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Central Road Transport Corporation Ltd. Vs. Orissa State Commercial Transport Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 157 of 1974
Judge
Reported inAIR1985Ori256; [1987]61CompCas465(Orissa); 1985(I)OLR338
ActsMotor Vehicles Act, 1939 - Sections 95, 96, 110(1) and 110A; Motor Vehicles (Amendment) Act, 1969; Motor Vehicles (Amendment) Act, 1978
AppellantCentral Road Transport Corporation Ltd.
RespondentOrissa State Commercial Transport Corporation and ors.
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateB.P. Patnaik and ;Puranjan Roy, Advs.
DispositionAppeal allowed
Cases ReferredKarnataka State Road Transport Corpn. v. Jyoti Constructions
Excerpt:
.....gave several notices to defendant 1, the owner, as well as defendant 4, the insurer, to get histruck repaired, but since nothing was done, the plaintiff filed the present suit claiming damages to the tune of rs. 1, relating to the jurisdiction of the court to try the suit, held that the civil court had no jurisdiction to entertain the suit, as the amendment act 56 of 1969 enlarged the jurisdiction of the claims tribunal by bringing within its purview the power to award compensation for damage to the property as well, and by necessary implication ousted the jurisdiction of the civil court, inasmuch as only a reference is contemplated and not a regular suit on the basis of common law principles as was beipg done prior to the amendment. 2 should be taken as genuine and correct and the..........the insurer, to get histruck repaired, but since nothing was done, the plaintiff filed the present suit claiming damages to the tune of rs. 13,765.98 representing the cost of repairs, appended in schedule-a to the plaint and rs. 12,000/- as damages towards loss of business due to forced idleness of the vehicle, appended in schedule-b to the plaint, in all totalling to rs. 25,765.98.2a. defendant no. 4 was the original insurer, but after the nationalisation of the general insurance, defendant 3 took over themanagement and control of the affairs of defendant 4 and, therefore, both the insurance companies were arrayed as defendants.3. two sets of written statements were filed -- one set by defendant 1 and the other by defendant 4. defendant 1 denied all the allegations made in the plaint.....
Judgment:

G.B. Patnaik, J.

1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Jajpur, in money Suit No. 30 of 19V3.

2. Plaintiff is the owner of a truck bearing registration number ORU 1197. The plaintiff avers that while the said truck was proceeding towards Paradeep, it had a breakdown and the truck was being repaired on being parked on the non-metal portion at the extreme left of the Express Highway on 30-3-1972. At 5.30 a.m. while the said truck was in a stationary position, another truck bearing registration number ORU 139 belonging to the defendant 1 came with a high speed from the opposite direction and dashed the standing truck of the plaintiff-and pushed down the same below the embankment in consequence of which the vehicle ORU 1197 suffered heavy damage. The truck of defendant 1 at the relevant time was being driven by defendant 2. The plaintiff then gave several notices to defendant 1, the owner, as well as defendant 4, the insurer, to get histruck repaired, but since nothing was done, the plaintiff filed the present suit claiming damages to the tune of Rs. 13,765.98 representing the cost of repairs, appended in Schedule-A to the plaint and Rs. 12,000/- as damages towards loss of business due to forced idleness of the vehicle, appended in Schedule-B to the plaint, in all totalling to Rs. 25,765.98.

2A. Defendant No. 4 was the original insurer, but after the nationalisation of the general insurance, defendant 3 took over themanagement and control of the affairs of defendant 4 and, therefore, both the insurance companies were arrayed as defendants.

3. Two sets of written statements were filed -- One set by defendant 1 and the other by defendant 4. Defendant 1 denied all the allegations made in the plaint and alternatively pleaded that in case plaintiff was entitled to get any damages, then the same was to be paid by either the insurer, defendant 4, or the driver, defendant No. 2. Defendant 4 also denied all the averments made in the plaint and took a stand that the suit itself was not maintainable. The said defendant further averred that there being no privity of contract between the plaintiff and the said defendant, the plaintiff could not make the said defendant liable. Defendant 2 remained ex parte.

4. On these pleadings, the Subordinate Judge framed four issues and on issue No. 1, relating to the jurisdiction of the court to try the suit, held that the Civil Court had no jurisdiction to entertain the suit, as the Amendment Act 56 of 1969 enlarged the jurisdiction of the Claims Tribunal by bringing within its purview the power to award compensation for damage to the property as well, and by necessary implication ousted the jurisdiction of the Civil Court, inasmuch as only a reference is contemplated and not a regular suit on the basis of common law principles as was beipg done prior to the amendment. It was further held that the driver (defendant No. 2) was-negligent in driving the vehicle and also there was an element of rashness on his part in driving the vehicle. On the question of quantum of damages, the learned Subordinate Judge held that the estimate of damage prepared by P. W. 2 should be taken as genuine and correct and the claim of compensation for idleness of the vehicle was also well-founded. The learned Judge ultimately concluded that the plaintiffs claim of damages amounting to Rs. 25,765.98 was well-founded, but in view of the finding on issue No. 1 that the suit is not maintainable and the Civil Court has no jurisdiction to try the suit as such, the plaintiff was not entitled to the claim. On these findings, the learned Subordinate Judge dismissed the suit.

5. Mr. S. S. Basu, the learned counsel for the appellant, contended that the conclusion of the Subordinate Judge on the question of jurisdiction of the Civil Court was erroneous and was based upon mis-interpretation of therelevant provisions of the M. V. Act and the said conclusion was liable to be reversed. He further submitted that in view of the finding that the plaintiff is entitled to the damages claimed which is not being challenged by the respondents in this appeal, the suit must be decreed in full.

5A. Mr. P. Roy appearing for the insurer does not challenge the findings of the court below on the question of damages or negligence on the part of the driver of defendant 1 in causing damage to the property of the plaintiff by way of filing a cross-objection and, therefore, those findings must be taken to be final. Mr. Roy, however, reiterates the grounds on which the learned Subordinate Judge has held the suit to be not maintainable. The only question, therefore, which arises for consideration in this appeal is whether in the facts and circumstances of the case, the jurisdiction of the Civil Court is said to have been ousted.

6. In order to decide this question, it is necessary to note certain changes in the provisions of the Motor Vehicles Act (hereinafter referred to as the 'Act') which have been introduced by way of amendment from time to time. Section 110 of the Act authorised the State Government to constitute one or more Motor Accident Claims Tribunals (for short, 'Claims Tribunals'), 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. Ssection 110-F of the Act provides that where Claims Tribunal has been constituted, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. Thus, the jurisdiction of the Civil Court has been taken away by the Legislature under Section 110-F in respect of claims which can be adjudicated upon by the Claims Tribunal under Section 110 of the Act. Section 110 of the Act, as it stood prior to amendment, did not bring within its purview to entertain an application for award of damages in respect of property alone. The Madras High Court in the case of Muthuswami Gounder v. Thulasi Ammal, 1970 Acc CJ 18 took the view that the jurisdiction of the Claims Tribunal did not extend to claims in respect of damages to property alone. The Punjab High Court had taken the view thatthe Tribunal could award damages only in respect of death or bodily injury (See, B. S. Nat v. Bachan Singh, AIR 1971 Punjab 144 and Ved Prakash Sethi v. Musafir Transport Co. Ltd., Mansa, 1974 Acc CJ 367). The Assam and Calcutta High Courts, however, had taken the view that if death or bodily injury was caused in course of the accident, then Tribunal could award damages even in respect of damages to property (See, State of Assam v. Urmila Datta, 1974 Acc CJ 414 and Motor Owner's Insurance Co. Ltd. v. Hrishikesh Das, 1975 Acc CJ 295) : (AIR 1975 Cal 218). The Assam and Calcutta High Courts took the view that the words 'Involving the death of, or bodily injury to' were limitative of the word 'accident' and not of the nature of the claim for compensation. They did not require that the claim for compensation must be for the death of, or bodily injury to a person, the only requirement of the section being that the claim for compensation must be in respect of an accident and the accident must be one involving the death or bodily injury to a person and it must have arisen out of the use of a motor vehicle. Even the view taken by the Calcutta and Assam High Courts, referred to earlier, did not go to the extent of enabling the Claims Tribunal to entertain the claim for damages in respect of property alone. The Karnataka High Court, however, in the case of Dy. General Manager and Divl. Controller, Karnataka State Road Transport Corpn. v. Jyoti Constructions, Mangalore, 1979 Ace CJ 426 : (AIR 1979 Kant 79) took the view that the Claims Tribunal is competent to entertain a petition merely for damages to property without anything more under Section 110 of the Act. In coming to the said conclusion, the learned Judges took into account the amendment which was made by the Amending Act 56 of 1969 and further took the view that the word 'injury' appearing in Section 110 of the Act included a wrong or damage to a man's person or goods. According to the learned Judges of the Karnataka High Court, the aim and purpose of Sections 110 and 110-A to 110-F of the Act being to provide to the victims of the accident cheap and speedy remedy, the amendment which was made by Act 56 of 1969 was only to clarify the position which was necessary because of divergent views of different courts in India.

7. A plain and literal construction of theprovisions of Section 110, as it stood prior to the amendment, in our opinion, did not authorise a Claims Tribunal to entertain a claim for compensation in respect of damage to property also. The said provision was amended by Central Act 56 of 1969 and by the amending provision, the words 'motor vehicles, or damages to any property of a third party so arising, or both' were introduced and further a Proviso was also added. One of the cardinal principles of the rule of construction is to look at the amendments made by the legislature to a provision and to find out if the said amendment was to remedy any mischief or defect which the law had not provided earlier. In our opinion, the amendment made in sub-sec. (1) of Section 110 by Amending Act 56 of 1969 was intended to enable the Claims Tribunal to entertain an application for award of damages in respect of property also, which was not within the jurisdiction of the Tribunal till then. In the present case, the accident having occurred on 30-3-1972 i.e., subsequent to the amendment of Sub-section (1) of Section 110, the Claims Tribunal would have ordinarily the jurisdiction to entertain an application for damages to the property also.

8. The next question which arises for consideration is whether in view of the Proviso to Sub-section (1) of Section 110, the claim for compensation being more than Rs, 2,000/-, a suit in the Civil Court is maintainable or not. The Proviso says that where the claim for compensation in respect of damage to property exceeds Rs. 2,000/-, the claimant may at his option, refer the claim to a Civil Court for adjudication and in case a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim. The expression 'refer the claim to a Civil Court' cannot be equated with 'file a suit in Civil Court.' The meaning of the Proviso, therefore, is that the application even where damage to property exceeds Rs. 2,000/-has to be initially filed before the Tribunal and then on an application being made, the matter has to be referred to the Civil Court. This provision being a beneficial provision has been designedly made so that a claimant in respect of damage to property exceeding Rs. 2,000/- can get the claim adjudicated by the Civil Court on payment of much less court-fee which is payable before the Tribunal. In this view of the matter, in accordance with the Proviso to Sub-section (1) of Section 110 of the Act, inour opinion, a. claim for compensation in respect of damage to property alone even exceeding Rs. 2,000/- has to be made initially before the Tribunal and the claimant can get the matter referred to the Civil Court for adjudication at his option. This procedure has not been adopted in the present case and, therefore, straightway filing of a suit in the Civil Court to adjudicate upon the lis (sic). The Civil Court gets jurisdiction only when the matter is so referred to it under Proviso to Sub-section (1) of Section 110 of the Act.

9. The next important question which arises for consideration is whether in the absence of 'the owner of the property' within the category of persons who are entitled to file applications for compensation enumerated in Section 110-A of the Act, notwithstanding the amended provisions of Section 110, can an owner make an application to the Claims Tribunal claiming compensation in respect of any damage to his property caused by accident arising out of the use of motor vehicle? Section 110A deals with the application for compensation. Though by the Amending Act 56 of 1969, the words 'motor vehicles, or damages to any property of a third party so arising, or both' were introduced into Section 110 enabling the Claims Tribunal to entertain an application for award of damages in respect of property alone, corresponding provision in Section 110-A was not introduced, enabling the owner of the property to make an application for compensation. The 'owner of the property' was brought into Section 110-A by way of amendment, by Amending Act 47 of 1978 which came into force with effect from 16-1-1979. Prior to the said date, therefore, the owner of the property seeking to claim, compensation for damages to his property was ineligible to file an application under Section 110-A of the Act. Consequently, the amended provisions of Section 110 enabling the Tribunal to entertain an application for award of damages in respect of property only could not be effective till 16-1-1979 on account of non-inclusion of 'owner of the property' in Section 110A of the Act. Therefore, prior to 16-1-1979, the owner of the property claiming compensation for damages to property arising out of accident of vehicles had the only remedy of approaching the Civil Court in common law and the Civil Court would have full jurisdiction to entertain and decide the lis. The suit in present case having been filed on2-4-1973, i.e. prior to the amendment of Section 110-A of the Act, the Civil Court has jurisdiction to adjudicate upon and decide the lis between the parties. In that view of the matter, we set aside the finding of the Subordinate Judge on issue No. 1 and hold that in the facts and circumstances of the present case, the Civil Court has jurisdiction to entertain and decide the suit.

10. In view of the fact that the findings of the trial court with regard to the negligence of the driver of defendant No. 1 and the quantum of damage suffered by the plaintiff have not been challenged by the respondents in this appeal and are, therefore, must be taken to be concluded, the necessary consequences would be that the suit must be decreed in full.

11. Mr. Roy, the learned counsel for the insurer, has, however, contended that the liability of the insurance company arises because of the provisions in Section 96 of the Act and, therefore, the said liability will not accrue when the dispute is being adjudicated upon in the Civil Court and the insurance company could be made liable only when the matter is decided by the Claims Tribunal under the provisions of the Act. We do not find any insurance Company. There is no dispute that under Section 96 of the Act, it is the duty of the insurer to satisfy judgments against person insured. Nowhere Section 96 of the Act indicates that 'judgment' referred to therein is only the judgment of a Claims Tribunal. In our opinion, therefore, the insurance company would be liable to discharge the obligation arising out of Section 96 of the Act in satisfying the decree of the Civil Court also, in the facts and circumstances of this case in respect of damages to any property arising out of accidents involving the use of motor vehicle which had taken a policy of insurance as contemplated under Section 95 of the Act.

12. In the ultimate result, therefore the First Appeal is allowed and the suit is decreed, but in the facts and circumstances of the case, there would be no order for costs in this appeal.

P.C. MISRA, J.

13. I agree.


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