Chandmal vs Laxminarayan and Another

N.K. Mody, J.—Being aggrieved by the award dated 24.3.1999 passed by First M.A.C.T., Mandsaur in Claim Case No. 167 of 1998 whereby the claim petition filed by the appellant was dismissed, the present appeal has been filed.

Short facts of the case are that appellant filed a claim petition before the learned Tribunal for realization of Rs. 1,80,000 alleging that on 2.11.1997 when the appellant was going to his dhaba (hotel) on a motorbike he met with an accident with a Tempo bearing registration No. MP 04-F 9785 which was being driven rashly and negligently by respondent No. 1. It was also alleged that offending Tempo was owned by respondent No. 2 and was insured with respondent No. 3 at the relevant time. It was alleged that respondent No. 1 turned Tempo towards right side without any indication, with the result, appellant who was going behind Tempo, collided with Tempo. It was alleged that due to accident, the appellant sustained grievous injuries. Appellant was brought to District Hospital, Mandsaur where it was found that there were compound fractures in left leg of the appellant. It was alleged that criminal case was registered against the respondent No. 1. On the basis of these allegations, claim petition was filed.

The claim petition was contested by the respondents including respondent No. 1. In the written statement it was submitted by the respondent No. 1 that at the relevant time respondent No. 1 was dropping the passengers at City Kotwali and offending Tempo was stationary. It was alleged that it was rash and negligent driving of the appellant who dashed the stationary Tempo. Apart from this, appellant was in drunken condition. It was prayed that claim petition be dismissed.

On the basis of pleadings of parties, learned Tribunal framed the issues, recorded the evidence and dismissed the claim petition holding that appellant himself was responsible for the accident and also on the ground that appellant was having No. driving licence. However, it was held that since the appellant has sustained injuries, therefore, in case the claim petition would have been allowed, the appellant would be entitled for a sum of Rs. 11,600 as compensation. It is this award, against which the present appeal has been filed.

The learned Counsel for appellant submits that learned Tribunal committed error in dismissing the claim petition. It is submitted that on account of rash and negligent driving of Tempo itself, the accident took place. It is submitted that immediately thereafter, criminal case was registered against the respondent No. 1 wherein it is specifically mentioned that it was rash and negligent driving on the part of respondent No. 1. Apart from this, learned Counsel submits that in a motor accident if appellant has sustained injuries then appellant is entitled for compensation u/s 140 of the Motor Vehicles Act on account of No. fault liability. It is submitted that learned Tribunal has dismissed the claim petition on the ground that the appellant has pleaded in the claim petition that the offending Tempo was going ahead the motorbike while in the evidence, appellant has stated that Tempo was coming from back side. Learned Counsel submits that as per Section 140(3) of the Motor Vehicles Act, claimant is not required to plead and establish that the permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

Reliance was placed on a decision in the matter of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, , wherein the Hon''ble Apex Court has observed that:

(19)No fault liability'' envisaged in Section 140 of the Motor Vehicles Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under ''no fault liability'' can be deducted from the final amount awarded by Claims Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.

Learned Counsel further submits that looking to the injuries sustained by the appellant, the amount calculated by the learned Tribunal is on lower side.

Learned Counsel for respondent No. 2 submits that since the accident occurred because of rash and negligent driving of the appellant himself, therefore, learned Tribunal has rightly dismissed the claim petition. In the alternative, it is submitted that amount of compensation calculated by learned Tribunal is just and proper.

After taking into consideration all the evidence on record, this Court is of the view that the learned Tribunal committed error in dismissing the claim petition. Only on the ground that appellant was not possessing the driving licence, it cannot be said that appellant was negligent for the accident. Since the appellant sustained a compound fracture and criminal case was registered against respondent No. 1 then and there and by the same Tempo appellant was shifted to the hospital, therefore, it was a fit case where the learned Tribunal ought to have awarded minimum compensation on account of No. fault liability. So far as compensation is concerned, learned Tribunal has assessed the amount at Rs. 11,600 which seems to be on lower side. Since the appellant sustained compound fractures and was hospitalised, therefore, the amount of compensation cannot be in any case less than Rs. 25,000 which the appellant is entitled on account of No. fault liability.

In view of this, the appeal stands allowed. The award passed by the learned Tribunal is set aside holding that the appellant is entitled for a sum of Rs. 25,000 as compensation which shall carry interest at the rate of 6 per cent per annum. For this amount, the respondents shall be liable jointly and severally. No. order as to costs.