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Krishna Pillai Vs. Jalal Ahamed and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKerala High Court
Decided On
Judge
Reported inI(1990)ACC111
AppellantKrishna Pillai
RespondentJalal Ahamed and ors.
Excerpt:
.....of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - (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......in section 92-a which would indicate that the owner can be ordered to pay compensation only on a claim application to be filed by the claimant. section 110 deals with establishment of claims tribunals. sub-section (1) states that the state government may constitute tribunals for the purpose of adjudicating non claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. the procedure for putting forward such a claim is prescribed in section 110-a. this provision contemplates an application for compensation to be filed in such form and with such particulars as may be prescribed. rules have prescribed the form and particulars. no doubt proviso.....
Judgment:

U.L. Bhat, J.

1. Petitioner herein is the appellant in the above appeal. He was injured in a motor vehicle accident on 1-12-1985. He filed claim petition before the Tribunal claiming Rs. 1,00,000/- as compensation on the allegation that the motor vehicle was driven in a rash and negligent manner and such driving was responsible for the accident. The Tribunal held against the claimant and accordingly dismissed the claim petition, dismissal is challenged in the appeal.

2. Petitioner has filed this C.M.P. contending that in any event under Section 92A of the Motor Vehicles Act he was entitled to be awarded a sum of Rs. 7,500/- (on account of permanent disablement) and the Tribunal was in serious error. He, therefore, prays that this Court may award it. The application is strenuously opposed by the third respondent, insurer, who has filed a counter. Learned Counsel for the respondent submits that no amount could be directed to be paid by the insurer under Section 92-A because the claimant did not file a formal application in that behalf. According to the learned Counsel, Tribunal could not exercise the power suo motu. He also contends that permanent disability has not been proved.

3. There can be no dispute that the claimant had sustained certain injuries in the accident. He received medical treatment also. Exh. A-5 is a copy of the wound certificate. Exh. A-6 is the discharge card issued to him from the Medical College Hospital, Trivandrum, Exhs. A-7 and A-8 are similar cards, Exh. A-9 series are medical bills. Exh. A-12 is the disability certificate issued by the Medical Officer of the Medical College, Trivandrum, Exh. A-6 shows that the petitioner had compound fracture of both bones of the right leg and has undergone three major surgical procedures at the hospital. The certificate shows that 100 per cent temporary disability from the date of injury till February, 1987 and 17 per cent permanent disability has been assessed. Permanent disability is on account of limitation of right ankle movement and limitation of knee flexion upto 80E (Rt) with chronic obteomyelitis right tibia. Certificate was marked evidently without objection and provides ample material to show that there is a permanent disablement sustained by the petitioner.

4. The present claim is under Section 92-A of the Motor Vehicle Act. It reads thus:

92-A. Liability to pay compensation in certain cases on 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 veh8icle 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 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 of 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. A reading of the above provision would make it clear that wherever death or disablement of any person has resulted from an accident as contemplated therein, the owner of the vehicle shall be liable to pay compensation in accordance with the provisions thereof. This liability arises irrespective of rashness or negligence on the part of the driver in the driving of the vehicle to any extent. In other words, it creates a no fault liability to the extent indicated above. This is clear from Sub- section (3) which states that 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 of the vehicle or of any other person.

Sub-section (2) quantifies the claim, that is, Rs. 15,000/- in the case of death and Rs. 7,500/- in the case of permanent disablement. There is nothing in Section 92-A which would indicate that the owner can be ordered to pay compensation only on a claim application to be filed by the claimant. Section 110 deals with establishment of Claims Tribunals. Sub-section (1) states that the State Government may constitute tribunals for the purpose of adjudicating non claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. The procedure for putting forward such a claim is prescribed in Section 110-A. This provision contemplates an application for compensation to be filed in such form and with such particulars as may be prescribed. Rules have prescribed the form and particulars. No doubt proviso to Sub-section (2) of Section 110-A states that where any claim for compensation under Section 92-A is made in such application the application, shall contain a separate statement to that effect immediately before the signature of the applicant. We do not understand this provision as laying down a condition that compensation under Section 92-A can be awarded only on a formal application or a formal claim being made in the main application. It is not as if the claim under an order to be passed under Section 92-A is always independent of the claim under Section 110-A.

6. The provisions of Section 92-B are also relevant to an extent. Sub-section (1) states that right to claim compensation under Section 92-A shall be in addition to any other right (based on the principle of fault) to claim compensation in respect thereof under any other provision of the Act. Sub-section (2) requires such a claim be disposed of as expeditiously as possible. Sub-section (3) lays down the manner in which adjustment is to be made in regard to compensation provided under Section 92-A when compensation is directed to be paid on the main application. The former is deducted form the latter.

7. All these provisions have some purpose to serve. It may be that in some cases the accident would have arisen on account of no fault of the drover. It may be that in some cases the claimant may not be in a position to prove the fault of the driver. Legislature did not evidently want the injured in such cases to be totally denied any compensation. It is in this background that Section 92-A has been enacted to provide for compensation to be paid in extreme cases, namely death or permanent disablement even in the absence of fault of driver. To hold that the liability can be recongnised only in cases where formal application in filed will go against the salutary purpose of the provision. It is necessary for the claimant to bring it to the notice of the Tribunal so as to enable the Tribunal to exercise its jurisdiction under Section 92-A. If the Tribunal for some reason or other fails to take into consideration this aspect, parties could bring this to the notice of the Tribunal in order to enable the Tribuna to exercise its jurisdiction. Where, however, the Tribunal fails to exercise its jurisdiction, it is open to the appellate, it is open to the appellate court to pass appropriate order. We see no reason to reject the claim for compensation under Section 92-A.

8. For the above reasons we direct respondent Nos. 1 and 3 to pay Rs. 7,500/- to the petitioner.


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