Smt. Vimala S. & Others v. Chikkahanumanthaiah

3. 1987 ACJ 561 Gujarat State Transport Corporation v. Ramanbai Prabhat Bai (do) 6 4. 1988 ACJ 270 National Insurance Company Ltd. v. Jugal Kishore (do) 8 5. AIR 1991 SC 1769 (1991 ACJ 377) Shivaji Dayanu Patil v. Vatschal Uttam More (do) 8 6. 1992 ACJ 1095 K. Nandakumar v. M.D Thanthai Periyar Transport Corporation Ltd. (do) 9 7. 1996 ACJ 555 K. Nandakumar Tantai Periyar transport Co. Ltd. (do) 9 8. ILR 1995 Kar 2364 National Insurance Company v. Tarabai (do) 13 9. 1995 ACJ 600 United India Insurance Co. Ltd. v. Yatnoori Yadagiri Goud (do) 14

Sri A.K Bhat Advocate for Appellants

Sri P.B Raju Advocate for R-2

JUDGMENT

A.M Farooq, J.:—

The appellants are aggrieved by the order dated 27.9.1995 in M.V.C No. 3086/92 on the file of the MAC T X Bangalore rejecting their petition filed under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act for short).

2. The appellants are the widow and children of the deceased G. Narasimha Murthy, who died on 3.6.1992 due to the injuries he suffered in a scooter accident. According to the appellants the deceased Krishnamurthy was driving the scooter on 2.6.1992 at about 12-20 noon through M E S Road and at that time a monkey suddenly crossed the road and in order to avoid hitting the monkey, he applied sudden brake and losing control of the vehicle he fell down and sustained serious injuries resulting in his death on the next day at NIMHANS Bangalore. That the deceased drove the scooter on the instructions of its owner the I respondent, who entrusted him with some work. That the scooter was insured with the II Respondent insurance Company. The appellants claimed a compensation of Rs. 25,000/- under the no fault liability provision Section 140 of the Act.

3. The first respondent owner of the vehicle remained ex parte and only the second respondent Insurance Company filed objections and contested the petition mainly on the ground that the deceased suffered fatal injuries due to his own negligence and Section 140 does not apply to such a situation and the petitioner was, therefore, not maintainable. The M.A.C.T after hearing the parties, has dismissed the petition on the ground that the deceased died due to his own fault and under such circumstances the petitioners who are the L.Rs of the deceased are not entitled to any compensation under, no fault liability basis.

4. Sri A.K Bhat, the learned Counsel appearing for the appellants contended that the claims Tribunal was wrong in dismissing the petition filed by the claimant under Section 140 of the Act. It is submitted by the learned Counsel relying upon Sections 140 to 144, 165 and 168 of the Act and also certain reported judgments of the Hon'ble. Supreme Court and high Courts that when there is no dispute hat the deceased in this case died due to the accident arising out of the use of a motor vehicle, the appellants as the legal representatives of the deceased is entitled to the fixed amount of Rs. 50000/- under the no fault liability Section 140 of the Act and it is not necessary for the claimants to prove negligence on the part of any other person. On the other hand Sri P.B Raju, the learned Counsel appearing for the respondent Insurance Company countering the arguments of the appellant submitted that the principles of law of tort is that no man can take advantage of his own wrong and the decease who himself was negligent in driving, the vehicle which resulted in the fatal accident is not entitled to claim even under Section 140 of the Act. It is contended that when the deceased himself was the driver and no other vehicle is involved, the claim petition under Section 140 of the Act is not even maintainable.

5. The claims Tribunal has quoted the head note purported to be taken from the decision reported in 1990 ACJ 373 to hold that the claimant who is solely responsible for the accident cannot claim compensation on no-fault liability basis. I have gone through the said decision of the Division Bench of the Kerala High Court. No where I find that the Kerala High Court has held that the claimant who himself is negligent cannot maintain a claim petition. On the other hand, the Kerala High Court has held even when a regular claim petition under Section 110-A of 1939 Act is rejected compensation under no fault liability could be awarded without a formal application for the same by the claimants. In National Insurance Company Ltd. v. Tarabai . ILR 1995 KAR 2364. this Court has held repelling the contention raised by the Insurance Company to the effect that an award cannot be made under Section 140 of the Act when the Claims Tribunal has found that the claimant is not entitled for compensation under Section 166 of the Act, Because of the accident being taken place due to the negligence of the claimant himself. That though the claimant may not be entitled to compensation on the basis of tort, there was no bar for the Tribunal to consider whether the claimant would be entitled to compensation under Section 140 of the Act and the entitlement of compensation under Section 140 cannot be defeated merely because the claimant had claimed compensation even on the ground of fault on the part of the owner of the vehicle or other person.

6. It is contended by the learned Counsel appearing for the respondent No. 2 that the view expressed by this Court in the above judgment is not a good law in view of the Full Court judgment of this Court reported in United India Insurance Company v. Imam Aminsab Nadar . ILR 1990 KAR 16.. He has also relied upon certain extracts from ‘What next in law’ by Lord Denning and certain extracts from ‘Selection of Legal Maxims’ 10th edition by Herbert Broom. Lord Denning in the above book at page 130 which is about where question of no fault liability is considered by Lord Parson and the members of the Royal Commission and one of the most radical proposals was that there should be liability in motar-car cases even though the plaintiff could not prove the defendant to be at fault. That even if the defendant was not in any way at fault, the injured party should be compensated for any injuries he received and there should be a compensation fund established out of which all injured parties would be compensated. Ultimately the Royal Commission came down in favour of the State providing its own compensation fund. The following the quotation from the said book.

“This fund would, however, not be available for a man who was driving alone and was killed or injured himself when no other vehicle or pedestrian was concerned. In any such case any fault would be his alone. The scheme would be a no-fault liability scheme and not a no fault insurance scheme. The driver would be in the same position as if he injured himself at home with his lawn-mower or garden tractor. His only recourse would be to seek such social security benefits as might be available to him”

In “legal Maxims” at page 191, the following quotation is relied upon.

“It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong, and this maxim, which is based on elementary principles, is fully recognised in Courts of law and equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases; and in the first place, we may observe that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law.”

At page 358 and 359 of the same book, it is observed that laws ought to be, and are framed with a view to apply to cases which frequently occur rather than to a case of rare accidental occurrance and that laws cannot be so worded as to include every case which may arise but it is sufficient if they apply to those things which most frequently happen and if the acts are interpreted in certain way which is advanced during an argument of a case and if it is accepted in a certain contingency that meaning might work a result of which no body would approve. Further it is observed the law is to be construed according to its plain words and it can be varied in every case because there is a chance of the law being operative with great severity, and against our own notions of justice and as such it should be varied in that particular case so as to obviate injustice. The learned Counsel for the appellants also took me through the provisions of Section 141 to 163 of the Act to contend that Section 140 is inserted in the act to grant compensation to a claimant who himself is responsible for the accident. It is further contended that only the third party can claim compensation. The Supreme Court in Gujarat State Transport Corporation v. Ramanbai Prabhat Bai . 1987 ACJ 561. while considering Section 92-A of the old Act has held that part of the Act which deals with the no-fault liability 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 before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident and to that extent the substantive law of the country stands modified. What is embodied in Section 140 is a modern measure of social justice in Order to sustain a channalized socio economic life of the people who approached the Tribunal for compensation without pleading and proof and access to justice is thus guaranteed to the dependent of victims of motor accidents which are rapidly increasing in present days society. Therefore, logical reasoning countenanced by the learned Counsel appearing for the insurance company cannot be applied to the said provision.

7. In this case, the facts in short are that the deceased drew a motor vehicle belonging to the first respondent and insured with the second respondent and met with a fatal accident. The question is whether the legal representatives of the deceased are entitled to claim compensation under Section 140 of the Act. A Full Bench of this Court in Aminsab Nadaf's case supra, has while considering Section 92-A and other provisions of the 1939 Act has held as under:

13. A careful analysis of the above provisions would show the following aspects.

(1) Section 92-A of the Act creates a No Fault Liability to a limited extent viz., payment of a sum of Rs. 15,000/- to the legal representatives of a person dying in an accident and to the extent of Rs. 7,500/- to a person who has suffered permanent disablement as a result of a motor accident.

(2) The amount of Rs. 15,000/- as compensation fixed in the case of death and Rs. 7,500/- in the case of the permanent disablement is an irreducible and an independent compensation payable by the owner of the vehicle.

(3) This no fault liability payable under Section 92-A of the act is independent of the liability to pay compensation in a claim petition under Section 110-A of the Act on the basis of fault to wit on a finding that the accident occurred as a result of the rash and negligent driving of the vehicle. Therefore a claim under Section 92-A of the Act can be made through an independent petition or by incorporating a separate statement in this behalf in an application filed under Section 110-A of the Act based on the principle off fault indicated kin the proviso to Section 110-A(2) of the Act.

(4) Whether the compensation under Section 92-A of the Act is claimed by an independent petition or by making a separate statement in an application made under Section 110-A of the Act based on the principle of fault that claim has to be disposed of as expeditiously as possible in the first place, as expressly provided in Section 92-B(2) of the Act.

(5) No part of the amount awarded under Section 92-A of the Act is refundable, even if ultimately the claim petition presented under Section 110-A of the Act were to be dismissed on the ground that the accident occurred only due to the negligence of the deceased person or the person who had suffered permanent disablement or on a finding that the accident occurred as a result of contributory negligence by the deceased person or the person who had suffered permanent disablement, as the case may be

(6) If on adjudication of an application under Section 110-A of the Act, compensation higher than what is awarded under Section 92-A of the Act were to be awarded, then the amount already awarded under Section 92-A of the act has to be deducted out of the amount payable under the award.

(7) For the purpose of fixing the liability of the owner of the vehicle, to pay compensation amount specified in Section 92-A of the Act, the only fact to be proved is that the death or permanent disablement was caused, as a result of an accident by the vehicle, of which the person concerned is the owner.

(8) Though the liability under Section 92-A of the Act is fixed only on the owner of the vehicle and there is no reference to Insurance Company in view of Section 93(b-a) of the Act the Insurance Company is liable to pay the compensation, awarded under Section 92-A of the Act.

(9) Sub-section (5) of Section 95 mandates that an insurer shall be liable to indemnify the insured person/persons specified in the policy but only in respect of any liability which the policy purports to cover.

(10) There is no provision which deprives the right of defence of the Insurance Company on any of the grounds specified in Section 96(2) of the Act, at the time of fixing the liability to pay compensation under Section 92-A of the Act.

This Court has ultimately held that no award directing payment of compensation under no fault liability can be made against the insurer without a summary enquiry and finding that prima facie the risk giving rise to the claim is covered by the policy of the Insurance. No where in this decision any question arose about the claimants proving that the deceased was not responsible for the accident.

8. The Hon'ble Supreme Court in National Insurance Company Ltd. v. Jugal Kishore . 1988 ACJ 270. was considering the question as regards the defence that could be taken by the Insurance Company and the need of the Insurance Company to file a copy of the insurance policy alongwith its defence. In Shivaji Dayanu Patil v. Vatschal Uttam More . AIR 1991 SC 1769 1991 ACJ 377., the Hon'ble Supreme Court was considering the question whether a fallen tanker which caused the explosion 4 to 5 hours after it fell down in a motor accident, was in use at the time of the explosion as contemplated under Section 92-A of the 1939 Act and the Hon'ble Supreme Court held that it was in use. While interpreting Section 92-A of the 1939 Act, this is what the Supreme Court has observed in para 12.

12. It is thus evident that Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation 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. The same approach has been adopted by this court while construing the provisions of the Act.

9. A division Bench of the Madras High Court in K. Nandakumar v. M.D, Thanthai Periyar Transport Corporation Ltd. . 1992 ACJ 1095. has held while considering the question of no fault liability that when the claimant was solely responsible for the accident, he cannot claim compensation on no fault liability. Perhaps in the case on hand the Tribunal might have relied upon the Madras High Court judgment to reject the petition. However, the above Madras High Court judgment has been reversed by the Hon'ble Supreme Court in K. Nandakumar v. Tantai Periyar Transport Co. Ltd. . 1996 ACJ 555.. In para 4 & 5 of the said judgment, this is what the Hon'ble Supreme Court has held:

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.

10. After considering the relevant principles laid down by the Hon'ble Supreme Court in the above cited decisions, the expression caused by and arising out of the use of motor vehicle though imply a causal relationship between the accident resulting in injury and the use of the motor vehicle, they differ in the degree of proximity of such relationship. The Hon'bie Supreme Court has quoted the following paragraph from the decision of the High Court of Australia.

“Bearing in mind the general purpose of the Act, I think the expression arising out of must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words ‘caused by’. It may be that an association of the injury with the use of the vehicle while it cannot be said that use was casually related to the injury may yet be enough to satisfy the expression arise out of as used in the Act and in the policy.”

“The words ‘injury caused by or arising out of the use of the vehicle’ postulate a casual relationship between the use of the vehicle and injury. ‘Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate but it still carries a sense of consequence.”

The Hon'ble Supreme Court has held that the words in Section 140 would imply that the accident should be connected with use of the motor vehicle, but the said connection need not be direct and immediate and the said construction is in consonance with the beneficial object underlying the enactment. The Hon'ble Supreme Court in Shivaji Dayanu Pail's case supra has also held that the object underlying the enactment of the no fault liability provision is to make available to the claimant the fixed compensation provided under the provision as expeditiously as possible and award under the Section has to be made before adjudication of the claim under the regular section seeking compensation. It further held that the object of the section would be defeated if the claims Tribunal is required to hold a regular trial in the same manner as for adjudicating a regular claim under the Act. What is necessary for the Tribunal is to satisfy before making an award under Section 140 that the accident has arisen out of the use of a motor vehicle and that the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose legal representatives are making the claim and the claim is made against the owner and the insurer of the motor vehicle involved in the accident.

11. Section 140 is a beneficial provision inserted into the Motor Vehicles Act. The said provision is made considering the rise in the number of motor accidents taking place in the country and the difficulty of the claimants in proving the negligence on the part of others and for granting compensation for permanent disability or death caused in an accident by the use of the motor vehicle. The argument of the learned Counsel for the insurance company that the claimants cannot take advantage of their own wrong cannot be accepted in view of the specific wordings of Section 14 of the Act. The Hon'ble Supreme Court in Nandakumar's case has clearly held that such an argument cannot be accepted and the Supreme Court reversed such a view taken by the Madras High Court.

12. A separate chapter that is, Chapter-X of the Act contains Sections 142 to 144 which provides for liability without fault in certain cases. Sub-section (3) of Section 140 in clear terms provides that the claimant shall not be required to plead and establish that the death or the permanent disablement on which the claim is made was due to any wrongful act, neglect or default of the owner of any other vehicle or vehicles and sub-section (4) provides that a claim for compensation under Section 140 shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death, the claim has been made. Section 144 provides that the provisions of Chapter-X shall have effect notwithstanding anything contained in any other provisions of the Act or of any other law for the time being in force. Therefore, in my view, it is not at all necessary for the claimant either to establish negligence on the part of the owner or driver of any other vehicle to claim compensation for death or permanent disability. If it is prima facie shown that the death or permanent disability was caused due to the use of a motor vehicle which belonged to another person, it is sufficient to claim compensation under Section 140 of the Act.

13. The facts of this case are similar to the facts of the case decided by my brother Justice Venkataraman, in National Insurance Company v. Tarabai . ILR 1995 KAR 2364.. In the said case, the deceased had taken the scooter belonging to another person and while riding the scooter it has skidded resulting in the deceased sustaining fatal injuries. This Court held that the materials on record clearly disclose that the son of the claimant met with an accident arising out of the use of a motor vehicle and that he died as a result of the injuries sustained in the motor accident and therefore, the claimant is entitled for compensation under the no fault clause Section 140 of the Act. In the present case, the deceased Narasimhamurthy, husband of the first appellant and father of the other appellants was driving the vehicle belonging to the first respondent when all of a sudden a monkey crossed his way and on applying of sudden brake, the deceased lost control over the vehicle and fell down sustaining fatal injuries. Even on the admitted facts, it cannot be said that the deceased was negligent in driving the vehicle. The vehicle belong to the first respondent of which the second respondent is the insured. It was never argued before me that the insurance policy pertaining to the vehicle in question did not cover the said risk. As held by the Hon'ble Supreme Court in Shivaji Dayanu Patil's case, the claimant has given the required information in the petition filed under Section 140. It is not disputed that the accident has arisen out of the use of a motor vehicle and the said accident has resulted in the death of the person, whose legal representatives are making claim and the claim is made against the owner and the insurer of the motor vehicle involved in the accident.

14. The learned Counsel for the appellant has further relied upon the judgment reported in United India Insurance Co. Ltd. v. Yatnoori Yadagiri Goud . 1995 ACJ 600. where the learned Judge of the Andhra Pradesh High Court held that the driver who was the brother of the owner of the vehicle died as a result of the injuries sustained because of the dashing of a double bullock cart against his vehicle, was not entitled to claim compensation in view of the fact that the brother of the owner is not a third party. With respect, I cannot agree with the said decision of the Andhra Pradesh High Court which in my view is contrary to the judgment of the Hon'ble Supreme Court in Nandakumar's case. As already stated I am in respectful agreement with the decision of my brother Justice Venkataraman, in Tarabai's case supra. His Lordship has interpreted Section 140 in the spirit in which the same has been enacted and it has to be interpreted as such to ensure that the protection given by the provision is not nullified by the backward looking interpretation canvassed by the learned Counsel for the insurance Company which will only serve to defeat the provision rather than to fulfill its aim and such an interpretation will nullify the benevolent provision by reading it with a non benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of, by way of an exercise in interpretation. Even if two views are possible, the view which renders the provision plausible is to be accepted and when the option is between opting for a view, the view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity there is hardly any choice.

15. After considering the various principles laid down by the Hon'ble Supreme Court and other High Courts in the judgments referred to above, I am of the view that no regular trial, in the same manner as for adjudicating a claim petition under Section 116 of the Act, is not required while considering the question of granting compensation under Section 140 of the Act. Under the Section the claims tribunal is required to satisfy itself that the accident has arisen out of the use of a motor vehicle; that the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose legal representatives are making the claim; and the claim is made against the owner and insurer of the motor vehicle involved in the accident. These information shall have to be furnished by the claimants in their claim petition. In Karnataka a claim petition under Section 140 of the Act is filed in the same prescribed form as under Section 166 of the Act and all the required information shall have to be given by the claimants in their petition. In the event of the claims Tribunal feeling doubtful about the correctness of the information or if it considers it necessary to obtain further information or other materials, it can always call for the same from the concerned authorities or the claimants and the claim petition shall have to be disposed of expeditiously.

16. In the present case, the claim petition prima facie show that the accident has arisen out of the use of a motor vehicle and the accident has resulted in the death of the deceased Sri G. Narasimha Murthy; the claim is made by his legal representatives and the claim is made against the owner and the insurer of the motor vehicle involved in the accident. There is no dispute that the vehicle in question belonged to the first respondent and it is admitted that the second respondent is the insurer. Thus all the required information are on record and these information satisfy the requirements of Section 140 of the Act and the claim petitions entitled to be allowed. The claims tribunal was clearly in error in rejecting the petition.

17. In the result and for the above reasons, this appeal is allowed and the impugned order is set aside. The claim petition made by the appellants before the claims Tribunal is allowed and there shall be an award for Rs. 25,000/- with interest at 9% p.a, from the date of the claim till the date of realisation, in favour of the appellants. The appellants shall also be entitled for costs through out.