1992 ALLMR ONLINE 981

M.L. DUDHAT, J.

SUBA TRANSPORT CO. Vs. PHIROZE SETHANE PVT. LTD.

F.A.No. 273 of 1988

12th November, 1992

Petitioner Counsel: M. B. Kotak
Respondent Counsel: A. Kudrolli, L. G. Bhagat

Motor Vehicles Act (1939),S. 110,S. 110A Motor Vehicles Act (1939),S. 110,S. 110A

JUDGMENT

JUDGMENT :- The only limited issue to be decided in this appeal is as to whether the damages claimed by the respondents under the Motor Vehicles Act (hereinafter referred to as 'the M. V. Act' for the sake of brevity) can come within the ambit of the words 'damages to the property owned by the owner'.

2. Few facts which are material for deciding this first appeal are as under :-

Appellant No. 1 in this case is the owner of the vehicle which met with an accident. Petitioner No. 2 is the insurance company. The respondents are a private limited company carrying on the business in P.V.C. material claiming the damages from the present appellants of Rs. 50,000/- on the ground of failure of electric supply to their industrial unit due to the accident.

3. On 20th March 1984 at about 4.45 a.m. tempo bearing No. MMS-2708 owned by appellant No. 1 dashed against an electric pole due to which the electric pole broke down, which ultimately resulted in failure of electric supply. Since there was total failure of electric supply to the respondents' industrial unit, the respondents installed new cable worth Rs. 10,500/- by incurring expenses of Rs. 3,100/- for installation. It is the case of the respondents-claimants that due to this failure, the respondents suffered loss in the production for two days as their whole manufacture was suspended during that time. The respondent-company, therefore, filed their claim under section 110-A of the M.V. Act.

4. The aforesaid claim was resisted by the present appellants. Appellant No. 1 in their written statement at Exh. 14 admitted the factum about their ownership of the tempo and also about the accident damaging the electric pole belonging to the M.S.E.B. situated nearby the respondents' factor)'. However, appellant No. 1 denied that the concerned vehicle was driven rashly and negligently. It was contended on behalf of appellant No. 1 that the vehicle was driven with a reasonable speed. However, when the, vehicle-came near the spot where the accident took place, the driver of the vehicle saw an electric cable over-hanging on the road. Thinking the said cable as a lively electric cable, the driver suddenly tried to wheel round the vehicle due to which the driver lost the control and the vehicle banged against the electric pole. On the basis of the aforesaid contentions, it was contended by appellant No. 1 that he was not negligent and. therefore, not liable to pay any damages. It was also contended on behalf of appellant No. 1 that the claim of damages as mentioned by the respondents in their application is not maintainable under the M. V. Act, as the said claim cannot come within the words 'damages to the property as owned by the claimant'.

5. Appellant No. 2 also filed the written statement which is at Exh. 12 and took the specific plea that the Tribunal had no jurisdiction to entertain the claim made by the respondents as the same did not come within the ambit of the words 'damages to the property owned by the claimant'.

6. The Tribunal, after going through the evidence as led by the parties and after scanning the depositions of the parties, came to the conclusion that the respondents proved that they suffered damages on account of negligence on the part of the tempo driver employed by the I st appellant and that the application for damages made by the present respondents was maintainable under section 110 of the M.V. Act. The Tribunal also held that the electric installation in the factory of the respondents was damaged and they suffered loss of production as a direct consequence of the alleged accident. On the basis of these findings the Tribunal, by its decision dated 14th October 1986 passed the award of Rs. 14,080/- at the interest of 9 per cent per annum from the date of filing the petition i.e. from 13th July 1984 till the realisation of the amount. This decision dated 14th October 1986 passed by the Motor Accidents Claims Tribunal, Thane, in Motor Accident Claim No. 204 of 1984 is the subject matter of challenge before me in this first appeal.

7. Shri Kotak, learned counsel for the present appellants, did not -dispute the fact that the accident took place on 20th March 1984. in the said accident the tempo MMS-2708 owned by the appellant No. 1 dashed against the electric pole breaking the electric pole and the cable supplying electricity to the respondents' factory. Shri Kotak also conceded that the tempo was driven rashly and negligently and did not challenge the finding of the Tribunal on that point. However, Shri Kotak strongly contended that the Tribunal had no jurisdiction to entertain the claim filed by the respondents.

8. As against this contention, Shri A. A. Kudrolli, learned counsel for the respondents, contended that the claim of the respondents comes within the jurisdiction of the Tribunal and supported the findings given by the Tribunal.

9. Since there is no controversy about the facts, this Court has only to decide the law point in this case as to whether the damages claimed by the respondents are damages to the property owned by them as envisaged by the M.V. Act.

10. In order to support his contention Shri Kotak, learned counsel for the present appellants, first relied upon two sections viz., section 110(1) and section 110-A more particularly section 110-A(1)(aa) of the M. V. Act. These provisions are as under :-

"110. Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both :

Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.

Explanation. -For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles' includes claims for compensation under section 92-A.

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of the them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he -

(a) is. or has been a Judge of a High Court, or

(b) is, or has been a District Judge, or

(c) is qualified for appointment as a Judge of the High Court.

(4) Where two or more Claims Tribunals are constituted for any area, the State Government may. by general or special order, regulate the distribution of business among them.

110-A. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 110 may be made -

(a) by the person who has sustained the injury; or

(aa) by the owner of the property; or

(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(c) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be :

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed :

Provided that where any claim for compensation under section 92-A is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant;

(3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident :

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time."

11. After going through section 110(1), it is clear that the State Government constituted Motor Accident Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of the accidents involving the death of, or bodily injury to persons arising out of use of motor vehicles or damages to the property of the third person so arising or both.

12. Shri Kotak, learned counsel for the appellants, contended that section 110. sub-clause (1) gives power to the Tribunal to adjudicate damages to any property of the third person arising out of accident. He further contended that in fact in the present case no property of the respondents, the third party. was damaged by the accident. Admittedly the electric pole which was broken to pieces damaged the cable belonged to the M.S.E.B. who never came forward to claim the damages. Not only that but the M.S.E.B. is not even the party to the litigation, Shri Kotak stated that in the application made by the respondents, the respondents claimed the damages as under :-

“1. New cable purchased

Rs.

10,500.00

2. Octroi

Rs

-- --

3. Tempo hire charges (Conveyance)

Rs.

200.00

4. Installation Bill from M/s. Anil Electricals

Rs.

3,180.00

5. Loss of production for 2 days due to suspension of electricity (Rs.17,977/- day)

Rs.

35,954.00

Total

Rs.

49,834.00

After referring to the aforesaid items as claimed by the claimants in their claim. it is contended on behalf of the appellants that none of these claims can come within the purview of section 110 and, therefore, the Tribunal had no jurisdiction to entertain such a claim. According to Shri Kotak admittedly no property belonging to the respondents was damaged by the accident. The loss due to failure of electricity sustained by the respondents was due to the failure to supply the electricity from the M.S.E.B. and if at all the respondents claim any damages, they could have claimed the same under section 9 of the Civil Procedure Code and not under section 110 of the M. V. Act.

13. On fair interpretation of section 110 of the M.V. Act read with section 110-A(1)(a) and (1)(aa) it appears that the Tribunal is given authority to adjudicate upon the claims for damages to any property of third party arising out of accident only in respect of the property, put to actual loss by the accident, owned by the claimant. If the property is not put to actual loss or is not owned by the claimant, then in that event the damage to any such property cannot come within the ambit of section 110 read with section 110-A(1)(a) and (1)(aa).

14. Shri Kotak, learned counsel for the appellants, in order to reinforce his argument, relied on certain authorities of various Courts. Firstly he relied on the ratio decided by the High Court of Bombay in Ashok Janardan Simant and another vs. Maharashtra State Road Trans. Corpn. and others, 1986 ACJ 86. In this case there was an accident between a State Transport bus and a truck resulting in death of the bus driver and also injuries to the passengers in the bus. The Corporation paid compensation to the dependents of the driver under the Workmen's Compensation Act and also paid ex gratia payment to the injured passengers. The Corporation thereafter filed the claim under the M.V. Act against the owner of the truck for indemnification of the amounts which they had paid to the dependents of the deceased driver and to the injured passengers. The Tribunal granted the said amounts. Against the said order of the Tribunal, the truck owner preferred first appeal and the Division Bench of this High Court held that the Tribunal had no jurisdiction to entertain such a claim of indemnification in respect of the amount which the Corporation paid to the dependents of the driver under the Workmen's Compensation Act and ex gratia payment made to the injured passengers. The Division Bench held that under section 110-A application for compensation arising out of the accident of the nature specified in sub-section (1) of section 110 may be made : (a) by the person who has sustained the injury; or (aa) by the owner of the property; or (b) where the death has resulted from the accident, by all or any of the legal representatives of the deceased; or (c) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased as the case may be. In other words, the Division Bench held that in the said case the claim for compensation payable to the widow of the deceased driver could have been made only by the legal representative of the deceased driver, i.e. the widow in the said case and not by the Corporation. Similarly, the amount paid ex gratia to the injured persons could have been claimed only by the injured persons themselves and not by the Corporation. On the basis of the aforesaid findings, the Division Bench held that the Corporation could not have filed an application for the said amounts paid to the dependents of the driver and the injured persons. By applying the ratio of the aforesaid decision given by the Division Bench, whatever the damage sustained by the respondents, the respondents shall not be entitled to claim the damages in the Tribunal under the M.V. Act, as neither any employee of the respondents was injured by the said accident nor the property belonging to the respondents was damaged by direct result of the accident. Since the damage to the cable and the pole was sustained by the M.S.E.B. by the negligent driving, the M.S.E.B. could have successfully claimed the damages to the pole and the cable.

15. Shri Kotak, learned counsel for the appellants, thereafter relied on the ratio of the case decided by the High Court of Gauhati in Assam State Transport Corporation vs. Kamurun Nessa Mazumdar and others, 1991 ACJ 464. In this case the bus hit a truck coming from the opposite side. The truck was damaged and its driver sustained minor injuries. Police took up case against the bus driver but did not take up case against the driver of the truck. The Tribunal found that the accident was caused due to the negligence of both the drivers and their blameworthiness being 2 : 1 between the bus driver and the truck driver. The said finding of the Tribunal was reversed in the High Court and the High Court held that the driver of the bus was solely negligent in causing the accident. In the said matter the owner of the truck also claimed damages due to loss of income when the truck was lying idle during repairs. The High Court disallowed the said claim of the owner of the truck. On interpretation of section 110 of the M. V. Act the High Court held that the claim made on account of loss of income cannot be allowed under the M. V. Act.

16. Shri Kotak, learned counsel for the appellants, further relied on the ratio of the case decided by the High Court of Madhya Pradesh in Rajkumar vs. Mahendra Singh and others, 1985 ACJ 103. In this case there was an accident between two trucks and the petitioner filed claim for compensation in respect of cost of repairs of the vehicle and loss of business on account of vehicle remaining idle and for physical and mental pain. The High Court allowed theclaim of repairs, however, rejected the claim of compensation towards the loss of business income. The High Court held that the Tribunal was empowered under section 110 to grant compensation only in respect of (i) death, (ii) bodily injury and (iii) damage to the property and as such the business loss does not constitute damage to property and such claim can be entertained by the Civil Court.

17. Taking into consideration the ratio of the cases decided in 1991ACJ 464 and 1985 ACJ 103 and taking into consideration the provisions of section 110(1) of the M.V. Act, according to me, the respondents are not entitled to recover the damages claimed by them in their claim Item No. 5 i.e., loss of production for 2 days due to suspension of electricity of amount of Rs. 35,954/- as claimed by them. The said claim made by the respondents will have to be rejected, firstly because the loss of business for two days due to failure of electric supply was not damage to the property as envisaged under the M. V. Act and secondly, by the collision of the tempo against the electric pole, there was no loss to any property owned by the claimant as a direct result of the accident, but as pointed out earlier the loss, if any, was to the property belonging to the M.S.E.B. and the M.S.E.B. has not come forward to claim damages.

18. Shri Kotak also relied on certain other decisions of Assam and Kerala High Courts in State of Assam vs. Sunil Kumar Dey, 1991 ACJ 382. and in General Manager, Kerala State Road Trans. Corpn. vs. Saradamma, 1987 ACJ 926, respectively. Both the aforesaid decisions reiterate the same principle that loss of business cannot be claimed under the provisions of the M. V. Act.

19. Shri Kudrolli. learned counsel for the respondents, contended that the damages claimed by the respondents come within the ambit of section 110(1) of the M.V. Act and the Motor Accidents Claims Tribunal had jurisdiction to decide the same. According to him the respondents were carrying out the business of manufacturing P.V.C. and due to the accident electric supply to their factory was cut off for two days. Further according to him due to this there was no production in their factory and the respondents were required to give the pay to the workmen without taking any corresponding work for that. According to him, the word 'property' as used under the M. V. Act should be given wider meaning. Shri Kudrolli also traced the historical background of the legislation to show how in the earlier days wider meaning was given to the word 'property' in order to give benefit to the persons who lost their property and also their lives.

20. In order to understand the argument as advanced by Shri Kudrolli for the respondents and the ratio of the case law cited by him, it is desirable to keep in mind the nature of the claim advanced by the respondents. The respondents claimed damages for purchase of cable on the ground that the said cable was purchased to continue the electric supply to the factory which had stopped its working for two days. Secondly, the respondents claim conveyance charges for hiring tempo to bring material. Thirdly, the respondents claim installation charges and lastly, the respondents claim loss of production for two days dueto the failure of electricity. In the earlier discussion we have seen as to how on plain reading of section 110(1)and 110-A(1)(aa)and (1)(aa) the said claim cannot come within the purview of the said two sections. The aforesaid view is also supported by several authorities of different High Courts including the High Court of Bombay. In the background of this, this Court has to take into consideration the submissions made by Shri Kudrolli. Learned counsel for the respondents.

21. The argument of Shri Kudrolli is that the word 'property' used in section 110(1) and section 110-A(1)(aa) must be given wider meaning so as to include even tangible and intangible effect of the property. As discussed earlier, from the plain reading of section 110(1) with section 110-A(1)(aa) it is clear that the Legislature has conferred power on the Motor Accidents Claims Tribunal for adjudicating upon the claims for compensation in respect of the accidents involving damages to any property owned by the third person only when the said property is put to actual loss by the accident. The argument made by Shri Kudrolli for the respondents with reference to the earlier legislative history, according to me. is virtually innocuous, as whether the claim as made by the respondents comes within section 110(1) of the M.V. Act or not is to be seen by direct interpretation of the statute itself and as already discussed above there is no lacunic position if one reads section 110(1) along with section 110-A(1)(aa) that the power to adjudicate is given to the Motor Accidents Claims Tribunal under the M. V. Act by the Legislature for the purpose of compensation in respect of the accidents involving damages to the property owned by the third party only if the property is put to actual loss out of direct incidence of the accident. In view of this clear position, in my opinion it is not necessary to go to the legislative history to understand the meaning of the word 'property' mentioned in the above two provisions.

22. Shri Kudrolli, in order to support his proposition, also relied on certain case laws. Firstly he relied on the decision of this High Court in Sharda Prasad Singh vs. Maharashtra State Road Transport Corporation and others, 1984 Mh.L.J. 199 = 1984 ACJ 240. In this case Staff car was damaged in an accident caused by the tanker due to the negligence of the tanker-driver. Due to the said accident two employees of the owner of the car died and the third got injured. The owner was required to pay the compensation under the Workmen's Compensation Act. The owner thereafter filed composite civil suit for recovery against the owner/driver of the tanker and the insurance company claiming damages to the property exceeding Rs. 2,000/- plus the compensation amount paid. In the aforesaid facts and circumstances of the case, this High Court held that since the damage to the property was exceeding Rs. 2,000/-. The owner of the property has an option to file the claim before the Claims Tribunal or to refer the said matter to the Civil Court under section 110(1) and. therefore. section 110-F does not bar such claim or compensation paid under Workmen's Compensation Act and, therefore, the claimant is entitled to recover the said payment under section 13 of the Act. According to me, the aforesaid decision given by the Division Bench of this High Court is given with reference to the provisoofsection 110(1) of the M.V. Act, 1939. The said proviso is as under :-

"Provided that where such claim includes a claim for compen-sation in respect of damages to property exceeding rupees two thousand. the claimant may, at his option, refer the claim to a Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim."

As per the said proviso, if the damage to the property is exceeding Rs. 2,000/. then the claimant has option to refer the claim to the Civil Court for its adjudication and when such reference is made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim. In the said case since the claimant opted the option under the aforesaid proviso and approached the Civil Court, the Division Bench of this High Court held that under section 9 of the Civil Procedure Code the Civil Court has got power even to consider the damages as claimed for by the claimant in that case as regards the compensation paid by him under the Workmen's Compensation Act. According-to me, the ratio decided in the aforesaid case is not at all applicable to the facts and circumstances of the present case. In the present case the claimants opted and filed their claim before the Tribunal established under the M. V. Act and, therefore, since as pointed out earlier, section 110(1) read with section 110-A(1)(aa) does not allow any of the claims as made by the claimants in their claim, the aforesaid case relied upon by the respondents does not support the respondents' contention.

23. Shri Kudrolli thereafter relied on the decision ofJammu and Kashmir High Court in Komal Kusha vs. S. Kirpal Singh and others, AIR 1988 J. and K. 11. where the said High Court held that the claim for compensation on account of damages to the property which was caused out of the use of a motor vehicle was entertainable by a Tribunal and the Tribunal had jurisdiction to adjudicate and decide such a claim and it was not necessary that while preferring the said claim as regards damage to the property, the claimant must have suffered bodily injury. With respect, the aforesaid decision is not going to help the respondents. Firstly, the said case was in respect of the accident which took place prior to 1979 where the law was different. At the relevant time the question was in a motor accident whether the claimant can claim the damages to the property when there was no injury to his person and in the facts and circumstances of that case as per the law prevalent at that time the Court held that such a claim can be entertained. According to me, the ratio decided in that case nowhere supports the submissions made by the respondents.

24. Shri Kudrolli thereafter referred to the decision given by the Karnataka High Court in Karnataka State Road Transport Corpn. and another vs. V. K. Abdal Majeed and others, 1991 ACJ 453. According to me, the ratio as decided in this case is also of no use in the facts and circumstances of this case.

25. Shri Kudrolli then relied on the decision of Kerala High Court in Oriental Fire and General Insurance Co. Ltd. and another vs. Mrs. P. P. Misri and others, II (1992) ACC 321. In this case claim under section 110-A was filed by the legal representative of the deceased driver who met with an accident. The limited question before the Court was since the accident took place at the behest of the driver, whether his legal representatives are entitled to get the compensation. Under the M. V. Act it was held in that case that since there was a finding of the Tribunal that the vehicle which the deceased driver was driving at the relevant time was not roadworthy and since the owner had obligation to keep the vehicle on the public road only and only if it was roadworthy the said claim filed by the legal representatives of the deceased driver was maintainable under the M. V. Act. According to me, the ratio decided by this case again does not support any of the contentions as advanced by the respondents and, therefore, this case is also of no use to the respondents.

26. Shri Kudrolli lastly cited the decision of the Bombay High Court in Hirabai wife of Harji Ingale and another vs. Babu Manika Ingale, 1980 Mh.L.J. 494 = 1980 BCR 451. The said case is relied on by the respondents to support their argument about meaning of the word 'property' as used in section 110(1) and section 110-A(1)(aa), I have gone through the length and breadth of this decision. The said decision is given by the Division Bench in the matter of Hindu Adoptions and Maintenance Act and the Hindu Succession Act and according to me the observations and the ratio of this case are of no use for interpreting the word 'property' as used in section 110(1) and section 110-A(1)(aa).

27. In view of the aforesaid findings of mine, according to me, the claim made by the respondents for the compensation in the present case is not maintainable under section 110(1) of the M. V. Act and, therefore, this appeal (sic) is liable to be dismissed. Therefore, the Judgment and order given by the Motor Accidents Claims Tribunal, Thane, dated 14th October 1986 in Motor Accident Claim No. 204 of 1984 is set aside. Appeal is allowed with no order as to costs.

28. Shri Kotak, learned counsel for the appellants, submitted that after the order of the Tribunal the appellants have deposited amount of Rs. 18,532.12 ps. and the same was withdrawn by the respondents. Since I have set aside the order given by the Tribunal, I direct the respondents to deposit the said amount of Rs. 18,532.12 ps. in the High Court within four weeks from today.

29. I further direct under Order 7, Rule 10 of the Civil Procedure Code read with Rule 310 of the Bombay Motor Vehicles Rules, 1959 the claim application made by the respondents being Motor Accidents Claim No. 204 of 1984 filed before the Motor Accidents Claims Tribunal at Thane to be returned to the respondents for presentation before the competent Civil Court.

Order accordingly.