New India Assurance Co. and another vs Lekhraj Singh Verma

U. S. Tripathi, J.—This appeal has been directed against the judgment and award dated 21.2.1990 passed by Motor Accident Claims Tribunal/IInd A.D.J.. Meerut in Motor Accident Claim Case No. 27 of 1988 awarding a sum of Rs. 80,000 along with interest at the rate of Rs. 12% per annum on account of injury sustained by claimant in motor accident.

On 18.10.1985, claimant, Ex. Captain of Military Service was coming from Begum Bridge side on a cycle and going towards Shastri Nagar in Meerut city. At about 12 noon near Prayag Nursing Home, Car No. U.H.O. 131 owned by appellant No. 2 and insured with appellant No. 1 due to rash and negligent driving of the driver dashed against the claimant, due to which he fell down on the road and sustained injuries. He was treated in the hospital till 14.12.1985, but still could not be cured. His hip bone was fractured and one of leg had shortened by 2- 1/2 inches. He also took prolonged treatment in B.H.U. and another hospital.

The claimant filed claim petition for Rs. 3,05,000.

The Tribunal on considering the evidence of the parties held that accident took place due to rash and negligent driving of the car in question and there was no negligence on the part of the claimant. On the quantum of compensation, the Tribunal awarded a sum of Rs. 5,000 for medicines purchased by the claimant. Rs. 5,000 for medicines to be taken in future. Rs. 5,000 for mental shock. Rs. 10,000 for pain and mental pain, Rs. 50,000 for pains and suffering and Rs. 5,000 incurred in special diet, total Rs. 80,000.

The above finding has been challenged in this F.A.F.O.

Heard the learned counsel for the appellants and perused the judgment.

The learned counsel for the appellants contended that there was no negligence on the part of the driver of the car and, therefore, claimant was not entitled to any compensation. The Tribunal on considering the evidence of the parties has recorded a finding of fact that accident took place due to rash and negligent driving of the driver of the car. Assuming that there was no negligence, according to recent judgment of the Apex Court in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, , it must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use motor vehicles. There are other premises for such cause of action. A question was posed in the said case even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner he made liable for damages to the person who suffered on account of such accident? Held, that this question depends upon how far the Rule in Rylands v. Fletcher can apply in motor accident eases. The said Rule is summarised as below :

"The true rule of law is that the person who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which Is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or perhaps, that the escape was the consequence of vis major, or the act of Cod ; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."

It was further held that "no fault liability" envisaged in Section 140 of the M.V. 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 the claimant should not gel 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 M.V. Act permits that compensation paid under ''no fault liability'' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the M.V. 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."

In this way, the claimant was entitled to claim compensation even in the absence of negligence on the part of owner or driver of the vehicle.

Regarding compensation, it was contended that the Tribunal had doubly allowed the compensation on same count. I have gone through the judgment of the Tribunal and found that compensation has rightly been allowed on separate counts, which are permissible under Motor Vehicles Act.

There is no force in the appeal and the appeal is dismissed accordingly.

Stay order dated 27.8.1999 stands vacated.