Mahesh Kumar and ors. Vs. Munnalal and ors. - Court Judgment

S.C. Pandey, J.

1. This is an appeal against the order dated 25.9.1998 arising out of Claim Case No. 130 of 1997 whereby the Claims Tribunal, presided over by 12th Additional District Judge, Jabalpur, has granted an interim award of Rs. 25,000 under Section 140 of the Motor Vehicles Act for death of Rama Bai, aged about 30 years, to the appellants against respondent No. 1, Munnalal, driver of the truck, respondent No. 2 Capital Roadways and Finance Private Limited, Chhola Road, Bhopal and respondent No. 3, Oriental Insurance Co. Ltd., Napier Town, Jabalpur.

2. Disposal of this appeal shall also govern the disposal of Misc. Appeal No. 1647 of 1998, arising out of Claim Case No. 132 of 1997, Misc. Appeal No. 1648 of 1998, arising out of Claim Case No. 134 of 1997, Misc. Appeal No. 1654 of 1998, arising out of Claim Case No. 128 of 1997, Misc. Appeal No. 1655 of 1998, arising out of Claim Case No. 133 of 1997 and Misc. Appeal No. 1656 of 1998, arising out of Claim Case No. 144 of 1997, because the appellants in each case have been awarded a sum of Rs. 25,000 by way of interim award by a common order.

3. The claim of the appellants is that the Claims Tribunal should have awarded Rs. 50,000 either against respondent Nos. 1 to 4 jointly and severally or it should have apportioned Rs. 25,000 to the United India Insurance Co. Ltd., respondent No. 4, in this case, who was the insurer of the jeep bearing No. MP 28-B 0399.

4. In order to appreciate the controversy between the parties, it is necessary to give facts of the case in brief. On 27.6.1997 19 persons were travelling in the jeep in question, including the appellants. They were going from Jabalpur to Maihar. The jeep was registered vide No. MP 28-B 0399 and insured with respondent No. 4, United India Insurance Co. Ltd. It is alleged in the claim petition that the driver and owner of the jeep, late Ravi Shankar, had given side to the truck. But on account of negligent driving of truck No. MP 04-F 8281 by respondent No. 1 Munnalal, there was an accident. The truck dashed against the almost stationary jeep and caused death of six persons and injured another eight persons. The owner and driver Ravi Shankar also expired in the accident on 27.6.1997. The appellants further filed an application under Section 140 of the Motor Vehicles Act for interim award during the pendency of the claim petitions on the basis of no fault liability against all the respondents.

5. The Claims Tribunal, after giving an opportunity to the respondents to file reply, granted only Rs. 25,000 for each dead person to the claimants in each case by way of interim award against the respondent Nos. 1 and 3.

6. In this appeal, learned counsel for the appellants argued, relying on the case of National Insurance Co. Ltd. v. Thaglu Singh 1995 ACJ 248 (MP), that while passing an award under Section 140 of the Motor Vehicles Act, the defence of a party cannot be considered. The Division Bench of this court in the aforesaid case held that whenever an accident occurs, the claim of no fault liability under Section 140 of the Motor Vehicles Act should be decided without any reference to the defence taken by the insurance company and interim award should be passed. The Claims Tribunal is entitled to pass an appropriate order at the time of passing the final award and accordingly modify the interim award. The decision of the Division Bench is binding on this court and, therefore, this court is not entitled to consider the defence raised by any of the respondents.

7. The argument of the learned counsel for respondent No. 4 is that United India Insurance Co. Ltd., insurer of the jeep, cannot be held liable merely because it has been made a party to the claim case. In the claim case, there is no allegation for recovering any compensation on account of negligence of the driver of the jeep who himself expired due to the accident. It is stated in the claim petition, that the jeep was almost stationary and it was the driver of the truck, respondent No. 1 who was negligent in causing the accident. It is also contended by the learned counsel for respondent No. 4 that since the appellants have chosen not to make any claim against the driver and owner of the jeep in question, the court should assume that the appellants do not think that any compensation should be paid by the deceased driver and owner of the jeep, Ravi Shankar. Consequently, respondent No. 4 cannot be saddled with the liability on the ground of no fault liability under Section 140 of the Motor Vehicles Act.

8. Counsel for respondent Nos. 1, 2 and 3 advanced a common argument. It was argued that despite the fact that the appellants had not made any claim against Ravi Shankar, owner and driver of the jeep, it was apparent from the allegations made in claim petition itself that he was carrying 19 persons and was using the jeep for transporting the passengers. It was pointed out by the learned counsel for respondent Nos. 1 to 3 that the jeep was insured for the private use and, therefore, even though there is no assertion of any negligence on the part of the driver of the jeep, this court must take notice of this fact stated in the claim petition itself for coming to the conclusion that Ravi Shankar had violated and used the jeep contrary to law and that itself amounted to negligence in the eyes of law and, therefore, Ravi Shankar himself was liable for contributory negligence. It was urged that respondent No. 4 was added as a party specifically for this purpose because the deceased Ravi Shankar could not be made a party, as he himself had expired in the accident.

9. Learned counsel for respondent No. 4 has further countered the arguments made on behalf of the appellants as well as respondent Nos. 1 to 3 to the effect that United India Insurance Co. Ltd. could not be made liable for any claim unless the legal representatives of the deceased Ravi Shankar were brought on record as the persons liable to pay compensation.

10. Having heard learned counsel for parties, this court is of the opinion that the impugned order dated 25.9.1998 is liable to be modified, as it is contrary to law. The Claims Tribunal has gone beyond the scope of Section 140 of the Motor Vehicles Act read with Section 142 thereof for considering the liability of the parties. The Claims Tribunal should have looked into the substance of the claims of the appellants as alleged in the claim petition and should not have travelled beyond what was not claimed by the appellants. The simple claim of the appellants was that they were travelling in the jeep whose driver Ravi Shankar was not negligent while giving side to the truck. It was driver of the truck, respondent No. 1 Munnalal, who dashed the truck against the almost stationary jeep. It is neither here nor there to consider as to how many persons were travelling in the jeep. At this stage, the allegations made in the claim petition have to be taken as such without considering the probable defence of the respondent Nos. 1 to 4. Once it was alleged that the jeep was stationary, the question that the jeep was carrying 19 persons or that Ravi Shankar had violated any law by using the vehicle for transportation, for which there was no sanction, cannot be considered at this stage. It is obvious that there was some violation of law. It did not authorise respondent No. 1 to drive the truck negligently and dash it against almost stationary jeep and cause accident. Even if the F.I.R. is taken into account, it is clear that the F.I.R. also says that when the jeep was being driven slowly, the truck coming from the opposite direction dashed against it and the F.I.R. further says that it was the driver of the truck who was negligent, because he was driving the truck with great speed and without giving any horn. Therefore, the question of negligence was not before the Claims Tribunal. It was not admitted by the appellants that the driver of the jeep was negligent. However, this question should not detain us any more.

11. It is clear that the appellants are claiming that they are entitled to interim award on the ground of no fault liability. Section 140 of the Motor Vehicles Act, 1988, reads as under:

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 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, 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.

(5) Notwithstanding anything contained in Sub-section (2) regarding death of or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163-A.

It is clear from the language of Sub-section (1) of Section 140 of the Motor Vehicles Act that in a case of no fault liability, an owner or more than one owner of the vehicle involved in an accident is to be made liable jointly and severally for death or permanent disablement on account of an accident. Sub-section (3) of Section 140 of the Act makes it clear that the claimant shall not be required to plead and establish that death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned. It has also been made clear by Sub-section (4) of Section 140 of the Act that even if the claimant had done any wrongful act, neglect or had made any default, then also the claim for no fault liability shall not be defeated. It has been further made clear by Sub-section (4) that on the aforesaid ground, the quantum of compensation for death or permanent disability shall not be reduced on the basis of share of such person. It is thus clear from Section 140 of the Motor Vehicles Act, 1988 that no fault liability is statutory and does not depend upon any liability of negligence of the driver or the owner. It cannot be disputed that the legislature has plenary power to make a liability 'absolute' making departure from the common law rule that a person may be liable for his negligence in cases of accidents. Thus the liability in a case of motor accident has become absolute statutorily to the extent indicated in Section 140 of the Motor Vehicles Act, 1988 read with Section 142 thereof. This liability is akin to the common law liability in law of Torts known as the rule in the case of Rylands v. Fletcher (1868) LR 3 HL 330.

12. Therefore, it would be necessary to decide if the owners of both the vehicles are liable to pay compensation on account of collision between the two vehicles. The language of Sub-section (1) of Section 140 of the Act shows that both the owners of the vehicles involved in the accident can be made liable jointly and severally to pay compensation, either in respect of death or permanent disability. Once this fact is realised, the Claims Tribunal is entitled to know as to how many vehicles were involved in the accident. If there are two vehicles and two owners, then both the owners can be made liable on account of collision between the two vehicles. The words used in Sub-section (1) of Section 140 of the Act are 'an accident arising out of the use of motor vehicle or motor vehicles'. In this case, two motor vehicles are involved. Obviously, they were being used and, therefore, each of the owners of the vehicles is liable. As per Sub-section (3) of Section 140 of the Act, it is clear that it is not necessary to plead any default or negligence on the part of the driver of the vehicle or two owners of the vehicles to establish the claim under Section 140 of the Motor Vehicles Act. Thus in the opinion of this court, the language of Section 140 of the Act itself says that the liability would arise to both the owners of the vehicles involved in the accident and the claimant shall not be required to plead any negligence on the part of the owners or the drivers of the vehicles in question. The statutory liability is further made stringent by saying that at the time of giving the interim award, even the fault of the claimant cannot be considered. Parliament wanted that a victim of an accident in case of permanent disablement and dependent members of the family in case of death in a motor accident should be given immediate relief without establishing anything more except that a liability to pay compensation arose on account of a motor accident as per Section 140 of the Motor Vehicles Act, 1988 read with Section 142 thereof.

13. In view of this matter, both the owners should be made liable and not the respondent No. 2 alone with respondent Nos. 1 and 3.

14. Now the question that arises is that the appellants have made respondent No. 4 as a party to the claim case. Respondent No. 4 is the insurer of the jeep in question. It has been contended by learned counsel for respondent No. 4 that the appellants have not made the owner of the jeep as party to the claim case and, therefore, respondent No. 4 would not be liable, because the liability is joint and several as against the owner. But, in this case, the owner and driver of the jeep Ravi Shankar is dead and it has not been disputed by the learned counsel for respondent No. 4 that the appellants could not have made the owner as party to the claim case. It has, however, been argued that the persons who succeeded the owner, after his death by way of inheritance or succession, should have been made a party to claim case, because they were legal representatives of the deceased. In the present case, the appellants did not make the legal representatives of Ravi Shankar as parties to the claim case. Therefore, the respondent No. 4 alone is not liable as the owners of the jeep have not been made liable.

15. This argument of learned counsel for the respondent No. 4 cannot be accepted for the reasons mentioned in National Insurance Co. Ltd. v. Thaglu Singh 1995 ACJ 248 (MP). In this claim case itself it has not been mentioned by the appellants that Ravi Shankar had left behind any legal representatives. Therefore, respondent No. 4 cannot raise this argument by way of defence that respondent No. 4 is not liable. This argument can only be considered at the time of passing of the final award. That apart, this technical mistake can be corrected by the appellants during the course of trial. In these appeals, the appellants cannot deny their liabilities.

16. It has been contended by learned counsel for the respondent No. 4 that according to the allegations made in the application under Section 166 of the Motor Vehicles Act, 1988, which were to the effect that the jeep was stationary when the truck dashed against it, therefore, it was not in use within the meaning of Section 140 of the Motor Vehicles Act, 1988. This question has already been decided by the Supreme Court in the case of Shivaji Dayanu Patil v. Vatschala Uttam More 1991 ACJ 777 (SC). It has been said in that case that the words 'use of a motor vehicle' used in Section 92-A of the Motor Vehicles Act, 1939 should be given wider connotation and would cover an accident which occurs both when a vehicle is in motion or even when it is stationary. It was held that the use of vehicle does not cease as such when it has been rendered immobile on account of breakdown or mechanical defect or an accident. In the case before the Supreme Court, there was a collision between a truck and petrol tanker and the tanker turned turtle and after about 472 hours of the accident, the tanker exploded and caught fire causing injuries to and death of several persons. Even in such a case, it was held by the Supreme Court that the petrol tanker was in use even if it had turned turtle and was lying on the end of road for about 472 hours when it exploded. It was further held that the petrol tanker which was a motor vehicle when it collided with the truck, did not cease to be a motor vehicle after collision and the claimant was entitled to compensation. The case in hand, on the other hand, shows that the jeep was brought to almost standstill for giving way to truck. This case is much more stronger because the jeep in question was not rendered immobile but was stopped with the engine running to give way to the truck. The language of Section 140 of the Motor Vehicles Act, 1988 is similar to Section 92-A of the Motor Vehicles Act, 1939 and, therefore, there is no reason for taking another view of the matter. This argument of the learned counsel for respondent No. 4 is not acceptable.

17. The result of the aforesaid discussion is that the order passed by the Claims Tribunal in Claim Case No. 130 of 1997 from which this appeal arises, is hereby set aside and it is held that not only respondent Nos. 1 to 3, but respondent No. 4 shall also be liable to pay compensation jointly and severally to the extent of Rs. 50,000. Rest of the condition imposed by Claims Tribunal in para 12 regarding the deposit of the amount in case of minors in fixed deposit shall be the same. The appellants shall also be required to furnish security, as mentioned by the Claims Tribunal in para 12 of the interim award. However, looking to the facts and circumstances of the case, as the respondent No. 3 had already deposited Rs. 25,000, the rest of the amount can be apportioned against respondent No. 4 who shall deposit Rs. 25,000 within a period of two months from today. The award of the Claims Tribunal is modified accordingly.