Indian Kanoon - Search engine for Indian Law

7. Mr. P. V. Nanavati, the learned Advocate representing the appellant, contends that in this case no petition under Section 166 of the Motor Vehicles Act is filed, with the result the Insurance Company did not get the chance to challenge the claim or put forth its case which it desired. When the appellant is thus deprived of the valuable right this appeal on that count may be admitted and allowed. It is also the contention that the provisions regarding the compensation introduced in Motor Vehicles Act, 1988 envisage fault liability, namely tortious liability. The concept of non-tortious liability is foreign to the Motor Vehicles Act, 1988. The tortfeasor, Therefore cannot take the advantage of the provisions of the Motor Vehicles Act and claim compensation.

8. The Motor Vehicles Act, 1939, contained the provision for the award of compensation on the principle of fault only. In Smt. Manjushri Raha & Ors. v. B. L. Gupta & Ors. & B. L. Gupta v. Smt. Manjushri Raha & Ors., 1977 (2) SCC 174 and in several other decisions rendered subsequently, the Supreme Court emphasised much about the provision to provide compensation on no fault liability, because while dealing with several cases depicting hazards of vehicular accidents increasing alarmingly day by day and looking to the tragedy, plight, miseries and woes as well as helplessness of the victims, it found that the Act was lacking of necessary provision to help the victims, compelling the State to discharge its social obligation. As and when occasion arose, the Supreme Court went on reiterating the need for necessary change in the Act for providing compensation to the victims of motor accidents on the principle of no-fault also. The Law Commission of India also in its 85th Report recommended the introduction of the provision to award compensation on "no fault liability", the concept foreign to tortious liability. The Motor Vehicles Act of 1939 was then amended vide Motor Vehicles Amendment Act, 1982 incorporating Sees. 92-A to 92-E so as to provide for the first time payment of compensation on the principle of no fault. Later on the Motor Vehicles Act, 1939 which was amended in 1982 was repealed and the new Act came into force with effect from 14th October, 1988. In the new Act, Sees, 140 to 144 corresponding to Sees. 92-A to 92-E under the repealed Act were enacted. The Act also provided for the compensation resulting from an accident arising out of the use of the motor vehicle in three cases, namely, (1) hit and run motor accident (Section 161), (2) just compensation on the principle of fault liability (Sees. 166 to 168), and (3) compensation on the principle of no fault liability (Sees. 140 to 144). The Act was again amended by the Amendment Act LIV of 1994 and the amended provisions came into force from 14th November, 1994. Because of the amendment, Section 163-A and Section 163-B have been introduced in Chapter XI so as to provide for payment of compensation in motor accident case on a pre-determined formula given in the Second Schedule. Section 163-A is titled as "special provision as to payment of compensation on structured formula basis", while Section 140 of the Act is captioned as Liability to pay compensation in certain cases on me principle of "no fault liability". As per Section 163-B, the option is given to the claimant to file the application for compensation either under Section 140 or under Section 163-A. Under Section 140, the amount of compensation to be awarded is fixed, i.e., Rs. 50,000/- in case of death, and Rs. 25,000/- in case of permanent disablement, whereas under Section 163-A the compensation has to be awarded as per the structured formula in Second Schedule.

9. The historical background leading the Parliament to enact the provision of Section 163-A is, referring several decisions of the Supreme Court and commentaries of different learned authors on the books on Tort, stated by this Court in the case of R. V. Chudasma v. H. V. Kodala, 1999 (1) GLH 278 : 1999 (1) GLR 631. We, therefore, do not restate the same. Suffice it to say at this stage that the Government, because of the direction given and hope expressed by the Supreme Court and recommendation made by the Law Commission found that compensation on the ground of fault liability was not effectively assuaging the miseries, distress and woes being suffered by several victims of the motor accident as several victims had to retreat or feel dejected by losing the legal battle; and by passage of time when the concept of social obligation of the State to help the subject in case of need or exigencies in life developed which was also the voice echoed by the Supreme Court in several decisions referred to in the above-referred case, the Parliament thought it fit to introduce necessary provision. With the result, Section 163-A came to be introduced expanding the frontiers of the liability and making the room for the principle of no-fault liability. It contemplates the principle of no-fault liability making the owner, driver and insurer of the vehicle or vehicles involved in the accident liable to pay the compensation on pre-determined formula nevertheless fault-liability, and non-obstante clause by which Section 163-A begins indicates that regardless of other provisions in the Act about fault liability compensation to the victim shall be paid on the principle of no-fault. Section 163-A is therefore the provision based on no fault liability and not on tortious liability for the aforesaid object. In short, by introduction of Section 163-A, the ambit of liability under the Act is expanded covering non-tortious liability also.

12. In the case cited, this Court has considering the provisions of Sees. 95, 96 and 97 of the then Motor Vehicles Act, 1939, held that the claimant being a tortfeasor cannot claim compensation for the tortious act committed by him. In other words, it is held that if the claimant is found negligent he cannot come forward and say pay me the compensation for my own negligence. Such principle is beyond the purview of the Act. But this decision cannot be pressed into the services of the appellant because it is rendered qua the old provision. Section 163-A, the new provision about no fault liability, came to be introduced from 14-11-1994. When the decision was rendered by this Court on 14th October, 1985, Section 163-A introducing the concept of no-fault liability was absent, and the principle to claim compensation on no-fault liability was foreign to the then Act in force. The decision rendered keeping old law in mind is, therefore, not applicable. Section 163-A has brought drastic change in the concept of tortious liability prevailing prior to it. It by non-obstante clause permits even the tortfeasor to claim compensation on the principle of no-fault liability which otherwise he is (if employee and has done wrong in the discharge of his duty) entitled to under Workmen's Compensation Act, 1923; or under the contract of insurance. The contention therefore fails. The Insurance Company who is the appellant can challenge the claim only on the ground of no-contract at all i.e., no insurance, or on the above-stated grounds. It may be stated that it is not the case of the appellant that the vehicle in question was not insured with it or that the insurance was not in force at the time of accident.