SEC. 140] LIABILITY WITHOUT FAULT IN CERTAIN CASES 140. Liability to pay compensation in certain cases on the principle of no fault.-.
(l) Where 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 subsection (1) in respect of the death of any person shall be a fixed sum of [fifty 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 [twenty-five thousand 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.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163-A.]
Notes on Clause - 140 provides for payment of compensation in certain cases on the principle of no fault
(Legislative Changes.-Section 140 corresponds to Section 92-A of the Motor Vehicles Act, 1939.)
S Y N 0 P S I S1. Accident2. Award of compensation.
3. Compensation for no fault liability.
4. Defences available to insurer.
5. Determination of quantum of compensation on no fault liability principle.
6. Dishonour of cheque.
7. Injury.
8. Interim award.
9. Interim compensation.
10. Interim relief.
11. Liability of insurer.
12. Negligency of victim.
13. No fault liability.
14. Object of.
15. Permanent disablement.
16. Retrospective application.
17. Scope.
18. Summary proceeding.
19. Use of motor vehicle.
1. Accident - If a claim arises under both the Acts, there is no doubt that the liability of the insurer is wider and not restricted to cases of insolvency etc. mentioned in Section 14 of the Workmen's Compensation Act, 1923. When a claimant's case arises under both Acts, but he files a claim before the Commissioner under the Workmen's Compensation Act, 1923, the Commissioner can, because of Section 110-AA read with Section 95(5) make the Insurer liable even the in situations not covered by Section 14 of the Workmen's Compensation Act, 1923.
2. Award of compensation - Where the vehicle involved in accident was insured by two different insurer's, therefore, award of compensation against two sets of insurers to the extent of 50% each is liable to be sustained.
Where defences were available to the insurance company but it was not exempted under this circumstance, it was held that summary proceeding under Section 140 should be in existence.
If the injury is simple fracture only, person receiving such injury would not be entitled to compensation.
3. Compensation for no fault liability - The Claims Tribunal has power to allow interest on compensation awarded in view of Section 140 of Act.Compensation for no fault liability cannot be denied to claimant who became permanently disabled in an accident.
The Tribunal is not justified in awarding compensation in excess of, statutory amount in case of a fatal accident.
4. Defences available to insurer - Claims Tribunal can direct insurer to make payment of interim award under no fault liability even without deciding the validity of driving licence of driver of offending vehicle.
Defence under Section 149(2) of Act are available to insurer against a claim under no fault liability under Section 140 of the Act.
5. Determination of quantum of compensation on no fault liability principle - An award of compensation for no fault liability in order to be enforceable depends upon making an independent claim on that ground and the Tribunal is required to dispose of that claim by passing a separate award even before the normal compensation is determined. Therefore, the crucial date of determining the quantum of compensation to be awarded as "no fault" liability is the date on which the Tribunal or the Court is required to award compensation for no fault liability though the event for which compensation is to be measured has taken on an antecedent date.
The provisions of Section 92-A of old Act and Section 140 of 1988 Act are beneficial legislation provided for an immediate aid to the claimant on account of death or permanent disablement in an accident. No new right or liability under Section 140 has been created and merely the quantum of compensation to be awarded by the Court on no fault principle has been enhanced. By enacting Section 144, the Legislature further made its intention clear that after the commencement of the Act, provisions of Chapter X will hold the field for governing the award of compensation by the Courts on the basis of no fault liability principle, Section 144 clearly spelt out a contrary intention. Viewed from this angle, provisions of Section 6 of the General Clauses Act to not impede grant of enhanced compensation under the provisions of Section 140 even in case where accident has occurred prior to the commencement of the New Act.
Section 140(l) of the Motor vehicles Act provides that when 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 vel-dcles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance'with the provisions of the section. The amount of compensation is specified in sub-section (2) of Section 140. Sub-section (3) provides that in any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish thatthe 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. Sirnflarly, under sub- section (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 of permanent disablement the claim has been made.
The provisions of Section 140 have been interpreted in several decided cases. In New India Assurance Coinpany Ltd. v. Minguel Lourenco Correia and others, this Court while interpreting the corresponding provisions of Section 92-A of the Motor Vehicles Act, 1939, held that the questions which arise before the Court are whether (a) a vehicle had been involved in an accident; (b) a person died or sustained permanent disablement as a result of such accident; and (c) with whom the vehicle was insured. This is so, it was held, because irrespective of any fault, the legal representatives of the dead person or the person who had suffered a permanent c4sablement are to be given quick and effective temporary relief. While the Insurance Company may raise such defences as are available in law, those defences have to be dealt with in the course of the proceedings for compensation under Section 110 of the erstwhile Act. In Nezv India Assurance Co. Ltd. v. Savitribai Tukaram Londhe, 1997 (1) Mh Q 315: 1997 (2) TAC 219 (Bom).
6. Dishonour of cheque - In regard of dishonour of a cheque, it was held that insurance company was liable for no fault liability because relevant circum§tances are shown in the fact..
7. Injury - Where a person was injured badly and also suffered the permanent disablement, under this circumstance it was held that claimants are entitled to get compensation.
8. Interim award - Tribunal may direct the insurance company to indemnify the owner only when the relevant conditions are in existence, but owner of vehicle should establish his defence after evidence.
Where an order was passed under Section 140, it was held that such type of order is an award and appeal against it is maintainable.
In this case it was held that Tribunal is under its legal obligation, means suo inotu to perform his activities, and application send to this purpose is valid.To award interim compensation, requirement under no fault liability are -
(i) some proof about the accident;(ii) involvement of the vehicle in accident;
(iii) ownership of vehicle.
Grant of interim award by Tribunal under no fault liability to heirs of deceased cannot be directed to be deposited in a Bank for a fixed period of 10 years in the name of 3 claimants.
Where there was prima facie evidence regarding involvement of Mail Van in an accident causing death of a person then the claimants are entitled to interim award under no fault liability
9. Interim compensation - Considering the circumstances regarding various liabilities of claimant, award of interim compensation by Tribunal directed to be disbursed to claimant instead of depositing the same in Bank.
Though the death of deceased was not caused by any motor accident, the claim petition before Claims Tribunal is maintainable as the insurer is liable to pay interim compensation.
When the deceased sustained bullet injuries and died in an accident arising out of use of motor vehicle, then Tribunal rightly passed interim award.
Revision filed by insurer against order of Tribunal rejecting review application against award of interim compensation by Tribunal not maintainable.
10. Interim relief - In this case it was held that granting the interim award Tribunal is required to record primafacie satisfaction, risk involved and Tribunal should also consider any breach of material condition of the policy of insurance.
11. Liability of insurer - Failure of insurer to establish breach of conditions of policy wilfully makes them liable to pay compensation.
Where claim was made under Section 163-A and it was explained in enlarged form under this circumstance, it was held that general damages should be awarded.
The claimant, claiming compensation need not establish absence of negligence.
Where the student passengers in a lorry accident died, and owner of vehicle breached the terms and conditions of policy then even on no fault liability, insurer is not liable for which owner alone is liable for.
Where the liability, other than statutory liability is not covered by insurance policy, the liability under Section 92-A cannot be saddled on insurer.
The insurer would be liable to pay interim compensation under no fault liability along with fault liability.
Where negligence of truck driver not established and claim under fault liability was dismissed then insurer is liable under no fault liability.
Since the risk of insured is not covered by policy, therefore, insurer is liable to compensate the insured towards the risk of third party
Where the Tribunal awarded interim award to widow of deceased, owner insured under no fault liability, then insurer cannot raise defence that insured is not covered by policy at the time of passing of interim award.
12. Negligency of victim - While awarding compensation by Tribunal, the Tribunal has no job, to see the negligency of victim.
13. No fault liability - Order, rejecting claim for compensation by legal representatives of deceased on the ground that accident took place due to fault of driver, is not sustainable.
When the claim of compensation is based on no fault liability then negligence of any of parties, not required to be pleaded.
Even in absence of any legal representatives of both deceased, owner and driver of vehicle, the insurer cannot deny its liability.
When the ownership and involvement of vehicle in an accident proved on the basis of materials available on record which resulted in death of deceased then compensation awarded requires no interference.
Where Rs. 50,000/- awarded as compensation under no fault liability to claimants then direction of Tribunal for investing 90% in fixed deposit not sustainable.
Where death of two persons travelling in a bus was accidental out of use of motor vehicle then claimants are entitled to no fault liability compensation.A victim of an accident occurred, arising out of use of motor vehicle entitled to compensation unless any of exceptions would apply.
The claimants are entitled to receive Rs. 50,000/- as interim award under no fault liability for death of deceased driver even due to his own negligence.
Where the factum of accident causing death admitted due there was no dispute regarding legal representive then interim award, awarded cannot ordered to be deposited in fixed deposit.
Failure of owner of offending vehicle to prove that he had not violated terms and conditions of policy, makes him also liable.
Even under no fault enquiry, insurance company cannot be saddled with the amount of compensation when risk to third party is not covered being pillion rider.
The expression 'third party' does not cover the pillion rider of the motor vehicle. The risk of pillion rider third party is not covered under the policy of Insurance and, therefore, even under No fault liability the insurance company cannot be saddled with the amount of compensation to be paid to the heirs of the deceased. The Division Bench of this court has held in case of New India Assurance Co. Ltd. v. Babasaheb Anna Mali and others, that a pillion rider on a motor cycle, which is covered under third party insurance policy, is not a third party and, therefore, insurer cannot be saddled with no fault liability in respect of the pillion rider.
This court has taken a view in New India Assiirance Co. Ltd. v. Smt. Savitribai Titkarani Londhe and others, (supra) that if, on face of insurance policy, the insurance company is not liable then, even under Section 92-A of the MX Act, 1939, insurance company cannot be fastened with the liability. Similar view is taken in New India Assitrance Co. Ltd. v. Gajanan Rambhau Mohite and another, (supra).
The Supreme Court has held in New India Assitrance Co. Ltd. v. Mandar Madhav Tainbe and others, referred supra, that learners driving licence is not an valid licence.
15. Permanent disablement - Where doctor opined that claimant suffered nnoo fracture reported but he had sustained disablement permanently. Therefore, he is entitled to get reasonable relief.
The power of limb was impaired by 60%, prima facie it was made out that claimant had suffered permanent disability. He was, therefore, entitled to claim interim compensation.
16. Retrospective application - When in claims for two deaths in accident, Section 140 of Act is retrospectively applicable then claimants is entitled to Rs. 15,000/- for each death as the fixed minimum liability.
17. Scope - From reading the provision of Sections 140,141,142,143 and 144 it is clear that right to claim compensation under Section 144 is in addition to other rights under the Act.
18. Summary proceeding - Where defences available to the insurance company and insurance company was not exempted from it's liability, under this circumstance it was held that this question is not to be considered in summary proceeding under Section 140.
19. Use ofmotor vehicle - When a truck dashed to almost stand still jeep with even running engine there it is covered under expression use of motor vehicle.