939 (for short 'Act of 1939') deal with liability without fault in certain cases. The underlying idea behind Section 140 of the Act corresponding provision in Section 92-A in Act of 1939 is that where the 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 an amount of Rs. 50,000.00 and in respect of permanent disablement a fixed sum of Rs. 25,000 by way of immediate relief without proof of negligence in an application filed for compensation under Section 166 of the Act. Section 144 of the Act, corresponding provision. Section 92-E in Act of 1939, provides that the provisions contained in Chapter X of the Act corresponding Chapter VII-A of Act 1939, shall have overriding effect, notwithstanding anything contained in any other provision of the Act or of any other law for the time being in force. Chapter X of the Act is a clear 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. See Gujarat State Road Transport Corporation v. Raman Bhai Prabhat Bhai, AIR 1987 SC 1690: K. Nandkumar v. Managing Director, Thonthal Periyar Transport Corporation, (1996) 2 SCC 736 : (AIR 1996 SC 1217).
4. The Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More, AIR 1991 SC 1769 enunciated the principle of law that no fault provision as is propounded in Section 92 -A of Act of 1939, corresponding to Section 140 of the Act, is in the nature as of a measure of social justice a beneficial legislation enacted with a view to confer the benefit of expeditious statutory payment of fixed amount by way pf compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. The underlying object of the provision 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 Act of 1939 corresponding Section 166 of the Act, but before ordering compensation under this provision the Tribunal has to satisfy itself that the requirements of the section are satisfied.
5. The provision contained in Section 140 of the Act is a beneficial legislation. Therefore, the approach of the Courts is to adopt a construction which advances the beneficient purpose underlying the enactment in preference to a construction which tends to defeat that purpose. However, Where a benefit is not intended by clear provision, it cannot be granted by applying the rule of interpretation of beneficial legislation.
6. Therefore, keeping in mind the background and the object for which the law was enacted for payment of quick statutory fixed amount under Section 140 in case of death or for the injuries suffered in motor accident resulting in permanent disablement it would be proper to refer Sections 140 and 142 of the Act which we quote :
"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 twenty-five 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, neglector default of the owner or owners of the vehicle or vehicles concerned 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."
"142. Permanent disablement.-- For the purposes of this Chapter, permanent disablement of a person shall be deemed to nave resulted from an accident of the nature referred to in Sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving :--
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head of face."
7. In case of injury received in motor accident if it results in permanent disablement of a person as defined in Section 142 of the Act corresponding to Section 92-C of the Act of 1939, such person would be entitled to quick relief of Section 140 of the Act on satisfaction of requirements of Section 140 of the Act. The question is 'whether fracture of a bone simpliciter (without there being any permanent impairment or weakness of body on account of it) would amount to permanent disability.
8. D.M. Dharmadhikari, J. in Mahendra Prasad Mishra's case (1994 Acc CJ 942) (supra) while considering a case of fracture of femure, tibia and fibula bones construed the meaning of 'privation' as found in Shorter Oxford English Dictionary, observed that where victim suffers fractures, he is deprived, of a portion of his body or joint till he recovers in his health, he is deprived of the enjoyment of that joint or member of the body. Thus, the contention advanced that it is only such fractures which cannot be repaired are covered by the expression "permanent disablement" under Section 142 of the Act was not accepted.
9. T.S. Doabia, J. in case of Suresh Babu Nath v. Hargovind Batham, 1995 Acc CJ 654 : (AIR 1995 Madh Pra 82) while considering a case of fracture of right tibia for grant of immediate relief under Section 92-A of the Act of 1939 on the evidence of doctor who stated that there is no abnormality in the gait of the claimant and his movements are normal has observed that the claimant has not received permanent disability as defined in Section 92-C of Act of 1939.
10. N.P. Singh, J. in Raj Kishore v. Shri Ram Agarwal, 1996 Acc CJ 1351 while considering a case of hair line fracture in the left side of the head for grant of immediate relief under Section 140 of the Act observed that such hair line fracture does not amount to permanent disablement and, therefore, injured is not entitled to interim award under no fault liability.
11. Before a relief is granted the Tribunal has to prima facie satisfy whether injury suffered by a victim of motor accident has resulted in permanent disablement. The word permanent has been used as adjective to disability. The dictionary meaning in the sense is lasting or meant to last indefinitely."
12. The expression 'disability' is defined by Webster's New International Dictionary, English Language, Part I, of 1890 and 1900 Edition, at page 632, thus :
"Disability" 1. State of being disabled :
deprivation or want of ability; absence of competent physical, intellectual, or moral power, means, fitness, or the like; an instance of such want or deprivation."
13. The Randum House Dictionary of the English Language, the Unabridged Edition, deals with 'disability' at page 408 thus :
"Disability" 1. lack of competent, power; strength, or physical or mental ability; incapability.
2. a permanent physical flaw, weakness, or handicap, which prevents one from living a fail, normal life or from performing any specific job.
3. the state or condition of being disabled."
14. When a bone breaks, a fracture is said to occur. Fractures are breaches in structure of bones produced by Violence. There are various varieties or forms of fractures. Black's Medical Dictionary Edited by C.W.N. Havard, 36th Edn. deals with fractures from page 283. Varieties are: simple fracture, compound or open fractures, complete fractures, incomplete fractures, fissured fractures, depressed fractures, complicated fractures, comminuted fractures, impacted fractures, ununited fractures, malunited fractures. The reference relates to simple fracture. Simple fractures form the commonest variety, consisting of those in which the bone is broken, with or without much laceration of the surrounding parts, but, in which there is no wound leading from the fracture through the skin. (See Black's Medical Dictionary (Supra) at page 283).
15. The fractures resulting from automobile accident just like other fractures necessarily require some forces to break the bone. In automobile accident some rashness and negligence is often the background of multiple fractures and crush injuries. So all these fractures are considered all the more seriously. On civil side, a fracture, involving a joint invariably leads to compulsory privation of the joint for a variable period which is a factor to be considered in assessing the compensation for the period. The disability and assessment varies from fracture to fracture. It also depends on the site of fracture and age of the patient. The disability is mainly determined by defect in locomotion, gait or postural detect. This mainly depends on the joints involved as well as the period of immobilisation. (See Medical Jurisprudence, Fourth Edition, by V.B. Raju, pages 349, 359 and 360).
16. "Permanent Disability" is not a purely medical condition. A patient is 'permanently disabled' if under a permanent disability when his actual or presumed ability to engage in gainful activity is reduced or absent because of 'impairment' and no fundamental or marked change in the future can be expected. Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or less after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made. Thus, permanent disability applies to permanent damage or to loss of use of some pan of the body after the stage of maximum improvement from orthopaedic or other medical treatment has been reached and the condition is stationary.
17. When a Court considers a prayer for grant of relief under Section 140 of the Act of an injury resulted in fracture of bones simpliciter, it has certainly to record a prima facie finding whether such fracture or privation of a member or joint has resulted in permanent disablement or not. If the Court is prima facie satisfied on the material produced by the claimant that the fracture of bone has resulted in any permanent disablement, i.e., permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint certainly the compensation under Section 140 of the Act will be granted. But from prima facie satisfaction if simple fracture docs not show any permanent dissability as defined in Section 142 the claimant would not be entitled to the relief. In such a case he would be entitled to relief on proving the disability at the final adjudication. To award compensation under Section 140 of the Act, the resultant effect of the fracture should be permanent disablement which is the sine qua non for award of compensation. If the injury is simple fracture only without anything more as contemplated in Section 142 of the Act, person receiving such injury would not be entitled to compensation under Section 140 of the Act. 18. Before parting with the reference we may say that grant of relief will depend on the facts and circumstances of each case, nature and form of the fracture and its resultant effect. No hard and fast rule can be laid down. If the requirements of Section 140 arc prima facie satisfied certainly the Court would grant the relief under Section 140 of the Act.
19. Accordingly, the reference is answered. Let the records be placed before the appropriate Bench to decide the appeal on merits since learned referring Judge has demitted the office.