Oriental Insurance Co. Ltd. Vs. MohiuddIn Kureshi Alias Md. Moya and ors. - Court Judgment

Excerpt:
(a) high court judges - use of red light on top of their cars--central motor vehicles rules, 1989, rules 108 and 108 proviso (iii)--constitution of india, article 217--prohibition contained in rule 108--regarding use of red light on top of motor vehicles--not applicable to high court judges--these judges are 'high dignitaries' because of their constitutional appointment, position and holding of high office of dignity and honour--there is no need of their specification as high dignitary as required by the third clause of proviso to rule (iii)--thus, high court judges are entitled to use red light on top of their vehicles. [red light on top of car--judges of high court--are entitled to use that light. - - provided further that the high court may entertain the appeal after the expiry of..... s.b. sinha, j.1. this appeal has been referred by a learned single judge of this court by order dated 20.8.1993 to a division bench, inter alia, for consideration of the following questions:(i) whether an appeal is maintainable against an order passed by the accidents claims tribunal under section 140 of the motor vehicles act, 1988;(ii) whether the tribunal can direct payment of interest while passing an order under section 140 of the motor vehicles act, 1988.2. in view of the pure questions of law involved in this appeal, it is not necessary to notice the fact of the matter in a great detail.3. it appears that respondent nos. 1 to 6 filed an application in terms of section 166 of the motor vehicles act before the judicial commissioner, ranchi, who has also been appointed as the motor.....

Judgment:

S.B. Sinha, J.

1. This appeal has been referred by a learned single Judge of this court by order dated 20.8.1993 to a Division Bench, inter alia, for consideration of the following questions:

(i) Whether an appeal is maintainable against an order passed by the Accidents Claims Tribunal under Section 140 of the Motor Vehicles Act, 1988;

(ii) Whether the Tribunal can direct payment of interest while passing an order under Section 140 of the Motor Vehicles Act, 1988.

2. In view of the pure questions of law involved in this appeal, it is not necessary to notice the fact of the matter in a great detail.

3. It appears that respondent Nos. 1 to 6 filed an application in terms of Section 166 of the Motor Vehicles Act before the Judicial Commissioner, Ranchi, who has also been appointed as the Motor Accidents Claims Tribunal. By reason of the impugned order dated 4.4.1991, the learned Judicial Commissioner has directed the appellant to pay a sum of Rs. 25,000/- by way of an ad interim compensation with an interest of 12 per cent per annum from the date of presentation of the petition within one month.

4. Mr. P.K. Bhowmik, learned counsel appearing on behalf of the appellant, has submitted that the direction to pay the compensation in terms of provisions of Section 140 of the aforesaid Act would also be deemed to be an award within the meaning of Section 173 thereof and thus an appeal would be maintainable. The learned counsel in support of his contention relied upon a Division Bench decision of the Kerala High Court in United India Insurance Co. Ltd. v. Padmavathy 1990 ACJ 751 (Kerala). The learned counsel further submitted that in any event the learned Motor Accidents Claims Tribunal has no jurisdiction to grant interest while passing an order of ad interim compensation. Learned counsel in support of his contention has relied upon Dhapa Kanwar v. Kishanlal 1992 ACJ 163 (Rajasthan).

5. Mr. N.N. Tiwary, learned counsel appealing on behalf of the respondents, on the other hand, submitted that from a plain reading of Section 140 of the said Act, it would appear that for the purpose of exercising jurisdiction in terms thereof, no adjudication about the rival contentions/ claims of the parties is required to be made, nor the parties can join the issues in relation thereto and as such an order passed thereunder cannot be said to be appealable. According to the learned counsel, an order passed under Section 140 of the Motor Vehicles Act cannot be held to be an award for the purpose of maintainability of an appeal in terms of Section 173 thereof. The learned counsel in support of his contention has relied upon a decision in the case of Gaya Prasad v. Suresh Kumar 1992 ACJ 200 (MP). It was further submitted that the Claims Tribunal has an inherent power to grant interest pendente lite. In support of the said contention, the learned counsel has relied upon a decision of the Bombay High Court in Prakash Chandumal Khatri v. Suresh Pahilajrai Makhija 1992 ACJ 369 (Bombay).

6. It appears that different High Courts have taken different views with regard to the maintainability of an appeal as also with regard to power of the Tribunal to grant interest. However, no decision of this court has been brought to our notice.

7. Section 140 of the Motor Vehicles Act which is in Chapter X of the said Act provides for liability to pay compensation on the principle of no fault. An owner of a vehicle thus would be liable to pay compensation in case death or permanent disablement to any person has resulted from an accident arising out of use of a motor vehicle or vehicles and the amount of such compensation in terms of Section 140(2) is fixed as Rs. 25,000/- in case of death and Rs. 12,000/- in case of permanent disablement.

Sub-section (3) of Section 140 postulates that the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which claim was 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.

8. The aforementioned provisions correspond to Section 92-A of the Motor Vehicles Act, 1939.

9. Section 141 of the said Act, however, provides that right to claim in terms of Section 140 shall be in addition to any other right under the provisions of the said Act or any other law for the time being in force.

Sub-sections (2) and (3) of Section 141 of the said Act read thus:

(2) A claim for compensation under Section 140 in 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 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and—

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.

10. Chapter XII of the said Act provides for constitution of Motor Accidents Claims Tribunal and the matter connected therewith.

Section 166 lays down the manner in which an application for compensation arising out of accident be made.

Proviso to Sub-section (2) of Section 166 postulates that where any compensation claim under Section 140 is made in such an application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

Sub-section (3) of Section 166 provides that such an application for compensation shall not be entertained unless it is made within six months of the date of the occurrence.

Section 168 of the said Act empowers the Tribunal to make an award giving notice to the insurer and after giving the parties an opportunity of being heard holding inquiry into the claim or, as the case may be, each of the claims and subject to the provisions of Section 162.

Section 171 of the said Act provides for grant of interest on compensation under the said Act by any Tribunal.

Section 173 reads as follows:

Appeals.—(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.

Section 174 provides that where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the manner as arrears of land revenue.

11. From a conjoint reading of the aforementioned provisions, there cannot be any doubt that an application under Section 140 of the said Act can be filed separately.

However, Section 166 of the said Act contemplates filing of a composite application, as is evident from the proviso appended to Sub-section (2) of Section 166 of the said Act;

12. It is true that while passing an order under Section 140 of the said Act, one is neither required to plead nor to establish any wrongful act, neglect or default on the part of the owner or owners of the vehicle or . vehicles concerned, nor such a claim shall be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement a claim has been made. In terms of Sub-section (4) of Section 140 even an amount fixed by the statute in terms of Sub-section (2) of Section 140 cannot be reduced even if any wrongful act, neglect or default of the person for whose death or permanent disablement (Sic.) his claim is proved.

13. There cannot be any doubt that an appeal is a creation of a statute. The said Act does not expressly provide for an appeal against an order under Section 140 of the said Act.

The only question which, therefore, arises for consideration is as to whether such an appeal would be maintainable under Section 173 thereof.

14. Section 173 provides for an appeal before the High Court against an award. It, therefore, has to be considered as to whether the order passed under Section 140 of the Act would be an award within the meaning of Section 168 of the said Act or not.

It is true that in view of the fact that the Parliament in its wisdom has directed payment of fixed sum as compensation but such a fixed sum shall be payable only if a case comes under Section 140(1) of the said Act.

15. It is now well-known that in terms of the provisions of the said Act, only the owner or the driver of a motor vehicle responsible for causing the accident is primarily liable for payment of compensation. The liability of the owner is, however, co-extensive with the liability of the insurer. If a vehicle is insured, the insurer must indemnify the owner to the extent of liability covered under the agreement of the insurance. It is true that in terms of the provisions of the said Act, a vehicle must be insured, but the extent of liability of the insurance company would depend upon the nature of the insurance agreement as also the agreement between the parties, whether general or special. The insurance policy may be comprehensive one or merely an Act insurance.

16. It is well-known that in the absence of any specific agreement undertaking any liability in excess of the statutory limit and payment of separate premium therefor, the insurer's liability will be found to that provided in the Act in respect of a third party risk; (b) to an Act only policy or comprehensive one; (c) insurance as reported in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC).

17. Section 140 of the said Act imposes statutory liability upon the owner; the said provision does not refer to the liability of the insurance company. Mr. Bhowmik, learned counsel, therefore, suggested that the appellant has no liability for payment of any amount to the deceased in terms of Section 140 of the said Act. The submission of Mr. Bhowmik cannot be accepted inasmuch as stated hereinbefore, the liability of the appellant is to indemnify the owner to the extent covered by the insurance policy and/ or statutory limit fixed under the said Act. Thus, in our opinion, the appellant would also be liable for payment of the sum to the extent of its liability subject to the conditions laid down under Section 141 of the Act. However, there cannot be any doubt that the insurance company cannot be saddled with liability higher than the liability covered under the insurance policy or the provisions of the said Act.

Thus even if a separate application is filed under Section 140 of the said Act, the insurer may be noticed and an order can be passed against it also. It, therefore, goes without saying that in such an event, it would be open to the insurance company to plead and prove that it has no liability to indemnify the owner or its liability is limited.

In United India Insurance Co. Ltd. v. Padmavathy 1990 ACJ 751 (Kerala), Division Bench of Kerala High Court held:

3. ...The section evidently recognises two types of claims. The corollary thereto is that there can be two types of awards. One is the claim for compensation for 'no fault liability' (under Section 140) and the other is the claim based on fault of the opposite side. The statute enjoins on the Claims Tribunal to dispose of both the claims independently, one first in time and the other next. This means, two awards may have to be passed by the Claims Tribunal in favour of one claimant in the same proceedings arising from one accident. Section 168 of the new Act deals with 'award' of the Claims Tribunal. Sub-section (1) mentions of disposal of the application made under Section 166 and its proviso deals with disposal of the application made under Section 140. Sub-section (2) says that the Claims Tribunal shall arrange to deliver copies of the award to the parties. Sub-section (3) says that 'when an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.' It is thus clear that a claim under Section 140 must also be disposed of through an award. Such an award can be passed only after the opposite party or parties concerned filed their written statements or objections or at least after affording a reasonable opportunity to them to file their written statements and after hearing them. The Claims Tribunal must be satisfied that conditions specified in Section 140 have been substantiated to make an award under the section. In this view, we have no doubt that the Claims Tribunal has to pass an award under Section 140. Hence, an appeal is maintainable under Section 173.

18. In United India Insurance Co. Ltd. v. Lakshmi 1991 ACJ 239 (Karnataka), a Division Bench of the Karnataka High Court held that the period of limitation of six months prescribed under Sub-section (3) of Section 110-A of the Motor Vehicles Act, 1939, applies to an application claiming compensation on 'no fault liability' under Section 92-A of the Act.

19. In that case, the Division Bench differed with the views expressed by the High Court of Bombay in Nazir Ahmed v. Kishan Nandlal Bhardia 1988 ACJ 1097 (Bombay).

It is, therefore, clear that the prayer for compensation on the ground of 'no fault liability' can be made along with an application for compensation under Section 166 of the said Act. It is thus clear that even for the purpose of filing an application under Section 140, the period of limitation provided for under Section 166 of the Act is applicable. Further, as noticed hereinbefore, the amount of compensation directed to be paid by a Claims Tribunal either under Section 140 of the Act or Section 168 thereof can only be realised by taking recourse to the provisions of Section 174 of the said Act. Therefore, in my opinion, it would lead to an anomalous position if it be held that although for the purpose of recovery of the amount directed to be paid as compensation in exercise of powers under Section 140 of the Act by the Tribunal, the order would be an award for the purpose of Section 174, but the same shall not be an award for the purpose of preferring an appeal as contemplated under Section 173 thereof. In this view of the matter, the order passed under Section 140 of the Act could also be for the purpose of preferring an appeal by an aggrieved person. Further in a case of this nature where two interpretations are possible with regard to the right of a person to prefer an appeal, a construction which upholds the said right, in my opinion, should be preferred. It is now well-known that an 'organic interpretation' should be preferred to a mechanical interpretation. This aspect of the matter has also been considered by a Full Bench of the Karnataka High Court in United India Ins. Co. Ltd. v. Immam Aminasab Nadaf 1990 ACJ 757 (Karnataka).

20. It is true that in Gaya Prasad v. Suresh Kumar 1992 ACJ 200 (MP), a Full Bench of the Madhya Pradesh High Court has held that an order passed under Section 140 is not an award and thus the said order could (Sic. not) be appealable one. In that case, the Full Bench has not taken into consideration the effect of Section 174 of the Act nor did it take into consideration the points noted hereinbefore. It is now well-known that a decision is not an authority for a proposition which has not been canvassed before it.

21. It is true that an award ordinarily contemplates an adjudication of a lis but we should also bear in mind that an award can also be passed by an administrative or quasi-judicial authority. Now, it is well-known by the various decisions of the Privy Council and also other courts that a Land Acquisition Officer is not a court nor a proceeding before him is a judicial one. Despite the fact that the Land Acquisition Officer is not a court and the proceedings before him are not judicial proceedings in strict sense of the term, he is entitled to prepare an award under the provisions of the Land Acquisition Act. Similarly, awards are passed by the Arbitrators who are not the courts.

22. It is true that while passing an order under Section 140 of the said Act, Claims Tribunal is not required to determine the quantum of compensation payable to the claimant, as the same has been fixed by reason of the provisions as contained in Sub-section (2) thereof. But even before such an order is passed, the court must satisfy itself with regard to the existence of the preconditions laid down under Sub-section (1) of Section 140 of the said Act. It while passing an order under Section 140 of the Act can also prima facie determine the liability of the insurer and the extent thereof.

23. Thus, if an objection is raised by an insurance company to the effect that the vehicle in question is not insured or that the insurance policy has lapsed, or the same has no application to the situation in which an accident allegedly occurred, the Tribunal would evidently be required to render a decision on that issue. As indicated hereinbefore, even the owner can raise a contention before the Claims Tribunal that the claim petition is baited by limitation and/or the accident as alleged has not taken place because of use of any motor vehicle or vehicles.

24. In this view of the matter, in my opinion, the order passed under Section 140 of the Act is also an 'award' within the meaning of Section 173 thereof and thus an appeal is maintainable.

25. However, the contention of the respondent is that as the appellant has not deposited the sum of Rs. 25,000/- or 50 per cent of the amount so awarded, whichever is less, in the manner directed by the High Court, the appeal is not maintainable. It is true that the appellant at the time of preferring the appeal has not complied with the requirements of the provisos appended to Sub-section (1) of Section 173 of the Act. But in this case, the appellant has handed over two cheques for a sum of Rs. 25,000/-to the learned counsel for the respondent which has been accepted without any demur. In this view of the matter, in our opinion, the requirement of the proviso appended to Sub-section (1) of Section 173 has substantially been complied with.

26. So far as the question of grant of interest is concerned, the matter is covered under Section 171 of the said Act, from a perusal of which it is evident that the decision of the Tribunal is not limited to grant of interest only at the time of passing of a final award, but it has also the jurisdiction to grant interest when it allows a claim for compensation made under Section 166 of the Act which evidently includes an order passed under Section 140 thereof.

27. In view of the express provision for award of interest contained in Section 171 of the said Act, I am of the considered view that the Claims Tribunal has the jurisdiction to grant interest. In this view of the matter, we agree with the views expressed by the Bombay High Court in the case of Prakash Chandumal Khatri v. Suresh Pahilajrai Makhija 1992 ACJ 369 (Bombay) and, with utmost respect, differ with the views of the Rajasthan High Court in Dhapa Kanwar v. Kishanlal 1992 ACJ 163 (Rajasthan).

28. So far as the merit of the case is concerned, Mr. Bhowmik has submitted that in terms of Section 140 of the said Act, only the insured is required to pay the amount in question, I do not find any substance in the said contention inasmuch as, as is well-known, the insurer is bound to indemnify the owner of the vehicle to the extent the same is covered by the policy of insurance.

29. It is also not the case of the appellant that the vehicle in question was not insured. In this view of the matter, in my opinion, the learned Tribunal cannot be said to have committed any illegality in passing the impugned award.

30. For the reasons aforementioned, this appeal is dismissed, but without any order as to costs.

Narayan Roy, J.

31. I agree.