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Mohammad Iqbal Vs. Bhimaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKarnataka High Court
Decided On
Case NumberMiscellaneous First Appeal No. 47 of 1984
Judge
Reported in[1987]61CompCas435(Kar); ILR1984KAR1358
ActsMotor Vehicles Act, 1939 - Sections 92A, 110B and 110CC
AppellantMohammad Iqbal
RespondentBhimaiah and ors.
Appellant AdvocateC. Gowrishankar, Adv.
Respondent AdvocateDevasundar and ;C.M. Monnappa, Advs.
Excerpt:
.....be defeated by reason of any wrongful act, neglect or default of the person in respect of those 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. the amended section 110b clearly states that 'an inquiry into each of the claims' is necessary. that difficulty is overcome now by the amended section, as section 110b now states that the liability can be saddled with the insurance company and that applies to the claim awarded under section 92a also. the insurance certificate is produced before us and it clearly shows that the national insurance company ltd. 47 of 1982. it..........for such death or permanent disablement.' 11. then comes the provision as to other right to claim compensation for death or permanent disability. 12. it is contained in section 92b. that section states : '(1) the right to claim compensation under section 92a in respect of death or permanent disablement of any person shall be in addition to any other right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this act or of any other law for the time being in force.'13. sub-section (2) of section 92b states : '(2) a claim for compensation under section 92a in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is.....
Judgment:

Sabhahit J.

1. This appeal by the owner of the vehicle in question is directed against the judgment the award dated December, 6, 1983, made on I.A.I. given by the claimants ordering that Rs. 15,000 shall be paid over by the second respondent, the owner of the vehicle, as compensation under section 92A of the Motor Vehicles Act, 1939, to the claimants.

2. Learned counsel appearing for the appellant submitted that the amount of Rs. 15,000 awarded under section 92A should have been directed to be paid by the insurer, third respondent, in this appeal, as the vehicle was insured on the date of the accident, and the award made was within the liability limit of the insurer.

3. On June 6, 1983, deceased, Shrimanth, aged about 6 years, was involved in a motor accident that occurred at 4.00 p.m. on Gulbarga-Sedam Road in front of the Government General Hospital. The bus - HKMS Service No. MYN 3510 - caused the accident, resulting in the death of the young boy, namely, Shrimanth. His father made an application claiming compensation of Rs. 1,00,000 before the Motor Accidents Claims Tribunal Gulbarga, in MVC No. 51 of 1983 on its file. Therein, he gave an application - I. A. I - under section 92A, praying that Rs. 15,000 should be held awarded expeditiously and further enquiry should be held with regard to the claim based on actionable negligence. Accordingly, I. A. I. was taken up for consideration and the Tribunal being satisfied that the boy was killed in the motor accident at the time and on the date mentioned in the petition, awarded Rs. 15,000 as compensation payable under section 92A against the owner of the vehicle in question.

4. Learned counsel appearing for the appellant submitted, as stated above, that the insurance company should have been made liable to pay the compensation, whereas learned counsel for the insurance company submitted that as contemplated under section 92A, the owner alone should be made liable and what was done by the Tribunal was just and proper.

5. The short point of law, therefore, that arises for our consideration in this appeal is :

'Whether section 92A contemplates that the liability should be saddled with only against the owner Or it should be fixed as contemplated under section 110B of the Motor Vehicles Act

6. Section 92A and other connected sections were incorporated in the Motor Vehicles Act, 1939, by Amending Act 47 of 1982, which received the assent of the President on August 31, 1982. The Amending Act is called 'The Motor Vehicles (Amendment) Act, 1982. Sub-section (2) of section 1 of that Act speaks of the application of the provisions. It states :

'(2) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint and different dates may be appointed for different provisions of this Act.'

7. And it is notified that, 'sections 2 to 7 and sections 10 to 27 of this Act shall come into force from 1st day of October, 1982', vide Notification No. S. O. 669 (E) dated September 15, 1982, Gazette of India, Extraordinary No. 412, part II section 3(II).

8. It is further notified that 'sections 8 and 9 of the said Act shall come into force from 10th day of December, 1982, vide Notification No. S.O. 869(E), dated December 31, 1982, Gazette of India, Extraordinary, No. 564, part II, section 3(ii).

9. Section 92A is sought to be incorporated into the main Act by section 11 of the Amending Act, which as stated above, has come into force on the 1st day of October, 1982.

10. Section 11 of the Amending Act states :

'Insertion of new Chapter VIIA. - After Chapter VII of the Principal Act, the following Chapter shall be inserted, namely :-

CHAPTER VIIA

LIABILITY WITHOUT FAULT IN CERTAIN CASES

92A. Liability to pay compensation in certain cases of the principle of no fault. - (1) Where the 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 shall death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under subsection (1) in respect of the death of any person shall be a fixed sum of fifteen 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 seven thousand five hundred 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 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 those 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.'

11. Then comes the provision as to other right to claim compensation for death or permanent disability.

12. It is contained in section 92B. That section states :

'(1) The right to claim compensation under section 92A in respect of death or permanent disablement of any person shall be in addition to any other right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.'

13. Sub-section (2) of section 92B states :

'(2) A claim for compensation under section 92A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 92A and also in pursuance of any right on the principle of fault, the claim for compensation under section 92A shall be disposed of as aforesaid in the first place.'

14. Sub-section (3) of section 92B states that compensation awarded under section 92A shall be final and if anything more is given on fault liability, it should be added.

15. Section 92C speaks of compensation to be awarded for permanent disablement of a person.

16. Section 92D states that the provisions of the Act shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923.

17. Section 92E speaks of the overriding effect.

18. The Amending Act incorporates into the main Act section 93, clause (ba), wherein it is stated thus :

'(ba) 'liability' wherever used in relation to the death of, or bodily injury to, any person includes liability in respect thereof under section 92A.'

19. Then comes section 13 of the Amending Act, which, among other things, amends the original section 95, sub-section (2), with regard to the liability of the insurance company.

20. Sections 109A, 109B and 109C are introduced by amending section No. 14. The special provisions as to compensation in cases of hit and run motor accidents, are contained in the newly introduced sections 109B and 109C. Section 15 of the Amending Act amends the original section 110 of the Motor Vehicles Act by adding an Explanation;

'Explanation. - For the rem oval 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 motor vehicles' includes claims for compensation under section 92A.'

21. Section 16 of the Amending Act amends section 110A of the original Act adding the following proviso :

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

22. In sub-section (3) of section 110A, for the words 'compensation under this section', the words 'such compensation' shall be substituted.

23. Section 17 of the Amending Act amends section 110AA. It states :

'In section 110AA of the principal Act, for the words 'may claim such compensation', the words, figures and letters 'may, without prejudice to the provisions of Chapter VIIA, claim such compensation' shall be substituted.

24. Then comes the amendment of sub-section (2) of section 110B of the main Act by section 18 of the Amending Act. It reads :

'In section 110B of the principal Act, -

(a) for the words 'hold an inquiry into the claim and may make an award', the words 'hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 109B, may make an award' shall be substituted.

25. After the amendment, section 110B (a) reads :

'On receipt of an application for compensation made under section 110A, the claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim, or, as the case may be, each of the claims and, subject to the provisions of section 109B, may make an award determining the amount of compensation which appears to it just and specifying the person or persons to whom compensation shall be paid; and in making the award, the Claims Tribunal shall specify the amount which shall be paid by the insurer, or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.'

26. Sub-section (b) of section 18 of the Amending Act further states that the following proviso shall be inserted at the end, namely :

'Provided that where such application makes a claim for compensation under section 92A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VIIA.'

27. Then comes section 19 of the Amending Act, which amends section 110CC of the main Act, and section 20 of the Amending Act which amends section 113A of the main Act. A new section 113B is incorporated by section 21 of the Amending Act. We are not, in this context, concerned with the other sections of the Amending Act.

28. Thus, reading the Amending Act and the provisions of the main Act together, it becomes clear that after the Amending Act, namely, Act No. 47 of 1982, has come into force on the 1st day of October, 1982, the claimants would be entitled on the basis of 'no fault liability' to the extent of Rs. 15,000 in the case of death of a person by the use of a motor vehicle and for Rs. 7,500 in the case of permanent disablement.

29. All the claimant has to do is to include a separate statement to that effect immediately before the signature of the applicant-claimant (vide Section 110A), or he may also make the additional claim on no fault liability by an I.A. made along with the main application. (Vide proviso to section 110B).

30. It may be clarified by the way, that section 92A can be invoked only if the accident occurs after the coming into force of the said section, namely, from the 1st day of October, 1982.

31. The Tribunal is enjoined to dispose of the claim under section 92A expeditiously. A doubt is expressed at the Bar whether it is necessary to make an enquiry to award compensation under section 92A. The amended section 110B clearly states that 'an inquiry into each of the claims' is necessary.

32. The scope of enquiry is, no doubt, as contemplated in section 92A of the Act, which is reproduced above. It states :

'Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle.'

33. It would further be necessary to prove that death or permanent disablement has resulted from the accident arising out of the use of the motor vehicle unless it is admitted or not denied. It can be proved by getting the wound certificate or post mortem report marked by consent. If it is desired that the liability should be saddled with the insurance company, it is further necessary to produce evidence to show that the vehicle was insured at the relevant time unless it is not denied by the insurer.

34. There cannot be any doubt that liability contemplated under Chapter VIII under section 93, would also include liability for death or bodily injury without fault liability, as section 93 is amended by incorporating '(ba)'.

35. Section 110B, after amendment, includes the award made under section 92A also, and states :

'that liability should be saddled on the owner, or insurer or driver or by all of them, as the case may be.'

36. Therefore, there is no substance in the contention that since section 92A speaks of the liability of the owner alone, the insurance company cannot be made liable for the compensation awarded, in the first place, under section 92A. In fact, prior to the incorporation of sections 110A to 110F in the Motor Vehicles Act, no direct decree or award could be made against the insurer; the decree had to be obtained against the owner and he had to proceed against the insurance company to recover the amount, as the insurance company to recover the amount, as the insurance company has to indemnify the amount. That difficulty is overcome now by the amended section, as section 110B now states that the liability can be saddled with the insurance company and that applies to the claim awarded under section 92A also.

37. In the circumstances, on the facts of this case, the Claims Tribunal was not justified in awarding the liability only against the owner without saddling the liability against the insurer. The insurance certificate is produced before us and it clearly shows that the National Insurance Company Ltd. did insure the vehicle in question from March 15, 1983, to January 14, 1984, in the name of Mohammad Iqbal, owner of the vehicle, and the accident occurred on June 6, 1983. Therefore, on the date of the accident, the policy was current and hence the insurer is liable for compensation.

38. The next question is whether the Tribunal can award interest on the compensation awarded under section 92A of the Motor Vehicles Act. In this connection, it is necessary to read amending section 19 of Act No. 47 of 1982. It clearly states that in section 110CC of the principal Act, for the word 'Chapter', the word 'Act' shall be substituted. Substituting accordingly the word 'Act' in section 110CC, it becomes obvious that the Tribunal shall award interest for compensation made under this Act. Hence, the Tribunal shall also award simple interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.

39. In the result, we allow the appeal and direct under section 110B of the Motor Vehicles Act that the entire amount of compensation awarded at Rs. 15,000 in the first instance under section 92A along with interest on the same at 6% per annum from the date of petition till payment shall be paid by the insurance company. No costs.


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