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New India Assurance Co. and anr. Vs. Gauri Shanker Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 133 of 1981
Judge
Reported in[1987]62CompCas72(Raj)
ActsMotor Vehicles Act, 1939 - Sections 95, 95(2), 96, 110A and 110A(1)
AppellantNew India Assurance Co. and anr.
RespondentGauri Shanker Sharma and anr.
Appellant Advocate H.M. Bhargava, Adv.
Respondent Advocate G.C. Mathur, Adv.
Cases ReferredSharda Prasad Singh v. Maharashtra State Road Transport Corporation
Excerpt:
.....providing minimum insurance for social welfare and for providing contingency of payment of compensation in case of accidents in the present day society, where automobiles perform a very important part in transporting man as well as property. it is true that it is to some extent, the tribunal has considered hard facts, like normal damages which have been incurred in taking the truck from one place to another place and making payments for repairs. 20. shri mathur wanted the amount to be increased but, i do not find any good ground to increase the amount......this court, shri bhargava has raised an important question of law regarding jurisdiction of the claims tribunal in the matter of accident causing damage to property. shri bhargava pointed out that under section 110a in the amended form of the motor vehicles act, 1939 (hereinafter, for short, referred to as 'the act'), there was no provision for filing a claim by the owner and this was introduced by an amendment in the year 1978. shri bhargava further pointed out that for a claim of more than rs. 2,000, an option was given to go to the civil court and this again shows that the tribunal had no jurisdiction. in support of his contention, shri bhargava relied upon the decision of the madras high court in r. selvaraj v. jagannathan [1969] acj 1 wherein it has been observed as under:'3. but.....
Judgment:

Guman Mal Lodha, J.

1. This appeal has been filed by the insurer and the owner of truck No. RJX 1898 jointly against the award of the Motor Accidents Claims Tribunal, Tonk, granting compensation of Rs. 14,841though the claim submitted was for Rs. 26,650 for an accident in which one truck dashed against other truck.

2. Gaurishanker, claimant-respondent No, 1, the owner of truck No. RSJ 248, claimed damages caused to his truck in the accident which took place on the midnight of March 29/30, 1979, near Soyala village on the main road when his truck was standing as it has become out of order. The cause of the accident, as alleged, was that while the said truck No. RSJ 248 was standing on one side of the main road and in the said truck, its driver and cleaner were sleeping, in the morning at about 7.30 a.m. one truck No. RJX 1898, which was being driven by Tulsiram, respondent No. 2, came from the side of Jaipur going towards Tonk, with a very high speed being driven rashly and negligently and collided with the said truck RSJ 248 which was standing on one side of the road, with the result the said truck was smashed. A complaint was lodged in the police station and, thereafter, this claim petition was filed.

3. After the filing of the reply, the issues were framed and the evidence of the parties was recorded. The Tribunal then, as mentioned above, awarded claim of Rs. 14,841. Both the owner and the insurer of truck No. RJX 1898 were made liable. Before this court, Shri Bhargava has raised an important question of law regarding jurisdiction of the Claims Tribunal in the matter of accident causing damage to property. Shri Bhargava pointed out that under Section 110A in the amended form of the Motor Vehicles Act, 1939 (hereinafter, for short, referred to as 'the Act'), there was no provision for filing a claim by the owner and this was introduced by an amendment in the year 1978. Shri Bhargava further pointed out that for a claim of more than Rs. 2,000, an option was given to go to the civil court and this again shows that the Tribunal had no jurisdiction. In support of his contention, Shri Bhargava relied upon the decision of the Madras High Court in R. Selvaraj v. Jagannathan [1969] ACJ 1 wherein it has been observed as under:

'3. But I am unable to share the view in Dr. Om Prakash Mishra v. National Fire and General Insurance Co. Ltd., AIR 1962 MP 19, that where the claim is a composite one, part of it relating to compensation for personal injury and the rest to loss of property, the Claims Tribunal will have jurisdiction over the entire matter. The principle that where in order to give relief it will be necessary as an incidental matter to cover another subject otherwise within the exclusive jurisdiction of a different forum is applicable only to civil courts and cannot, in my opinion, be extended to Tribunals. The reason is that the Tribunal is a creature of the statute and its jurisdiction is strictly limited by the terms of such statute. It cannot be allowed to exceed its limits on any general principle of law. The jurisdiction should be delimited strictly in terms of the statutory definition thereof. But that is not the case as to the jurisdiction of the civil courts of the land. The principle that will govern such courts will be that they will have jurisdiction to try all civil matters unless it is expressly or by necessary implication taken away from their purview by a competent legislation.

4. As I said, Section 110 brought into being the Tribunal for a specific purpose, namely, to try claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of such motor vehicles. It is only in respect of such claims, the jurisdiction of the civil court is excluded by the terms of Section 110F. There is absolutely no indication in either of the sections or in any other provision of the Motor Vehicles Act to justify the proposition that the Tribunal will have jurisdiction to try any claim other than that defined in Section 110(1). It may be that this approach to the matter may involve trial of identical issues by different jurisdictions which may possibly lead to conflict of findings. But that in itself will not, in my opinion, make any difference to the limits of the jurisdiction of the statutory tribunal set up by the terms of the legislation.'

4. A reading of the editorial note contained in the decision of the Madras High Court in R. Selvaraj v. Jagannathan [1969] ACJ 1 would show that the Gujarat High Court, at that time in Zarin Rustomji Munshi v. Sanlubhai Manibhai Patel [1968] ACJ 327 ; AIR 1969 Guj 233, has also taken a contrary view and followed the decision of the Madhya Pradesh High Court in Om Prakash v. National Fire and General Insurance Co. Ltd., AIR 1962 MP 19, wherein it was held that in such matters, the civil court will have no jurisdiction, but the Madras High Court in R. Selvaraj v. Jagannathan [1969] ACJ 1 expressed its inability to support this view. The Madras view is based on the ground that the Tribunal has been brought into for a specific purpose, namely, to try claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of use of motor vehicles.

5. Shri Bhargava also referred to the decision of this court in Yashwant Raj v. Mohanlal, AIR 1984 Raj 144 ; [1985] ACJ 23, which has been published in August issue and is incomplete. So far as this decision of this court is concerned, firstly, it is incomplete as to what is the judgment as a whole though the judgment was given on March 30, 1983, but, during the dictation of the judgment in court, the learned Member of the Bar could not produce the same. In the reporting, all that has been said is that the Tribunal has jurisdiction to try the composite claim in respect of bodily injury and damage to vehicle. Headnote (A) shows that this court had dissented from the view in R. Selvaraj v. Jagannathan [1969] ACJ 1. In the absence of the full text of the judgment, it could not be safe to make any comment and to understand its implications.

6. Contrary to it, Shri Mathur, appearing for the claimant, pointed out that the Punjab and Haryana High Court in Haryana Slate v. Pusa Ram [1979] ACJ 12, has held that the Tribunal had jurisdiction to award compensation for damage to the property. In this case, the following decisions were referred:

1. Smt. Jaswant Kaur v. Ratti Ram [1971] ACJ 31 (Punj),

2. Farsubhai Altapbhai Saiyed v. Dullabhbhai Bhagabhai Patel, AIR 1972 Guj 244; [1973] ACJ 149 (Guj).

3. B.S. Nat v. Bachan Singh [1971] ACJ 37 (Punj) ; AIR 1971 Punj 144.

4. Nokes v. Doncaster Amalgamated Collieries Ltd. [1940] AC 1014; [1940] 3 All ER 549 (HL).

5. Ratan Singh Karsanbhai Nakum v. Iasadkhan Gulamkhan [1975] ACJ 455 (Guj).

6. Shyambihari v. Shivsingh [1976] ACJ 95 (MP).

7. In para 5 of that decision, it has been observed as under :

'It was contended next that though the provisions of Section 110(1) were amended so as to authorise the Tribunal to decide claims respecting damage to property, yet no corresponding amendment was made in Sub-section (1)(a) of Section 110A which necessarily implies that the Legislature intended to authorise the Tribunal to try only composite claims of bodily injury and damage to property and not the latter claims simpliciter. We quite appreciate the ingenuity of the argument but find no substance in it. A bare reading of the amended Section 110(1) would show that the Tribunal is now authorised to adjudicate upon claims for compensation involving the death of, or bodily injury to, persons or damage to any property or both. The claim for damage to property simpliciter is, therefore, within the cognizance of the Tribunals. The Legislature probably did not deem it necessary to make any corresponding amendment in Section 110A because the word 'injury' is a word of very wide amplitude and includes both bodily injury and injury to property. According to the dictionary meaning, the word 'injury' means 'damage or hurt done or suffered by a person or thing'. As a general term, therefore, it means, hurt of any sort whether suffered by a person or a thing and the person whose property has been damaged in a motor accident would, therefore, be the person who has sustained the injury within the meaning of Clause (1)(a) of Section 110A of the Act.'

8. Shri Mathur further relied upon the decision of the Karnataka High Court in Karnataka State Road Transport Corporation v. Jyoti Constructions Mangalore [1979] ACJ 426 wherein a view has been taken that the Accidents Claims Tribunal had got jurisdiction to award compensation for damage to property alone. This decision also finds support from the Punjab view.

9. This view against finds support in the decision in Ranganathar Transports (P.) Ltd. v. Tanjore Co-operative Marketing Federation [1982] ACJ 199 (Mad) wherein the question before the High Court was whether Section 110F bars the jurisdiction of civil courts and, it was held that, yes, it bars because the application will be entertained by the Claims Tribunal constituted for the purpose.

10. I have given very thoughtful consideration to the rival controversy raised by the learned counsel for the parties and the arguments which were made quite at length at the Bar in this respect. In my considered opinion, on a plain reading of Section 110 and Section 95 of the Act, it is obvious that a claim petition can be entertained for compensation to damage caused alone even if the damage exceeds Rs. 2,000. It would not be necessary to repeat the entire discussion made in the above decisions but, I would like to mention that whatever might have been the controversy earlier but after the amendment of the Act, particularly Section 110 by which Clause (aa) of Sub-section (1), namely, 'by the owner of the property; or,' has been inserted in 1978, there remains no anomaly which could have been earlier. Section 95 of the Act provides for requirements of the policies and the limit of the liability and the damage to property is covered by Clause (d) of Sub-section (2) of Section 95 of the Act. It is true that earlier, it was Rs. 2,000 before the amendment of 1982 and now it has been made Rs. 6,000.

11. However, all this goes to show that the damage to property in an accident by a motor vehicle is covered by the jurisdiction of the Accidents Claims Tribunal and no valid objection can be taken to entertainment of such a claim, all alone, even though it may not be a composite claim.

12. The next point urged by Shri Bhargava was that the compensation could not have been for an amount of more than Rs. 2,000 as the law stood earlier, and Rs. 6,000, as per the amendment of 1982, which, according to Shri Bhargava, would not apply to the present case.

13. Here again, I am in agreement with Shri Mathur that, as held by the Bombay High Court in Sharda Prasad Singh v. Maharashtra State Road Transport Corporation [1984] ACJ 240 ; [1986] 59 Comp Cas 782 (Bom), the liability of the insurance company would be according to the risk covered in the policy and it cannot be restricted to the statutory limit enshrined in Section 95(2) and Section 96(2) of the Act. In substance, it has been held that the contractual liability, if more than statutory limits,would prevail and, the statutory liability is only supplementary and would not, in any way, curtail the contractual liability.

14. In my considered opinion, the provisions regarding compulsory insurance introduced by Sections 95 and 96 are provisions for providing minimum insurance for social welfare and for providing contingency of payment of compensation in case of accidents in the present day society, where automobiles perform a very important part in transporting man as well as property. However, they never intend to limit the liability of the insurance company if by mutual agreement in the form of policy, the insurance company had, on payment of premiums, taken upon themselves to pay the particular amount. The liability of the insurance company depends upon the premium which they take and the amount for which they insure or assure, as the case may be. The contractual liability is to be respected by the Tribunals subject to any provisions of law to the contrary.

15. In my considered opinion, any of the provisions of Section 95 and Section 96 of the Act nowhere curtails the liability of the insurance company but provides the requirement of the minimum liability or normal liability which should be covered by the insurance policy. In substance, there is no limit or ceiling for the liability.

16. It would be a fraud on the insured if the insurance company first insures the insured for a heavy amount by taking premium to that extent and, when the contingency of death or injury or damage to property happens, then comes with the jugglery or trickery of taking defence that though they have taken the premium of more amount or accepted the amount, the Legislature has provided the limit of the liability, and to commit this sort of trickery not to pay compensation for which they have taken the premium. The Legislature can never intend nor encourage much less protect and in no case provide shelter or limit to play such a tactic and trickery. In fact, the insurance company should not try to take such defence of jurisdiction before the Tribunal and they should volunteer to make payment by which a situation is created where insured persons get the amount of insurance sitting at their homes without being compelled or dragged to file claim petitions before the Tribunal and then undergo the ordeal for litigation for decades and decades together. It would only add insult to injury to an injured person or a person or persons who have lost either his parents or whose property has been damaged, to enter into this litigation for long periods and stand in the queue for knowing their fate of the trickery and jugglery after waiting for decades together, when the price and value of the money goes too down and the spiral of the price index goes high making it virtually of no use.

17. Shri Bhargava also argued that looking to the reasons given for compensation for the damage caused, the amount awarded is excessive because where the receipts have been disbelieved, yet an amount has been awarded. It is true that it is to some extent, the Tribunal has considered hard facts, like normal damages which have been incurred in taking the truck from one place to another place and making payments for repairs.

18. It should not be forgotten that Tribunals have been created to adjudicate compensation claims in such cases by summary enquiries and strict rules of evidence as are required in civil cases need not be expected and followed though, by and large, they may guide the Tribunal. Similarly, when the claim is required to be proved before the Tribunal, the doctrine of burden of proof beyond reasonable doubt as in criminal cases, cannot be applied.

19. In this view of the matter, the claim allowed by the Tribunal is based on a proper appreciation of evidence and calls for no interference in this appeal.

20. Shri Mathur wanted the amount to be increased but, I do not find any good ground to increase the amount. In my considered opinion, the adjudication and determination of compensation is fair, just, proper and reasonable and calls for no interference.

21. Shri Mathur further prayed that interest has not been allowed in the case by the Tribunal and he has filed cross-objection claiming interest. This request and prayer appear to be reasonable and interest at the rate of 12% on the amount awarded, viz., Rs. 14,841, is allowed from the date of the application till the date of realisation. The cross-objection filed by Shri Mathur is allowed to the above extent only.

22. In the result, this appeal fails and is, therefore, dismissed without any order as to costs. The impugned award is modified to the extent that the claimant would get interest at the rate of 12% on the amount of Rs. 14,841 from the date of application till the date of realisation. In all other respects, it is upheld.


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