Sadiq Basha v. A.Sivarasan & Ors.

IN THE HIGH COURT OFJ UDICATURE AT MADRASDATED: 27.7.2010CORAM:THE HONOURABLE MR.JUSTICE B.RAJENDRANC.M.A.No.296 of 2007Sadiq Basha .. AppellantVs.1. A.Sivarasan2. The Branch Manager, New India Assurance Co. Ltd., Gobichettipalayam, Erode District. .. Respondents Civil Miscellaneous Appeal against the order of dismissal anddecree dated 4.7.2006 in M.C.O.P.No.57 of 2004 on the file of theMotor Accidents Claims Tribunal (Fast Track Court No.2, AdditionalDistrict Judge), Gobichettipalayam. For appellant : Mr.N.Manokaran For respondent-2 : Mr.N.VijayaraghavanJUDGMENTAggrieved by the dismissal of the Claim Petition before theTribunal filed by the claimant seeking for compensation ofRs.1,75,000/- under Sections 140 and 166 of the Motor Vehicles Act,for the injuries sustained by him, the claimant has come forward withthis appeal.2. The Tribunal rejected the claim petition in respect of themotor accident, wherein, the fault was attributed to the claimanthimself. According to the appellant-claimant, while he was riding histwo-wheeler TVS-50 bearing Registration No.TN-36-D-4869 on 26.10.2000at about 4.50 p.m., another two wheeler TVS-50, bearing RegistrationNo.TN-36-D-2556, coming in the opposite direction, dashed against theappellant's vehicle and in the impact, the said person who was comingin the opposite direction, is stated to have died on the spot and theappellant-claimant was thrown away from the vehicle, as a result ofwhich, he sustained grievous injuries, namely fracture on the rightcheek and also on the occipital region of the brain. Hence, theappellant-claimant claimed a compensation of Rs.1,75,000/-. 3. The second respondent-Insurance Company contended that as aresult of the accident, the driver of the vehicle in the oppositedirection, namely TVS-50, bearing Registration No.TN-36-D-2556 died https://hcservices.ecourts.gov.in/hcservices/ on the spot and as per Ex.P-1 FIR and the evidence of the claimant asPW1, it is very clear that the Police has registered a complaintagainst the appellant-claimant as a person who has driven the vehiclein a rash and negligent manner and that the accident took place dueto the direct impact of both the vehicles. The investigation of thePolice categorically stated that the vehicle impact has occurred onlybecause of the rash and negligent driving of the appellant-claimant.Further, the claimant had also been convicted before the CriminalCourt for the offence of rash and negligent driving and he has alsopaid the fine of Rs.3,300/- by accepting his liability to pay thesame. Therefore, the Tribunal has come to the conclusion that in viewof the fact that the appellant-claimant has himself has accepted theguilt and paid the fine amount, he cannot claim any compensation muchless even the compensation under "no fault" liability, and hence, theTribunal dismissed the Claim Petition.4. The point for consideration in this appeal is as to whetherthe rejection of the Claim Petition of the appellant-claimant, iscorrect?5. The whole case rests on the theory that the appellant-claimant who was driving the vehicle, was charge-sheeted before theCriminal Court and he has also paid the fine amount by accepting theguilt. Therefore, before the Tribunal, it was contended that theclaimant having accepted his guilt and having also paid the fineamount, it is not open for him to claim compensation in respect ofhis own fault. It is quite clear that a person who has made theimpact, would not be entitled to any compensation. But that would notprevent the appellant from claiming the compensation under "no fault"liability under Sections 140/142 of the Motor Vehicles Act, as theGovernment of India has categorically stated while framing the saidAct that a person who was the injured in the accident, automaticallyis 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 thedecision of the Supreme Court reported in 1996 ACJ 555 = 1996 (2) SCC736 (K.Nandakumar Vs. M.D., Thanthai Periyar Transport CorporationLimited), wherein, the Supreme Court, while dealing with Section 92-Aof the Old Motor Vehicles Act, 1939 = new Section 140 of the MotorVehicles Act, 1988, held as follows:"3. Section 92-A reads thus:“92-A. Liability to pay compensation incertain cases on the principle of no fault.--(1)Where the death or permanent disablement of anyperson has resulted from an accident arising outof the use of a motor vehicle or motor vehicles,the owner of the vehicle shall, or, as the case https://hcservices.ecourts.gov.in/hcservices/ may be, the owners of the vehicles shall, jointlyand severally, be liable to pay compensation inrespect of such death or disablement inaccordance with the provisions of this section.(2) The amount of compensation which shallbe payable under sub-section (1) in respect ofthe death of any person shall be a fixed sum offifteen thousand rupees and the amount ofcompensation payable under that sub-section inrespect of the permanent disablement of anyperson shall be a fixed sum of seven thousandfive hundred rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be requiredto plead and establish that the death orpermanent disablement in respect of which theclaim has been made was due to any wrongful act,neglect or default of the owner or owners of thevehicle or vehicles concerned or of any otherperson.(4) A claim for compensation under sub-section (1) shall not be defeated by reason ofany wrongful act, neglect or default of theperson in respect of whose death or permanentdisablement the claim has been made nor shall thequantum of compensation recoverable in respect ofsuch death or permanent disablement be reduced onthe basis of the share of such person in theresponsibility for such death or permanentdisablement.”4. By reason of sub-section (1) of Section 92-A, an absolute liability is cast upon the owner ofa vehicle to pay compensation in respect of deathor permanent disablement resulting from an accidentarising out of its use. By reason of sub-section(3), the claimant is not required to plead orestablish that the death or disablement was due toa wrongful act or neglect or default of the owneror any other person. Sub-section (4) is in twoparts. The first part states that a claim forcompensation under the section is not defeated byreason of any wrongful act, neglect or default ofthe person who had died or suffered permanentdisablement. The second part states that thequantum of compensation is not to be diminishedeven if the person who had died or suffered https://hcservices.ecourts.gov.in/hcservices/ permanent disablement bore some responsibility forhis death or disablement.5. There was, therefore, on a plain reading ofSection 92-A, particularly, the first part of sub-section (4) thereof, no basis for holding that aclaim thereunder could be made only if the personwho had died or suffered permanent disablement hadnot been negligent. The provision being clear, noexternal aid to its construction, such as theStatement of Objects and Reasons, was called for.6. The judgment in the case of RamanbhaiPrabhatbhai, 1987 ACJ 561 (SC), dealt principallywith the question whether the brother of a personwho had died in a motor accident could claimcompensation under Section 110-D of the MotorVehicles Act, 1939. In para 9 of the judgment itwas observed: "... From the point of view of thepedestrian the roads of this country have beenrendered by the use of the motor vehicleshighly dangerous. ‘Hit and run’ cases wherethe drivers of the motor vehicles who havecaused the accidents are not known, areincreasing in number. Where a pedestrianwithout negligence on his part is injured orkilled by a motorist whether negligently ornot, he or his legal representatives, as thecase may be, should be entitled to recoverdamages if the principle of social justiceshould have any meaning at all. In order tomeet to some extent the responsibility of thesociety to the deaths and injuries caused inroad accidents there has been a continuousagitation throughout the world to make theliability for damages arising out of motorvehicles accidents as a liability withoutfault. In order to meet the above socialdemand on the recommendation of the Indian LawCommission, Chapter VII-A was introduced inthe Act. Sections 92-A to 92-E of the Act areto be found in Chapter VII-A. Section 92-E ofthe Act provides that the provisions ofChapter VII-A shall have effectnotwithstanding anything contained in anyother provision of the Act or of any other lawfor the time being in force. Section 92-A ofthe Act provides that where the death or https://hcservices.ecourts.gov.in/hcservices/ permanent disablement of any person hasresulted from an accident arising out of theuse of a motor vehicle or motor vehicles, theowner of the vehicle shall, or, as the casemay be, the owners of the vehicles shall,jointly and severally, be liable to paycompensation in respect of such death ordisablement in accordance with the provisionsof the said section." (emphasis added)The words emphasised by the High Court areitalicized. This passage does not interpretSection 92-A; the sentence in which the underlinedwords occur is a statement of a principle ofsocial justice.7. The decision in the case of Minu B.Mehtav. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC),was rendered before Section 92-A was introducedinto the statute and is of no assistance in itsinterpretation.8. The appellant is entitled to the benefitof the provisions of Section 92-A and tocompensation in the sum of Rs.7500, as quantifiedtherein for permanent disability." 7. Thus, in the above decision, the Supreme Court dealt withSection 92-A of the Old Motor Vehicles Act, 1939 (new Section 140 ofthe Motor Vehicles Act, 1988) regarding claim of compensation under"no fault" liability, from which, it could be inferred that in thecase of a person accepting the guilt and paying the fine, especiallythe owner for his own fault, it is true that he cannot claim anycompensation, but that will not prohibit him from claimingcompensation under "no fault" liability, because, the Motor VehiclesAct itself has empowered the claimant to get the compensation underSection 140/142 of the Act. 8. Following the principles enunciated by the Supreme Court inthe said decision, it has to be held that the Tribunal is not correctin rejecting the Claim Petition of the appellant-claimant, and hence,"no fault" liability claim of Rs.25,000/- alone has to be now awardedto the appellant-claimant, as entitling him under Section 140(2) ofthe Motor Vehicles Act, 1988, taking into consideration the injuriessustained by him, namely vision problem, injuries on the right cheek,damage of teeth, inability to lift objects in the right hand, injuryon the occipital region of brain, etc. https://hcservices.ecourts.gov.in/hcservices/

9. In the result, the appeal filed by the appellant-claimant isallowed, setting aside the impugned dismissal order and decree passedin the Claim Petition and now, the appellant-claimant is awarded asum of Rs.25,000/- as compensation, as per Section 140(2) of theMotor Vehicles Act, 1988, under "no fault" liability, with interest @7.5% p.a. from the date of claim petition till the date ofrealisation. Since it is stated that the vehicle of the appellant-claimant is insured with the second respondent-Insurance Company, thesecond respondent-Insurance Company shall pay the said amount withinterest, within a period of eight weeks from the date of receipt ofa copy of this judgment and on such deposit being made, theappellant-claimant is entitled to withdraw the same in accordancewith law. There are no costs in this appeal. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Motor Accidents Claims Tribunal (Fast Track Court No.2, Additional District Judge),Gobichettipalayam. 2.The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.N.Manokaran, Advocate, SR.5489971 cc To Mr.N.Vijayaraghavan, Advocate, SR.54884C.M.A.No.296 of 2007rsy(co)pmk.6.10.2010