L.P.A. No.1051 of 2000

3rd July, 2008

Petitioner Counsel: R. K. P. SINGH

Cases Cited:
Oriental Insurance Company Ltd. Vs. Mohiuddin Kureshi, 1994(1) PLJR 79 [Para PARA4]

JUDGMENT

-Despite service of notice, no one appears on behalf of the respondents.

2. By reason of a motor vehicle accident, a death occurred. In order to obtain compensation under Section 140 of the Motor Vehicles Act, 1988, the appellants approached the Tribunal. The Tribunal felt that a claim under Section 140 of the Act is an interim claim, subject to the final adjudication of the claim made under Section 166 of the Act and as the appellant made no independent claim under Section 166 of the Act, the interim claim, as put forward under Section 140 of the Act, is not maintainable. On that analogy, the claim of the appellants was rejected. The appeal preferred by the appellants having been rejected on identical grounds, the present appeal has been preferred.

2A. A look at the order under appeal would indicate that the learned Judge, who dealt with the appeal, did not take note of the provisions of Sections 140 and 166 of the Act and instead was persuaded by a short judgment rendered by a learned single Judge in connection with two matters which have been reported. Learned Judge, at the same time, did not also notice the observations of the Full Bench decision of the Kerala High Court as referred to in the judgment under appeal. We would, therefore, consider the provisions of Sections 140 and 166 of the Act, which are as follows :

"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 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.

(5) Notwithstanding anything contained in sub-section (2), regarding death 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."

"166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Sec. 165 may be made -

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

(b) by the owner of the property;

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

(d) by any agent duly authorized 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, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed :

Provided that where no claim for compensation under Sec. 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant:

* * *

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Sec. 158 as an application for compensation under this Act."

3. A look at Section 140 of the Act would make it amply clear that the compensation payable thereunder is a fixed sum of money and at least that much is required to be paid in the event of death or permanent disablement. Sub-section (5) of Section 140 of the Act makes it abundantly clear that payment of compensation as mentioned in Section 140 of the Act would not absolve the party' liable to compensate and accordingly the party liable to compensate may have to pay more than what has been provided for in Section 140 of the Act and in such case the amount of compensation payable under Section 140 of the Act should be deducted from the amount of ultimate compensation payable for a motor vehicle accident resulting in death or permanent disablement. Although, Section 140 of the Act fixes the liability for payment of compensation, but in so many words, it does not indicate the forum to be approached for the purpose of recovery thereof. The proviso to sub-section (2) of Section 166 makes it abundantly clear that for the purpose of obtaining compensation under Section 140 of the Act, one may approach the Claims Tribunal before whom an application for compensation has to be made. A combined reading of Sections 140 and 166 of the Act would not suggest that the compensation payable under Section 140 of the Act is by way of interim measure. The same would only become by way of interim measure, when a larger claim is awarded or at least to the extent as mentioned in Section 140 of the Act, the liability whereunder is fixed. A claimant may be satisfied only with the amount of compensation as mentioned in Section 140 of the Act and accordingly can seek compensation on the basis thereof. It is not obligatory on the part of the claimant to claim compensation for an amount larger than what has been mentioned in Section 140 of the Act. It may be possible that the claimant may feel that it would be a waste of time to ask for more than what has been mentioned in Section 140 of the Act, and therefore, can confine his claim only to that extent as is permissible under Section 140 of the Act.

4. The view expressed by us is also supported by a Division Bench judgment of this Court rendered as far back as on 21st September, 1993 in the case of Oriental Insurance Company Ltd. Vs. Mohiuddin Kureshi, reported in 1994(1) PLJR 79. It was unfortunate that subsequent to the said judgment, without caring to look into the same, a learned Single Judge in a two paragraph judgment expressed his opinion contrary to what has been expressed by the Division Bench and thereby derailed the established law governing the field.

5. In the circumstances, the appeal is allowed, the judgment and order under appeal is set aside, appeal preferred by the appellant against the award of the Tribunal is allowed and the award of the Tribunal is substituted by directing payment of compensation to the appellants by the respondents before the Tribunal to the tune of Rs.50,000/- together with interest at the rate of 12 per cent per annum from the date of death until payment, as well as cost of the litigation assessed at Rs.20,000/-.

Appeal allowed.