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Mohammad Lqbal Vs. Bhimaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 47 of 1984
Judge
Reported inII(1985)ACC289; AIR1985Kant171; [1986]60CompCas1094a(Kar)
ActsMotor Vehicles Act, 1939 - Sections 92A, 110B and 110CC
AppellantMohammad Lqbal
RespondentBhimaiah and ors.
Appellant AdvocateGowrishankar, Adv. for ;C.S. Shantarnallappa, Adv.
Respondent AdvocateDevasundar and ;C.M. Monnappa, Advs.
Excerpt:
.....sinha & v.s. sirpurkar, jj] admission held, categorical admission cannot be resiled from, but in a given case it may be explained or clarified. - 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. (4) a claim for compensation under subsection (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. the amended section 110-b clearly states..........for such death or permanent disablement.' then comes the provisions as to other rights to claim compensation for death or permanent disability.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.'sub-sec. (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.....
Judgment:

Sabhahit, J.

1. This Appeal by the Owner of the vehicle in question is directed against the judgment and award dated 6-12-1983 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 92-A of the Motor Vehicles Act to the claimants.

2. Learned Counsel appearing for the appellant submitted that the amount of Rs. 15,000/- awarded under Section 92-A should have been directed to be paid by the Insurer-3rd respondent in this appeal, as the vehicle was insured on the date of the accident, and the award made was within the liability of the insurer.

3. On 6-6-1983 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. 10,000/- 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 92-A, praying that Rs. 15,000/- should be 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 Sec. 92A against the owner of the vehicle in question.

4. The learned Counsel appearing for the appellant submitted, as stated above, that the Insurance Company should have been made liable to pay the compensation, whereas, the learned Counsel for the Insurance Company submitted that as contemplated under Sec. 92A, the owner alone should be made liable and what is done by the Tribunal is 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 only against the owner? Or it should be fixed as contemplated under Section 110B of the M. V. Act?'

6. Section 92A and other connected sections were incorporated in the M.V.Act, 1939, by Amending Act 47 of 1982, which received the assent of the President on 31-8-1982. The amending Act is called 'The Motor Vehicles (Amendment) Act, 1982. Sub-sec. (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.'

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) dt. 15th September 1982-Gaz of India, (Ex) Part II-Sec. (ii) Part No. 412.

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) - dt. 31st December, 1982 - Gaz. of India part II-Sec. 3(ii)(ex) - Part No. 564.

7. Section 92-A 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.

8. 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;

Liability To Pay Compensation In Certain Cases On The Principle Of No Fault.-92A(l) Where the death or permanent disablement of any person has resulted from an accident arising out 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-sec. (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 owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under subsection (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.'

Then comes the provisions as to other rights to claim compensation for death or permanent disability.

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.'

Sub-sec. (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 S. 92A shall be disposed of as aforesaid in the first place.'

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

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

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

Section 92E speaks of the overriding effect.

9. 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'.

10. Then comes Section 13 of the Amending Act, which, among other things, amends the original Section 95 Sub-Sec. (2) with regard to the liability of the Insurance Company.

11. 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 Section 109B and C. Section 15 of the Amending act amends the original Section 110 of the M.V. Act by adding an explanation;

'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 motor vehicles' includes claims for compensation under Section 92A'.

12. Section 16 of the Amending Act amends Section 110A of the original Act adding the following provisio:-

'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'.

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

13. Section 17 of the Amending Section amends Section 110AA. It states : -

'In Sec. 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.

14. Then comes amendment of Subsec. (2) of Section 110B of the main Act by Section 18 of the Amending Act. It reads :

'In Section I 10B of the Principal Act, -

(a) for the words 'hold an inquiry into the claim and may make an award', the words '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' shall be substituted.

After the amendement, 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 the 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 accidents or any of them, as the case may be.' Sub-Sec. (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.'

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

16. Thus, reading the Amending Act and the provisions of the main Act together, it becomes clear that after the Amending Act, namely Act No. 47/82 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 motor vehicle and for Rs. 7,500/- in the case of permanent disablement.

17. All that the claimant has to do is to include a separate statement to that effect immediately before the signature of the applicant-claimant (vide Sec. 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 Sec. 110B).

18. 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.

19. 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 110-B clearly states that an enquiry into each of the claims' is necessary.

20. 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'.

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 P.M. Report marked by consent. If it is desired that the liability should be saddled on 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.

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

22. 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'.

23. Therefore, there is no substance in the contention that since Sec. 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 Section 110A to (F) of 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 has to indemnify the amount. That difficulty is overcome now by the Amended Section, as See. 110B now states that the liability can be saddled on the Insurance Company and that applies to the claim awarded under Section 92A also.

24. 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 15-3-1983 to 14-1-1984 in the name of Mohammad Iqbal, owner of the vehicle, and the accident occurred on 6-6-1983. Therefore, on the date of the accident the policy was current and hence the insurer is liable for compensation.

25. The next question is whether the Tribunal can await interest on the compensation awarded under Section 92A of the Motor Vehicle Act. In this connection it is necessary to read amending Section 19 of Act No. 4 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 tinder 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.

26. 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 over by the Insurance Company. No costs.

27. Appeal allowed.


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