IN THE HIGH COURT OFJ UDICATURE AT MADRAS
DATED: 27.7.2010
CORAM:
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
C.M.A.No.296 of 2007
Sadiq Basha .. Appellant
Vs.
1. A.Sivarasan
2. The Branch Manager,
New India Assurance Co. Ltd.,
Gobichettipalayam, Erode District. .. Respondents
Civil Miscellaneous Appeal against the order of dismissal and decree dated 4.7.2006 in M.C.O.P.No.57 of 2004 on the file of the Motor Accidents Claims Tribunal (Fast Track Court No.2, Additional District Judge), Gobichettipalayam.
For appellant : Mr.N.Manokaran
For respondent-2 : Mr.N.Vijayaraghavan
JUDGMENT
Aggrieved by the dismissal of the Claim Petition before the Tribunal filed by the claimant seeking for compensation of Rs.1,75,000/- under Sections 140 and 166 of the Motor Vehicles Act, for the injuries sustained by him, the claimant has come forward with this appeal.
2. The Tribunal rejected the claim petition in respect of the motor accident, wherein, the fault was attributed to the claimant himself. According to the appellant-claimant, while he was riding his two-wheeler TVS-50 bearing Registration No.TN-36-D-4869 on 26.10.2000 at about 4.50 p.m., another two wheeler TVS-50, bearing Registration No.TN-36-D-2556, coming in the opposite direction, dashed against the appellant’s vehicle and in the impact, the said person who was coming in the opposite direction, is stated to have died on the spot and the appellant-claimant was thrown away from the vehicle, as a result of which, he sustained grievous injuries, namely fracture on the right cheek and also on the occipital region of the brain. Hence, the appellant-claimant claimed a compensation of Rs.1,75,000/-.
3. The second respondent-Insurance Company contended that as a result of the accident, the driver of the vehicle in the opposite direction, namely TVS-50, bearing Registration No.TN-36-D-2556 died on the spot and as per Ex.P-1 FIR and the evidence of the claimant as PW1, it is very clear that the Police has registered a complaint against the appellant-claimant as a person who has driven the vehicle in a rash and negligent manner and that the accident took place due to the direct impact of both the vehicles. The investigation of the Police categorically stated that the vehicle impact has occurred only because of the rash and negligent driving of the appellant-claimant. Further, the claimant had also been convicted before the Criminal Court for the offence of rash and negligent driving and he has also paid the fine of Rs.3,300/- by accepting his liability to pay the same. Therefore, the Tribunal has come to the conclusion that in view of the fact that the appellant-claimant has himself has accepted the guilt and paid the fine amount, he cannot claim any compensation much less even the compensation under “no fault” liability, and hence, the Tribunal dismissed the Claim Petition.
4. The point for consideration in this appeal is as to whether the rejection of the Claim Petition of the appellant-claimant, is correct?
5. The whole case rests on the theory that the appellant-claimant who was driving the vehicle, was charge-sheeted before the Criminal Court and he has also paid the fine amount by accepting the guilt. Therefore, before the Tribunal, it was contended that the claimant having accepted his guilt and having also paid the fine amount, it is not open for him to claim compensation in respect of his own fault. It is quite clear that a person who has made the impact, would not be entitled to any compensation. But that would not prevent the appellant from claiming the compensation under “no fault” liability under Sections 140/142 of the Motor Vehicles Act, as the Government of India has categorically stated while framing the said Act that a person who was the injured in the accident, automatically is entitled to get the relief for the injuries sustained by him, under Sections 140/142 of the Motor Vehicles Act.
6. In this connection, it would be appropriate to refer the decision of the Supreme Court reported in 1996 ACJ 555 = 1996 (2) SCC 736 (K.Nandakumar Vs. M.D., Thanthai Periyar Transport Corporation Limited), wherein, the Supreme Court, while dealing with Section 92-A of the Old Motor Vehicles Act, 1939 = new Section 140 of the Motor Vehicles Act, 1988, held as follows:
“3. Section 92-A reads thus:
92-A. Liability to pay compensation in certain cases on the principle of no fault.–(1) 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 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 fifteen 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 seven thousand five hundred 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.
4. By reason of sub-section (1) of Section 92-A, an absolute liability is cast upon the owner of a vehicle to pay compensation in respect of death or permanent disablement resulting from an accident arising out of its use. By reason of sub-section (3), the claimant is not required to plead or establish that the death or disablement was due to a wrongful act or neglect or default of the owner or any other person. Sub-section (4) is in two parts. The first part states that a claim for compensation under the section is not defeated by reason of any wrongful act, neglect or default of the person who had died or suffered permanent disablement. The second part states that the quantum of compensation is not to be diminished even if the person who had died or suffered permanent disablement bore some responsibility for his death or disablement.
5. There was, therefore, on a plain reading of Section 92-A, particularly, the first part of sub-section (4) thereof, no basis for holding that a claim thereunder could be made only if the person who had died or suffered permanent disablement had not been negligent. The provision being clear, no external aid to its construction, such as the Statement of Objects and Reasons, was called for.
6. The judgment in the case of Ramanbhai Prabhatbhai, 1987 ACJ 561 (SC), dealt principally with the question whether the brother of a person who had died in a motor accident could claim compensation under Section 110-D of the Motor Vehicles Act, 1939. In para 9 of the judgment it was observed:
“… From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. Hit and run cases where the drivers of the motor vehicles who have caused the accidents are not known, are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault. In order to meet the above social demand on the recommendation of the Indian Law Commission, Chapter VII-A was introduced in the Act. Sections 92-A to 92-E of the Act are to be found in Chapter VII-A. Section 92-E of the Act provides that the provisions of Chapter VII-A shall have effect notwithstanding anything contained in any other provision of the Act or of any other law for the time being in force. Section 92-A of the Act provides 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 or disablement in accordance with the provisions of the said section.”
(emphasis added)
The words emphasised by the High Court are italicized. This passage does not interpret Section 92-A; the sentence in which the underlined words occur is a statement of a principle of social justice.
7. The decision in the case of Minu B.Mehta v. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC), was rendered before Section 92-A was introduced into the statute and is of no assistance in its interpretation.
8. The appellant is entitled to the benefit of the provisions of Section 92-A and to compensation in the sum of Rs.7500, as quantified therein for permanent disability.”
7. Thus, in the above decision, the Supreme Court dealt with Section 92-A of the Old Motor Vehicles Act, 1939 (new Section 140 of the Motor Vehicles Act, 1988) regarding claim of compensation under “no fault” liability, from which, it could be inferred that in the case of a person accepting the guilt and paying the fine, especially the owner for his own fault, it is true that he cannot claim any compensation, but that will not prohibit him from claiming compensation under “no fault” liability, because, the Motor Vehicles Act itself has empowered the claimant to get the compensation under Section 140/142 of the Act.
8. Following the principles enunciated by the Supreme Court in the said decision, it has to be held that the Tribunal is not correct in rejecting the Claim Petition of the appellant-claimant, and hence, “no fault” liability claim of Rs.25,000/- alone has to be now awarded to the appellant-claimant, as entitling him under Section 140(2) of the Motor Vehicles Act, 1988, taking into consideration the injuries sustained by him, namely vision problem, injuries on the right cheek, damage of teeth, inability to lift objects in the right hand, injury on the occipital region of brain, etc.
9. In the result, the appeal filed by the appellant-claimant is allowed, setting aside the impugned dismissal order and decree passed in the Claim Petition and now, the appellant-claimant is awarded a sum of Rs.25,000/- as compensation, as per Section 140(2) of the Motor Vehicles Act, 1988, under “no fault” liability, with interest @ 7.5% p.a. from the date of claim petition till the date of realisation. Since it is stated that the vehicle of the appellant-claimant is insured with the second respondent-Insurance Company, the second respondent-Insurance Company shall pay the said amount with interest, within a period of eight weeks from the date of receipt of a copy of this judgment and on such deposit being made, the appellant-claimant is entitled to withdraw the same in accordance with law. There are no costs in this appeal.
cs
To
1. The Motor Accidents Claims Tribunal
(Fast Track Court No.2, Additional District Judge), Gobichettipalayam.
2. The Record Keeper, V.R. Section, High Court,
Madras