S.K. Mal Lodha, J.
1. Against the judgment dated August 6. 1977 of the Motor Accidents Claims Tribunal, Udaipur (District Judge, Udaipur) (for short 'the Tribunal'), the claimants who are the legal representatives of the deceased Chunilal (Driver) have filed this appeal under Section 110-D of the Motor VehiclesAct (No. IV of 1939) (hereinafter referred to as' the Act'1.
2. By the judgment aforesaid, the Tribunal rejected the application for compensation filed by the appellants ('the applicants' herein) being barred as no cause of action was shown in the application against the respondents, who were non-applicants.
3. The applicants filed the application for compensation amounting to Rs. 25,000/-before the Tribunal on June 23. 1975 alleging that on January 6. 1975. Bus No. RJY 2151 was going from Kelva to Diver via Aamet and it was being driven by the deceased Chunnilal. At about 12.00 in the night, the Bus fell into a pit and met with an accident. The applicants who are the heirs of Chunnilal have filed the application for compensation for the loss suffered by them due to the death of Chunnilal Non-applicant No. 3, who is the owner of the Bus filed a reply contesting the claim solely on the ground that Insurance Company is liable to pay the claim of the applicants. Non-applicant No. 2 the National Insurance Company Ltd., Northern Regional Office (Jeevan-Vikas) (Third Floor), Asaf Ali Road, New Delhi contested the claim, denying the liability to pay the compensation. The Tribunal framed the following issues :
(1) Whether the Bus No. RJY going from Aamet to Diver fell into a pit on 6-1-1975 and met with an accident and thereby Chunnial Driver died?
(2) Whether the applicants are entitled to get the compensation and if so, what amount and from whom?
(3) Whether the death took place due to the negligence of the driver and if so, can applicants file the present claim?
Issue No. 3 was treated as a preliminary issue. The Tribunal by its judgment dated August 6, 1977 rejected the application holding that no cause of action arises against the non-applicants and therefore, the application is not maintainable. Hence, this appeal has been filed by the applicants as aforesaid.
4. I have heard Mr. B.R. Mehta for Mr. A.L. Mehta, learned counsel for the appellants and M/s. B.L. Maheshwari and B. Advani, learned counsel for respondents Nos. 1 and 2. Nobody appeared on behalf of respondent No. 3.
5. The only point that arises for determination is whether the Tribunal was right in rejecting the applicants' application on the ground that no cause of action has been shown in the application. In the application filed by the applicants, it has not been stated as to how the Bus met with the accident and who was responsible for this. The deceased Chunnilal himself was driving the vehicle and he drove it to a pit. Learned counsel for the appellants referred to Section 110-B of the Act and contended, that under this section the Court should award 'just' compensation and according to him, it is not at all necessary for the applicants to state in the application as to how the accident had taken place or who is responsible for it. Learned counsel further submitted that as Chunnilal had died in the accident, his heirs are entitled to compensation and so, they could file the application claiming compensation. On the other hand, Mr. B.L. Maheshwari, learned counsel for respondents Nos. 1 and 2 urged that Section 110-B of the Act cannot be availed of by the applicants in this case, for, the Act merely provides the procedure for disposal of compensation cases and no person has a right to get compensation under the Act until it is shown that he is entitled to get compensation under the general rules of compensation or my other specific law.
6. 1 have given my serious consideration to the rival contentions of the learned counsel for the parties.
7. Section 110-B of the Act reads as under : --
'Section 110-B. Award of the Claims Tribunal --On receipt of an application for compensation made under Section 110-A. the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be 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.'
When an application is filed for compensation, the Tribunal has been empowered to awardjust' compensation. A perusal of Section 110-B of the Act shows that nothing has been provided in it as to on what grounds, the compensation can be awarded.
8. At the very outset, I may state that conflicting views have been expressed by different High Courts and even different Judges of the same High Court. One view taken by the Punjab High Court in Ram Pratap v. Punjab Roadways. AIR 1962 Punjab 540, the Madras High Court in Palani Ammal v. Safe Service Ltd., 1966 ACJ 19, and Perumalv. E. Reddiar, 1974 ACJ 182. the Mysore High Court in Ariyama v. Narasimhiah, 1972 ACJ 22 : (AIR 1972 Mys 73), the Orissa High Court in Orissa Co-operative Insurance Society v. Bhagaban Sahu. 1971 ACJ 49, Oriental Fire & Gen. Ins. Co. v. Kamal Kamini Das, 1972 ACJ 92 : AIR 1973 Orissa 33 and Motor Owners Ins. Co., v. Sarda Thacker 1974 ACJ 239, the Delhi High Court in Amarjit Kaur v. Vanguard Ins. Co. 1969 ACJ 286, and Prem Devi Pandey v. Dayal Singh 1976 ACJ 407 and the Madhya Pradesh High Court in Kasturi Lal v. Prabhakar 1970 ACJ 1 : AIR 1971 Madh Pra 145. Kamla Devi v. Kishan Chand 1970 Acc CJ 310 : AIR 1970 Madh Pra 168 and Mangilal v. Parasram 1970 Acc CJ 86 : (AIR 1971 Madh Pra 5) (FB), is that the right to claim compensation and the liability to pay the same would be governed by the general law of torts as modified by the Fatal Accidents Act and the Legal Representatives' Suits Act, 1855.
9. The Division Bench of the Madhya Pradesh High Court in Kamla Devi's case AIR1970 Madh Pra 168, while considering Sections 110 to 110-F of the Act observed as under (at Page 169):
'The group of Sections 110 to 110-F of the Motor Vehicles Act deal with the constitution of 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', and lay down the procedure and powers of these Tribunals, these sections also provide for an appeal to the High Court and bar the jurisdiction of Civil Courts 'to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal.' Nothing is said in these sections about the basis and extent of liability even about persons who can be subjected to liability. The sections do not deal with liability at all, they only provide a new mode of enforcing the liability in respect of accidents involving death or bodily injury which before the constitution of the Tribunals was being enforced by Civil Courts. The object of these sections is to provide a cheap and speedy mode of enforcing liability arising out of use of Motor Vehicles. The remedy is made cheap by providing for application for compensation in place of suit and thus obviating the necessity of payment of court-fees. It is made expeditious by empowering the Tribunals to follow summary procedure and by cutting down second appeals. The sections are a complete code in so far as they deal with the constitution, procedure and powers of the Tribunal and appeals against the awards made by the Tribunal. But these are all matters related to the mode of enforcement of liability. The sections do not enter the field of the law of liability which still remains to be governed by the ordinary law of Torts and the Fatal Accidents Act, 1855 and it is for this reason that the sections do not refer to them at all. The power to make an award 'determining the amount of compensation which appears to it to be just' conferred on the Tribunal does not create any new basis or extent of liability. The Tribunal must determine the amount of compensation according to the substantive law of liability already in force. The words 'which appears to it to be just' only recognise that in assessment of compensation the Tribunals like Courts will have certain measure of discretion. It is well known that the duty of assessing compensation in cases of personal injury or fatal accidents, though governed by well settled rules is a difficult one as many speculative and uncertain factors have to be taken into account. Within the bounds of the law and the rules established by judicial decisions, which are themselves part of the law there is a certain area where the Courts must exercise discretion of their own and assess the final figure with a sense of justice to both the parties. It is in this sense that it can be said that the amount of compensation is what the Courts think just. Indeed, in the last clause of Section 1-A of the Fatal Accidents Act, the words 'as it (the Court) may think' are used in that sense. The same idea is reflected in Section 110-B by which the Tribunal is empowered to determine the amount of compensation 'which appears to it to be just'. The section is in no way intendedto give a go by to the basis and limit of liability fixed by the substantive law.'
(Underlining is mine)
The learned Judges dissented from Mohd. Habibulla v. K. Sittammal. 1966 ACJ 349 : AIR 1967 Madras 123 Veena Kumari Kohli v. Punjab Roadways, 1967 ACJ 297 (P & H) and Iswari Devi v. Union of India. 1968 AC 141 : AIR 1969 Delhi 183.
10. A Full Bench of the Madhya PradeshHigh Court in Mangilal's case (AIR 1971 Madh Pra 5) ruled as under : --
'Before compensation can be awarded to the claimant from the insurer there must be a finding of negligence on the part of insured as makes him liable in torts. If the insured is notliable then insurer is also not liable. From the mere statutory requirements of insurance there can be no inference of absolute liability independent of proof of negligence. Theprovisions of the Act do not lay downaffirmatively that negligence must be provedbefore the insurer is held liable to pay theclaimant compensation. But that is so becausethe Act is not intended to substitute the taw oftorts in its application to the cases ofaccidents.'
Sections 110-A and 110-F of the Act were examined in N. 1. Insurance Co. v. Shanti Misra, AIR 1976 SC 237. wherein it was held that on the plain language of Sections 110-A and 110-F. the change in law was merely a change of forum i.e.. a change of adjectival or procedural law and not of substantive law. It is thus, clear that the Act is merely u procedural one and no right to claim is conferred or given by it.
11. The other view that Sections 110 to 110-F of the Act provide a self contained Code for the adjudication of claim for compensation as well as complete machinery for adjudication of such claims has been taken by Bombay High Court in Marine & General Ins. Co. v. Balkrishna. AIR 1977 Bom 53. the Delhi High Court in Ishwari Devi Malik's case, the Gujarat High Court in Megjibha Khimj Vira v. Chaturbhai Taljabhai' 1977 ACJ 253 : AIR 1977 Guj 195 the Madras High Court in Mohd. Habibulla's case AIR 1967 Madras 123, and M. A. Rahim v. Sayari Bar 1972 ACJ 470 : AIR 1973 Mad 83. and the Punjab & Haryana HighCourt in Veena Kumari Kohli's case 1%7 Acc CJ 297.
12. Vaidya. J. in Marine & General Ins. Co's case AIR 1977 Born 53 observed as under (at Page 62):
''The moment a motor vehicle is used and injury is caused, a liability to pay compensation arises; and the Tribunal can adjudicate upon that liability and determine 'just' compensation. This can be on the general basis of ubi jus ibi remedium.'
It was further observed as under (at p. 65) :
' 'Whether we apply the Law of Torts or not, the liability to pay 'just' compensation arises when the injuries are caused by the use of the motor vehicle. The Tribunal has power to determine what is 'just' compensation irrespective of whether the defendant was at fault or was negligent or careless or not. When a person is injured by use of a vehicle, that itself is an infringement of a right. That person must, therefore, have a remedy of recovering compensation from the person whose vehicle has caused injury. That is the scheme of the provisions contained in Sections 110 to 110-F of the Motor Vehicles Act. Principles of law of negligence are relevant for determining the quantum of damages and the person liable to pay it like any other principle to be followed in the administration of justice.'
Mridul, J. agreed with Vaidya J. and relied on Shikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. AIR 1971 SC 1624. M. A. Rahim's case: distinguished N. I. Insurance Co.'s case AIR 1976 SC 237 and dissented from Ram Pratap's case AIR 1962 Punj 540 and Mangi Lal's case (AIR 1971 Madh Pra 5MFB) and observed as under:
'As already seen above, the Scheme of Chapter VIII militates against the incorporation of Law of Torts as inhibiting factors or sole principles governing exclusively the question of compensation payable under the provisions of the Act. Such an interpretation detracts from the plain and unambiguous language of Section 110-B or whittles down the sweep of Tribunals' power thereunder. It renders the expression 'compensation' which 'appears to it to be just', otiose. There is no reason why the legislature could not have used the expression 'such compensation as is payable in law 'if Law of Torts or other substantive provisionswere intended to apply to cases of compensation under the Act.'
It is thus settled by various cases of some of the High Courts of India that a person claiming compensation under the Act should state or show grounds for getting the compensation either under general principles or specific law. A person does not become entitled to compensation merely on the ground that an accident has laken place. From some of the authorities that have been adverted to above, it appears to me that the Act is merely a procedural one. In order to entitle to compensation, a person has to state or show in the application that he is entitled to compensation under the general principles regarding compensation or any other specific law. In my opinion. Sections 110-A to 110-F do not deal with the question as to who is to be held liable and in what circumstances, if an injury results from an accident. For fixing liability, in the absence of any specific statutory liability, we have to go back to the Law of Torts, according to which, generally speaking, negligence in causing the accident is essential to hold the negligent person liable. In other words Sections 110-A to 110-F do not lay down any new law for claiming compensation and provide merely a procedure for claiming compensation when an injury or death is caused on account of an accident caused by a motor vehicle and for that, the Law of Torts or the Fatal Accidents Act will have to be referred.
13. In B. Prabhakarv. Bachima 1984 Acc CJ 582 : (AIR 1984 Kant 225). an application for compensation was filed which was dismissed as the deceased Driver himself was responsible for causing accident. The question arose whether such application could be entertained by the Accidents Claims Tribunal under Section 110 of the Act. It was observed by the Division Bench of the Karnataka High Court as under (at Page 225) :
'It must give rise to a claim for compensation under Section 110 of the Motor Vehicles Act. In other words, the accident must have occurred due to actionable negligence of the owner or the driver of the vehicle, causing injury or death of third party. When the accidentoccurred due to actionable negligence of the deceased himself being the driver, no claim by his legal representatives can be entertainedby the Claims Tribunal under Section 110 of the Motor Vehicles Act. That being so. Section 110-Aof the Act would not come into play at all.For the Claims Tribunal has no jurisdictionto entertain such an application and it has,therefore, rejected the same (Vide : D.Jayamma v. S. Govindaswamyl. 1982 Lab 1C1666'.
14. I am in respectful agreement with the view taken by the Madhya Pradesh High Court in Kamla Devi's case AIR 1970 Madh Pra 168 which is the one view stated hereinabove. as it is in conformity with the decision of their Lordships of the Supreme Court in N. I. Insurance Co.'s case AIR 1976 SC 237. I have not been able to persuade myself to subscribe to the other view mentioned above taken in Marine & General Ins. Co.'s case AIR 1977 Bom 53. My conclusion stands fortified by B. Prabhakar's case AIR 1984 Kant 225. The applicants (heirs of Chunni Lal) have no cause of action as the person negligent is deceased Chunni Lal. The Tribunal was, thus, right in holding that no cause of action has arisen against the non-applicants and the application for compensation filed by the heirs of the Driver Chunni Lal who was driving the vehicle at the time of the accident is not maintainable. Issue No. 3 was rightly decided by the Tribunal and the application for compensation was also correctly rejected.
15. The result is that there is no merit in this appeal and it is accordingly, dismissed.
16. In the circumstances of the case, the parties are ordered to bear their own costs of this appeal.