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Madhya Pradesh State Road Transport Corporation, Jabalpur Vs. Jahiram and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 144 of 1966
Judge
Reported inAIR1969MP89
ActsMotor Vehicles Act, 1939 - Sections 96(2), 96(6), 110A and 110F
AppellantMadhya Pradesh State Road Transport Corporation, Jabalpur
RespondentJahiram and anr.
Appellant AdvocateV.S. Dabir, Adv.
Respondent AdvocateR.K. Tankha, Adv. (for No. 1) and ;V.S. Pandit, Adv. (for No. 2)
DispositionAppeal allowed
Cases ReferredNance v. British Columbia Electric Railway Co. Ltd.
Excerpt:
- - --it is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. such claims clearly fall under the 3rd category, mentioned in willes j. we fail to appreciate how can the statutory defences, be raised unless the insurer is made a party. unless, this is done, this court cannot determine whether the claims tribunal has acted on a wrong principle of law, or, whether it has made entirely erroneous estimate of damages, and the very purpose of the appeal would be defeated......the corporation has a fund under section 27 called 'the mpsrtc fund', and as regards its third party liability arising out of the use of its vehicles. it has to set apart from put- of its revenues, such sum as may be directed for meeting any such liability. a provision in thatbehalf was made by rule 26 of the madhya pradesh state road transport corporation rules, 1962, which is in these terms:'26. third party liability fund:-there shall be established and maintained by the corporation a fund to be called the third party liability fund into which shall be paid every year from and out of the revenues of the corporation such sum as may be directed by the state government from time to time for meeting any liability arising out of the use of any vehicle of the corporation, which the.....
Judgment:

Sen, J.

1. The Madhya Pradesh State Road Transport Corporation (hereinafter referred to as the 'MPSRTC'), has filed this appeal under Section 110-D of the Motor Vehicles Act (Act 4 of 1939),against an award of the Claims Tribunal, Rewa, dated 30th June 1966, awarding a sum of Rs. 20,000/- as compensation to one Jahiram, for bodily injuries resulting from a road accident.

2. The facts giving rise to this appeal, so far as necessary, may be briefly stated. On 21st November 1962, a bus MPJ 2434 owned by the MPSRTC, while on its way from Rewa to Satna, met with an accident when it collided with a truck on a culvert of a river, near Mouja Rampur. As a result of the accident, the MPSRTC bus, together with all its passengers, fell beneath the culvert. The claimant, who was a passenger in the ill-fated bus, sustained serious injuries on his person and became unconscious as a result of the injuries sustained by him. He was brought back to Rewa and admitted in Gandhi Memorial Hospital, Rewa. An X-ray revealed fractures of the 2nd, 4th, 5th, 6th, 7th and 9th ribs on the left side of his chest. . The claimant received treatment at the hospital for his injuries until 14th December 1962 when he was discharged, and he had evidently suffered damages for his disablement, loss of business, physical and mental worries and sufferings, and medical treatment On that account, he claimed Rs. 20,000/-as compensation, against the MPSRTC and its driver, one Fatehmohammad. While denying its liability on account of the alleged rashness or negligence on the part of its driver, the MPSRTC asserted that the direct and proximate cause of the accident was the negligence of the driver of truck. Alternatively, it was pleaded that narrowness of the culvert, made it impossible for more than one vehicle to simultaneously pass and although Fateh Mohd, had acted as a person of ordinary prudence, he could not have foreseen the impending impact and, therefore, the accident was an inevitable accident not attributable to any negligence on his part. The quantum of compensation claimed was also disputed. After a trial on these issues, the Claims Tribunal found that the accident occurred due to rash and negligent driving of the bus and hence awarded Rs. 20,000/-as damages.

3. Before dealing with the merits of this appeal, it is necessary for us to set out a few more facts. The MPSRTC came to be constituted as a 'State Transport undertaking', under Section 3 of the Madhya Pradesh State Road Transport Corporation Act (Act 64 of 1950), w.e.f. 5th June 1962. Its financial structure is that the Corporation has a fund under Section 27 called 'The MPSRTC Fund', and as regards its third party liability arising out of the use of its vehicles. It has to set apart from put- of its revenues, such sum as may be directed for meeting any such liability. A provision in thatbehalf was made by Rule 26 of the Madhya Pradesh State Road Transport Corporation Rules, 1962, which is in these terms:

'26. Third Party Liability Fund:-There shall be established and maintained by the Corporation a Fund to be called the Third Party Liability Fund into which shall be paid every year from and out of the revenues of the Corporation such sum as may be directed by the State Government from time to time for meeting any liability arising out of the use of any vehicle of the Corporation, which the Corporation or any person in the employment of the Corporation may incur to third parties.'

Initially when the Corporation had been established, it had no Third-Party Liability Fund in existence, and, therefore, all its vehicles were insured against third party risks under Section 94 (1) of the Motor Vehicles Act. This was until 19th July 1963 when the State Government Issued a notification under Section 94 (3), exempting MPSRTC from the operation of Section 94 (1). The Third-Party Liability Fund by them had been established and maintained by that authority, in accordance with Rule 26.

Nevertheless, all liability arising out of Third-party risks between 5th June 1952 and 19th July 1963, was covered under a policy of insurance against third-party risks, taken out by the Corporation in respect of its each vehicle, and the insurers were the Indian Insurance Companies Pool. The accident in question had occurred on 21st November 1962, i. e., at a time when the MPSRTC had insured its vehicles in respect of third party risks. The present application for a claim for compensation had been filed on 18th January 1963 and initially, the insurers had been impleaded as opposite party No. 3, but apparently its name was struck off from the array of parties while lodging the application. The result has been that the application for compensation was imperfectly constituted inasmuch as the insurers were not impleaded as a party, nor is there anything on record to suggest that the Claims Tribunal had served any notice On them to appear and contest their liability in the proceedings before it.

4. The first contention relates to the invalidity of the proceedings before the Claims Tribunal. Section 110-A (2) of the Motor Vehicles Act provides that an application for compensation arising out of an accident involving death, or bodily injury to any person arising out of use of motor vehicles, made to a Claims Tribunal, must be in the form prescribed. This is provided for by Section 110-A (2), which reads, thus:--

'110-A (2). Every application under Sub-section (1) shall be made to theClaims 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.'

The form of the application has been prescribed for by Rule 3 of the Madhya Pradesh Motor Accidents Claims Tribunal Rules. 1939, framed under Section 111-A of the Motor Vehicles Act, which reads, thus:

'3. Applications:-- (1) An application for a claim for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110-A of the Act shall be made in Form 'A' appended to these rules. Such application shall be in 'duplicate and shall be signed and verified in the manner prescribed by Order VI, Rule 15 of the Code of Civil Procedure, 1908 (V of 1908).'

Appended to these Rules, is the statutory Form 'A' prescribed under Rule 3, and it enjoins that the insurer should be Impleaded as Opposite party No. 3. Rule 7 (1) lays down that the Claims Tribunal shall issue notice to the party against whom the applicant claims relief (referred to as the 'opposite party'), who may then appear and contest the claim. After a Claims Tribunal has been constituted for any area, the jurisdiction of the Civil Courts to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, is barred under Section 110-F, of the Motor Vehicles Act.

5. It is a settled rule of construction of statutes that in case of an Act which creates a new jurisdiction, a new procedure, new forms or new remedies, the procedure, the forms, or remedies (there provided, and not others) must be strictly followed. In N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64, their Lordships of the Supreme Court have stated:--

'It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.'

Following the dictum of Willes J. in Wolverhampton New Water Works Co. V. Hawkesford. (1859) 6 CB (NS) 336, we think, it will be a fair inference from the provisions of Section 110-A to Section 110-F of the Motor Vehicles Act, to state that there is now only one remedy for grant of compensation in respect of accidents involving the death, or bodily injury to persons, arising out of the use of motor vehicles, when there is a policy of insurance against third-party risk. That remedy is by way of application for compensation to be made to the Claims Tribunal under Section 110-A. The jurisdiction of the Civil Courts toentertain such claims having been barred by Section 110-F, the right must be enforced in the manner provided. Such claims clearly fall under the 3rd category, mentioned in Willes J. in (1859) 6 CB (NS) 336 (supra), namely:--

'But there is a third class, viz., where a liability not existing at common Jaw is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'

6. Where a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means no other mode is to be adopted. In Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2), Their Lordships have stated,

'The rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all Other methods of performances are necessarily forbidden.'

[See. also Taylor v. Taylor, (1876) 1 Ch D 426], which has not been followed by their Lordships of the Supreme Court in State of Uttar Pradesh v. Singharasingh, AIR 1964 SC 358.

7. We have no manner of doubt that the intention of the Legislature as gathered from the words used in Sections 110-A to 110-F of the Motor Vehicles Act, is plain and unambiguous and they have one meaning only, namely, that no such claims can now be tried in the ordinary way. As a logical consequence, it follows that such claims have to be made in the manner prescribed. The remedy provided by the statute must be followed, and the form given by the statute must be adopted and adhered to. The Legislative object of inserting these sections in the Motor Vehicles Act by Act 100 of 1956 was to provide for a speedy and summary enforcement of third-party risks against' an insurer.

The submission that insurers had no right to be impleaded as a party, is wholly unfounded. Their Lordships of the Supreme Court have in British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331, indicated the nature of defences that are available to an insurer upon being impleaded as a party. We fail to appreciate how can the statutory defences, be raised unless the insurer is made a party. That the only manner in which the insurer can avoid its liability. In view of the clear provisions contained in Section 96 (2) and (6) of the Motor Vehicles Act, it can hardly be asserted that an insurer is not a party'to an action for recovery of damages. Thus, the insurer must, of necessity, be a party to such proceedings.

We must, accordingly, hold that the application as framed and presented before the Claims Tribunal, suffers from a serious infirmity and the only course now open is to remit the proceedings for a retrial after allowing the claimant an opportunity to implead the insurers and serving on them a notice in order that they may appear and contest the claim to the limited extent provided in Section 96 (2) of the Act.

8. The proceedings have to be remitted for another reason. Even otherwise, in general, an appeal upon the quantum of damages will not be allowed unless either (i) the Tribunal has applied a wrong principle of law, or, misdirected itself or (ii) the amount awarded either was so inordinately low or was so inordinately high that it must be held as erroneous. [See, Nance v. British Columbia Electric Railway Co. Ltd., 1951-2 All ER 448.] The normal rule, therefore, is that no appeal lies on the quantum of damages unless it involves a matter of principle. This case, however, calls for an interference because the tribunal has misdirected itself by awarding an amount without any basis. The Claims Tribunal has not, at all, applied its mind to the question of ascertaining the quantum of damages. In a schedule annexed to the application, the claimant had assessed Rs. 33,682.84 P. as damages suffered by him, but in para 6 of the application, he had limited his claim to Rs. 30,000/- as compensation. The MPSRTC in para 7 of the Written statement asserted that the figures mentioned in the schedule were imaginary, and also denied its liability for payment of the various amounts claimed. In dealing with this question, the Claims Tribunal has disposed of the matter in a very laconic manner. This is what it states:--

'The damages of Rs. 20,000/- claimed by the applicant for permanent disablement, loss of business, physical and mental worries and sufferings and for the special damages incurred by the applicant in the medical treatment are reasonable and fair and the applicant is entitled to get damages of Rs. 30,000/-from the non-applicant.'

The expression 'reasonable and fair' used by the Claims Tribunal carries us nowhere. It way the duty of the Claims Tribunal to separately ascertain and do carmine under different heads, pecuniary and non-pecuniary damages, if any, awardable to the claimant. Although the eventual award must be of a lump sum, nevertheless, the sum awarded must be made up of its constituent parts. In personal injury cases this course has to be followed by a Claims Tribunal whiledealing with assessment, by indicating the different heads under which the damages are awarded, because the appeal to the High Court is by way of rehearing on the question of damages. Unless, this is done, this Court cannot determine whether the Claims Tribunal has acted on a wrong principle of law, or, whether it has made entirely erroneous estimate of damages, and the very purpose of the appeal would be defeated.

9. We, accordingly, allow the appealand set aside the award made by theClaims Tribunal, and remit the proceedings to it with a direction that it shall,with advertence to the observations thatwe have made, direct the claimant to implead the insurers, the Indian InsuranceCompanies Pool, as 'Opposite PartyNo. 3' in the proceedings, and after service of notice to them, allow the partiesto raise such pleas as are open, and tohear and decide the claim afresh, inaccordance with law. The costs shallabide the event Hearing fee Rs. 100/- ifcertified.


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