Kannan Transport and Another vs Mrs. Maria Arokiam and Another

Ratnam, J.—This appeal, at the instance of the owner of the vehicle and the insurance company, is directed against the award of the Motor

Accidents Claims Tribunal (IV Additional Subordinate Judge), Madurai, in M.C.O.P. No. 14 of 1983. The respondents herein are the brother and

sister respectively of one Francis Gabriel. According to the case of the respondents, on 11.11.1982 at about 5 p.m. Francis Gabriel was riding his

bicycle slowly and observing the rules of the road from east to west on the left side of Madurai...Dindigul Road near Visalakshi Mills at Vilangudi

and his friend one Thavamani was seated on the carrier of the cycle. At that time, the bus belonging to the first Appellant bearing registration No.

TNA 1076, which was also proceeding from east to west, was driven rashly and negligently by its driver Murugan with out sounding the horn and

contrary to the road regulations and dashed against Francis Gabriel, who sustained grievous injuries and succumbed to them on the spot. Alleging

that the accident resulting in the death of Francis Gabriel was only on account of the rash and negligent driving of the bus belonging to the first

appellant by its driver, the respondents herein stated that taking into account the age of the deceased and his earnings they are entitled to be paid

compensation in a sum of Rs. 40,000. Referring to the amendments made to the provisions of the Motor Vehicles Act (hereinafter referred to as

''the Act'' by the Motor Vehicles (Amendment) Act, 1982 (No. 47 of 1982), the respondents claimed that the appellants were liable to pay a sum

of Rs. 15,000 as first mentioned compensation in accordance with Sections 92-A and 92-B of the Act and further stated that to secure this

compensation, they need not plead or establish any wrongful act on the part of the driver or the owner of the vehicle, as the right to claim such

compensation u/s 92-A of the Act is in addition to the other right to claim compensation referred to as the right on the principle of fault. Even in the

paragraph relating to the reliefs prayed for, the respondents stated that the appellants should be directed to pay a sum of Rs. 15,000 immediately

and should also be directed to pay compensation of Rs. 40,000 inclusive of the sum of Rs. 15,000 referred to as the first mentioned claim therein.

In the counter filed by the appellants, they resisted the claim for compensation made by the respondents on the ground that Francis Gabriel

suddenly darted across the road and in spite of the application of the brakes by the driver of the bus, the accident could not be averted and the

cycle driven by Francis Gabriel hit against the bus, as a result of which he lost his life and he accident was, therefore, attributable only to the

negligence pf the deceased. The appellants also disputed the entitlement of the respondents to the compensation amount of Rs. 40,000 claimed by

them on the ground that it was excessive and on the high side.

Before the Tribunal, on behalf of the respondents, Exs. P-1 to P-4 were filed and the first respondent and another gave evidence as P.Ws. 1

and 2, while, on behalf of the appellants, the driver of the bus alone was examined as R.W. 1. On a consideration of the oral as well as the

documentary evidence, the Tribunal found that the accident took place only on account of the rash and negligent driving of the bus belonging to the

first appellant by its driver R.W. 1. Considering the age of the deceased and also his earnings, the Tribunal determined the compensation payable

to the respondents in a sum of Rs. 15,300 comprising of Rs. 14,000 towards loss; of expectation of life and earnings, Rs. 1,000 towards loss of

love and affection and Rs. 300 towards funeral expenses. Having thus determined the compensation payable to the respondents, the Tribunal

proceeded to award compensation u/s 92-A of the Act in a sum of Rs. 15,000 on the footing that the accident had taken place on 11.11.1982,

after the coming into force of Section 92-A of the Act with effect from 1.10.1982 and finally determined the total compensation payable to the

respondents at Rs. 30,300, by totalling up Rs. 15,300 and Rs. 15,000 respectively and an award was passed accordingly directing the appellants

herein to pay to the respondents Rs. 30,300 with interest at 6% per annum, if the amount of compensation was not deposited by the appellants

within two months from the date of the award, It is the correctness of this that is questioned by the appellants in this appeal.

Learned Counsel for the appellants, referring to Sections 92A and 92B of the Act and in particular to Section 92-B(3), contended that the

Tribunal had failed to give effect to Section 92-B(3), (a) of the Act and had proceeded to award compensation on the principle of no fault and also

on the basis of fault and had merely added up the two amounts of compensation and this runs counter to Section 92-B(3), (a) of the Act and at

best, Tribunal could have passed an award only for a sum of Rs. 15,300 and, therefore, the award of the Tribunal required modification. Reliance

was also placed in this connection upon the decision reported in New India Assurance Co. Ltd. Vs. Ind Kaur and Others, On the other hand,

learned Counsel for the respondents made a feeble attempt to sustain the award of the Tribunal on its own reasoning, besides submitting that the

quantum of compensation awarded could be justified under the several heads of claim made by the respondents.

Before proceeding to consider the contention raised by learned Counsel for the appellants, it would be necessary to refer to Section 92-A, 92-

B and 92-E of the Act, which were introduced by Motor Vehicles (Amendment) Act, 1982 (47 of 1982). These sections run as follows:

92A. (1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle 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 or 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.

92-B. (1) The right to claim compensation u/s 92-A in respect of death or permanent disablement of any person shall be in addition to any other

right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of

this Act or of any other law for the time being in force.

(2) A claim for compensation u/s 92-A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as

possible and where compensation is claimed in respect of such death or permanent disablement u/s 92-A and also in pursuance of any right on the

principle of fault, the claim for compensation u/s 92-A shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in Sub-section (1), where in respect of the death or permanent disablement of any person, the person liable

to pay compensation u/s 92-A is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay

the first-mentioned compensation and-

(a) If the amount of the first mentioned compensation is less than the amount of second-mentioned compensation, he shall be liable to pay (in

addition to the first-mentioned compensation) only so much of the second mentioned compensation as is equal to the amount by which it exceeds

the first-mentioned compensation:

(b) If the amount of the first-mentioned compensation is equal to or less than the amount of the second-mentioned compensation, he shall not be

liable to pay the second-mentioned compensation.

92-E. The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for

the time being in force.

Under Section 1(2) of the Motor Vehicles (Amendment) Act, 1982 (47 of 1982), the amended provisions shall come into force on such date as

the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this

Act. By a notification dated 15.9.1982 of Ministry of Shipping and Transport (Transport Wing) S.O. 669(E) published in the Gazette of India,

Extraordinary, Part II, Section 3(ii) dated 15.9.1982, the 1st day of October, 1982 was appointed as the date on which the provisions of Sections

2 to 7, Sections 10 to 27 of the Motor Vehicles (Amendment) Act, 1982 (47 of l982) shall come into force. Sections 92-A, 92-B and 92-E of the

Act were introduced under Chapter VII-A of the Act by Section 11 of the Motor Vehicles (Amendment) Act, 1982 (47 of 1982) and in view of

the notification referred to earlier, Sections 92-A, 92-B and 92-E of the Act became operative and applicable with effect from 1.10.1982. The

accident in this case took place on 11.11.1982 and there can, therefore, be no dispute that Sections 92-A, 92-B and 92-E of the Act would stand

attracted to this case. Section 92-E of the Act declares the overriding effect of the provisions under Chapter VII-A of the Act. Section 92-A of

the Act fastens liability for payment of compensation jointly and severally upon the owner or owners of vehicles in respect of death or disablement

resulting from an accident arising out of the use of a Motor Vehicle or Motor Vehicles and such liability is declared to be in accordance with the

provisions of Section 92-A(1) of the Act. However, Section 92-A(2), referring to Section 92-A(1) of the Act, fixes the quantum of compensation

in a sum of Rs. 15,000 in respect of death and Rs. 7,500 for permanent disablement. u/s 92-A(3) of the Act, it is provided that it is unnecessary

for the claimant to plead and prove that death or disablement in respect of which the claim had been made was due to any wrongful act, neglect or

default of the owner or owners or of any other person. u/s 92-A(4) of the Act, it is provided that the claim for compensation u/s 92-A(1) of the

Act shall not be defeated by any wrongful act, neglect or default of the person in respect of whose death or disablement the claim is made and the

quantum of compensation recover-able should also be not reduced on the ground that the dead person or the permanently disabled person was

also responsible for the death or disablement, as the case may be. It is thus seen that u/s 92-A(1) to (4) of the Act, in cases of death or permanent

disablement, arising out of the use of a motor vehicle or motor vehicles, the dependents of the dead person or the injured person, as the case may

be, are entitled to recover from the owner or owners of the vehicles, compensation in a sum of Rs. 15,000 in respect of death and Rs. 7,500 in

cases of permanent disablement, without the need to establish any wrongful act, neglect or default of the owner or owners of the vehicles and the

compensation thus awardable is also not in. any manner affected either by wrongful act, neglect or default of the dead person or the person

permanently disabled or even on the basis �f the share of responsibility of the dead of injured person for such death or permanent disablement.

In other words, the purport of Section 92-A(1) to (4) is that without proof of any negligence on the part of the owner of the vehicle or of any other

person the dependants of a dead person or an injured person, will be entitled to recover compensation of Rs. 15,000 or Rs. 7,500, as the case

may be, without reference to any wrongful act, neglect or default on the part of the dead person or the person disabled and no reduction can also

be made in the quantum of compensation awardable on the ground of the responsibility of the deceased person or the person injured, for the death

or disablement. This clearly is a departure from the common law concept that a claimant should establish negligence on the part of the owner or the

driver of the vehicle before claiming compensation for death or permanent disablement. However, u/s 92-B(1) of the Act, the right to claim

compensation u/s 92-A of the Act has been declared to be in addition to any other right, such right having been referred to in the section as the

right on the principle of fault, to claim compensation in respect of death or disablement Under any other provision of the Act. Thus, Section 92-

B(1) of the Act recognises that the right to claim compensation u/s 92-A of the Act is really in the nature of an additional right, i.e., in addition to

the right to claim compensation under other provisions of the Act. Further, u/s 92-B(2) of the Act, it has been provided that a claim for

compensation u/s 92-A of the Act either in respect of death or permanent disablement, should be disposed of as expeditiously as possible. A

further provision in that section is to the effect that where a claim for compensation is made u/s 92-A of the Act and also u/s 92-B of the Act on

the principle of fault, the claim for compensation u/s 92-A of the Act, should have priority disposal. These provisions are intended only with a view

to afford immediate relief to the victims of motor accidents and also additional relief later, whether they relate to death or permanent disablement.

However, at the same time, provision has been made to the effect that in the case of death or permanent disablement, where the claim for

compensation is based on the principle of no fault u/s 92A of the Act and also on the basis of the right on the principle of fault u/s 92B(1) of the

Act, though such rights are not mutually exclusive, yet u/s 92B(3) of the Act, provision is made for taking into account and giving effect to the

compensation awardable on the principle of no fault, while awarding compensation based on the right on the principle of fault. Though u/s 92-B(1)

of the Act the right to claim compensation u/s 92 Act the Act is declared to be in addition to the right to get compensation on the principle of fault,

yet, the award of compensation u/s 92-A and u/s 92-B(1) of the Act is subjected to the provisions contained in Section 92(3) of the Act.

According to that where it is found that a person is liable to pay compensation u/s 92-A and also u/s 92-B(1) of the Act on the right on the

principle of fault, the person so liable to pay the compensation, shall pay the compensation award-able on the principle of no fault, which is

referred to as the first-mentioned compensation u/s 92-B(3) of the Act. The further provision is to the effect that if the compensation based on the

principle of no fault, is less than the amount of compensation based on the right on the principle of fault, the person, who is liable to pay

compensation, need pay only so much of the compensation based on the right on the principle of fault, as is equal to the amount by which it

exceeds the compensation on the principle of no fault, in addition to the compensation on the basis of no fault. In a case where the compensation

on the basis of the principle of no fault is equal or less than the amount of compensation based on the principle of fault, then the person liable to pay

compensation need not pay the compensation based on the right of the principle of fault. The object of the aforesaid provisions is clear in that

though the right under Sections 92-A and 92-B(1) of the Act are in the nature of supplementary or additional rights yet, the entire liability consisting

of the liability based on the principle of no fault and also the liability based on the principle of fault, should not be fastened upon the person liable to

pay compensation, but the compensation based on the principle of no fault, will have to be taken into account and adjusted, while determining the

quantum of compensation award-able finally. To put it differently, in a case where the compensation based on the principle of no fault is equal to or

less than the amount of compensation awardable on the right on the principle of fault, the person liable to pay compensation is not obliged to pay

the compensation based on the principle of fault. However, in a case where the compensation u/s 92-B(1) of the Act on the principle of fault is in

excess of the compensation u/s 92-A of the Act, then, it would suffice, if the person liable to pay, pays the compensation based on the principle of

no fault plus the difference between the compensation fixed on the principle of no fault. Applying this to the instant case, it is seen that the

appellants are liable to pay a sum of Rs. 15,000 by way of compensation to the respondents on the principle of no fault u/s 92-A of the Act and

there is no dispute regarding this. The Tribunal had fixed the quantum of compensation on the principle of fault u/s 92-B(1) of the Act at Rs.

15,300. u/s 92-B(3)(a) of the Act, in this case, the compensation on the principle of no fault is less than the compensation amount on the principle

of fault and, therefore, the appellants can be made liable, in addition to the compensation payable on the principle of no fault, to pay only the

excess amount of compensation on the principle of fault over and above the compensation payable on the basis of no fault and that would be a sum

of Rs. 15,000 plus (Rs. 15,300 minus Rs. 15,000, i.e., Rs. 300) Rs. 300, totalling to Rs. 15,300 in all. Even in the application praying for the

award of compensation, the respondents had stated that inclusive of the compensation awardable u/s 92-A of the Act, they may be awarded

compensation in a sum of Rs. 40,000. Unfortunately, this had not been noticed by the Tribunal while it proceeded to award Rs. 30,300 made up

of Rs. 15,000 u/s 92-A of the Act and Rs. 15,300 u/s 92-B(1) of the Act, totalling to Rs. 30,300 in all. The computation of the compensation by

the Tribunal is opposed to the provisions of the Act referred to earlier and cannot, therefore, be sustained.

In the decision reported in New India Assurance Co. Ltd. Vs. Ind Kaur and Others, the accident, out of which claim for compensation arose,

took place on 10.6.1982, while the amendments under Sections 92-A and 92-B of the Act became operative with effect from 1.10.1982 and in

spite of it, the Court proceeded to hold that the adjustment u/s 92-B of the Act should have been made available to the insurance company. In so

holding, Section 92-B(3)(a) of the Act has been interpreted in the light of the objects and reasons to the effect that the compensation payable by a

owner on the basis of wrongful act or negligence on his part, would be reduced by the compensation already paid by him. Though that decision

was rendered with reference to an accident that took place at a time when Section 92-A and 92-B of the Act were not made applicable, on the

facts of the present case, to which those provisions stand attracted, the interpretation put upon them permitting an adjustment, would be applicable.

Under those circumstances, the Civil Miscellaneous Appeal is allowed in part and the award of the Tribunal is modified and the liability of the

appellants to pay compensation to the respondents is fixed at Rs. 15.300 instead of Rs. 30,300 as fixed by the Tribunal, with interest at 6% per

annum, as provided by the Tribunal. There will be no order as to costs.