PAYALBEN JAYESHBHAI YAGNIK v. JAYESHBHAI G YAGNIK

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 {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."

3.6(cid:9)Chapter X which provides liability without fault in certain cases and Section 140 of the Act which provides liability to pay compensation in certain cases on the principle of no fault liability. It may be noted that this Section correspondence to Section 92A of the Motor Vehicles Act, 1939. The object of this Section is benevolent legislation for giving speedy remedy to the claimant on account of death in an accident.

3.7(cid:9)The learned advocate for the appellant has also relied upon the judgment of the Hon'ble Apex Court in the case of K.Nandakumar vs. Managing Director, Thanthai Periyar Transport Corporation Ltd. reported in 1996 ACJ 555 particularly para 4 and 5 which reads as under: "Para.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. "Para.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."

3.7(A)(cid:9)Thereafter the Hon'ble Supreme Court has allowed the appeal and held that the appellant is entitled to compensation under Sec.92-A of the Act.

3.8(cid:9)He has also relied upon the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co.Ltd vs. Hansrajbhai V.Kodala and others reported in (2001) 5 SCC 175 where the Hon'ble Supreme Court has considered Sec.163-A of the ACt. While construing Sec.163-A of the Act, the Hon'ble Apex Court in para 16 has observed like this: "para 16 The aforesaid conclusion gets support from the language used in Sections 140, 141, 161 and 163-A. Sections 140 to 143 provide for liability of the owner of the vehicle in case of death or permanent disablement of any person resulting from an accident arising out of use of a motor vehicle or motor vehicles, to pay compensation without any pleading or establishing that death or permanent disablement was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles."

3.9(cid:9)Learned advocate for the appellant has also stated that thereafter the Hon'ble Apex Court has observed in relation to Sec.163-A of the Act and that observation may also apply in this case because the purpose of legislation is to give quick relief in this behalf.

3.10(cid:9)Learned advocate for the appellant has also relied upon the judgment of this Court in the case of New India Assurance Co.Ltd. vs. Mithakhan Dinakhan Notiyar and others reported in 1995(2) G.L.R. 1111. He has relied upon para 6 of the judgment which reads as under: "para 6. Section 140 provides that 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 the said section. the amount of compensation which is payable thereunder in respect of death of any person is a fixed sum of Rs.25,000/- (Rupees twenty-five thousand) and the amount of compensation payable in respect of the permanent disablement of any person is a fixed sum of Rs.12,000/- (Rupees twelve thousand). Sub-sec.(3) of Sec.140 provides that in any claim for compensation under sub-sec.(1) of Sec.140, 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. It is, thus, that to a limited extent relief has been granted under Sec.140 of the Act to the victim who has suffered permanent disablement. Such victim can claim Rs.12,000/- without proof of any negligence on the part of the owner of the vehicle or of any other person. This part of the Act is clearly a departure from 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 permanent disablement caused on account of a motor vehicle accident. To that extent substantive law of the Country stands modified. There is no manner of doubt that Sec.140 of the Act is beneficial and social welfare piece of legislation. It is well settled that in construing social welfare legislation, the Courts should adopt a beneficial rule of construction and in any event, that construction should be preferred which fulfils the policy of legislation. The construction to be adopted on a statute should be such so as to achieve the purpose for which it is enacted and in favour of those in whose interest the Act has been passed. The liability under this section is made indefeasible, peremptory and total. It has been put beyond dispute that insurer is clearly liable under Sec.140 of the Act in view of the provisions contained in Secs. 145 & 147 of the Act.

3.11(cid:9)Thereafter in para 7 the learned Judge has referred Rule 230 of the Gujarat Motor Vehicles Rules 1989 and after referring to that the Court has held as under: "... While making an order under Sec.140 of the Act, the Tribunal is not required to follow the procedure contained in Rules 211 to 230 and 232 of the Gujarat Motor Vehicles Rules, 1989. Where compensation is claimed in respect of death of permanent disablement under Sec.140 and also in pursuance of any right on the principle of fault, the claim for compensation under Sec.140 of the Act is required to be disposed of in the first place in view of sub-sec (2) of Sec.140 of the Act. For awarding compensation under Sec.140 of the Act, the Claims Tribunal is required to satisfy itself in respect of the following matters:- (cid:9) (i) an accident has arisen out of the use of a motor vehicle; (cid:9) (ii) the said accident has resulted in permanent disablement of the person who is making the claim or death of the person whose legal representative is making the claim; (cid:9) (iii) the claim is made against the owner and the insurer of the motor vehicle involved in the accident."

3.12(cid:9)Learned advocate for the appellant has also relied upon another judgment of this Court in the case of Anitaben wd/o. Nalinkumar Manubhai Shah and others vs. Abdul Hakim Allarkhan Shaikh and others reported in 1995(1) G.L.R. 479 in support of the aforesaid conclusion also.

3.13(cid:9)Learned advocate has also invited my attention to the complaint filed by Payalben, panchnama, medical certificate issued by Dr.Shantilal Patel and others in this behalf.

4.(cid:9)Ms.Megha Jani, learned advocate for the respondents has tried to support the judgment of the tribunal in this behalf.

4.1(cid:9)Learned advocate for the respondent has cited the judgment of the Division Bench of this Court in the case of United India Insurance Co.Ltd. vs. Jagatsinh Valsinh and others reported in 1986(2) GLR 1423 particularly para 7 which reads as under: "para.7 The claimant is held to be a tort-feasor. It is beyond comprehension as to how a tort-feasor can be awarded compensation for the tortious act committed by him. If the claimant sustained injuries and suffered disablement as a result of such injuries he has to blame himself for it was his own negligence which caused these injuries. If the claimant was negligent, he cannot come forward and say, "pay me compensation for my own negligence." CONCLUSION:-

5.(cid:9)I have considered the judgment of the Hon'ble Supreme Court in the case of K.Nandakumar (supra), Oriental Insurance Co. vs. Hansrajbhai V.Kodala (supra), judgment of this Court in the case of New India Assurance Co.Ltd Vs. Mithakhan Dinakhan Notiyar (supra) and another judgment of this Court in the case of Anitaben wd/o. Nalinkumar Manubhai Shah and others Vs. Abdul Hakim (supra) in this behalf and also considered Sec.140 of the Act.

5.1(cid:9)The provisions of Sec.92-A of the Motor Vehicles Act, 1939 become alive and generate sufficient power to enable jurisdiction to be exercised thereunder to help the hapless and helpless. Relief, according to the contemplation of the Legislature, is to be provided to the widows and orphans quickly and instantly to pre-empt and prevent their destitution and vagrancy and that object of the Legislature can be fulfilled only if the order under Sec.140 is passed imaginatively to ensure the relief to reach quickly, effectively and positively to be destituted.

5.2(cid:9)It is settled principle of law that the standard for adjudging the guilt of the accused in criminal law is beyond reasonable doubt. In civil cases, the Court can take into consideration for adjudging any issue that evidence is sufficient on mere preponderance of probabilities. The legislature has provided different standard. Section 140 of the Act on the principle of no fault liability, makes the owner of the vehicle liable for compensation for death even when the accident is not due to the fault of the owner or deriver of the vehicle and even if the accident has taken place due to the fault of the victim. In view thereof, the claimants are entitled to the grant of compensation under 'no fault liability' to the tune of Rs.25,000 under Sec.140 of the Act.

5.3(cid:9)The no fault provision as it propounded in Section 92-A of Old Act (New Section 140) of the Motor Vehicles Act is 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.

5.4(cid:9)In construing a remedial statute the courts ought to give it "the widest operation which its language will permit. The effect of a beneficial legislation is not construed to be defeated by interpreting in such way and object of the Legislature is not worked upon. The Court must also be vigilant to see that benefits conferred by welfare legislation are not defeated by subtle devices. It is the duty of the Court, in every case where ingenuity is expended to avoid welfare legislations, to get behind the smoke screen and discover the true state of affairs."

5.5(cid:9)Sec.140 of the Act deals with the liability to pay compensation in certain cases on the principle of no fault liability. It provides that 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. Sub-section (2) provides for the quantum and sub-section (3) provides that 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. [ Re. New India Assurance Co. Ltd. v. Jayrambhai Fulabhat Vachant Suragpara reported in 1999(1) T.A.C. 250 at p. 252 (Guj).]

5.6(cid:9)In this case the tribunal has to come to conclusion on the material on record and prima facie satisfied itself that (i) the accident has arisen out of the use of the motor vehicle (ii) the said accident has resulted in a permanent disablement of the person who is making the claim or the death of a person whose legal representatives are making the claim and (iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident. This is so because irrespective of any fault, the legal representatives of the dead persons or the person who had suffered a permanent disablement are to be given a quick and effective temporary relief.

5.7(cid:9)I have considered the judgment of Division Bench of this Court in the case of United India Insurance Co.Ltd (supra). However, that judgment is prior to enactment of Sec.140 of the present Act and, therefore, the same decision is not applicable to the present case.

6.(cid:9)In my view the learned Judge ought to have seen only that the accident had arisen out of the use of the motor vehicle; the said accident had resulted in permanent disability of the person whose making claim and the claim is made against the owner and insurer of the motor vehicle involved in the accident. In this case the petitioner had satisfied all the three conditions and therefore his application under Sec.140 of the Act is maintainable at law. The learned Judge has only carried out inquiry which is dehors the provisions of law. In view of the same, the learned Judge has not properly considered Sec.140 of the Act in the context of the fact narrated by the petitioner in this behalf.

7.(cid:9)In view of the same, the judgment and award of the tribunal dated 30th November, 2001, is quashed and set aside. In view of the same the application filed by the claimant under Sec.140 of the Act is allowed. The respondent No.2 insurance company is directed to deposit Rs.25,000/alongwith 9% interest from the date of the application i.e. 8th March, 2000, within two months. After the said amount is deposited, the tribunal will disburse the same in favour of the claimant after duly verifying the identity of the claimant. In view of the same, the appeal is accordingly disposed of with no order as to costs. (cid:9) (cid:9) (K.M. Mehta, J.) syed/ (cid:9) (cid:9)