KUNJURAMAN NAIR Vs. MANAGING DIRECTOR NESAMONY TRANSPORT CORPORATION LIMITED NAGERCOIL KANNIYAKUMARI DISTRICT

JUDGEMENT

(1.) THIS appeal arises out of the judgment passed by the motor Accidents Claims Tribunal, Kuzhithurai, dated 27. 7. 1990 dismissing the petition filed under Sec. 110 of the Motor Vehicles Act.

(2.) THE case of the petitioner is as follows: On 9. 9. 1987 at about 4. 45 p. m. , the petitioner and two others were waiting in the Bus stop at Methappangodu to go to Thoduvetti, and at that time Route No. 106-B bearing registration No. TMN. 2915 belonging to the first respondent came and stopped there. Passengers were alighting from the bus. When the petitioner was alighting from the bus, the driver had taken the bus suddenly before any signal was given to him by the second respondent. THE petitioner fell down, hit at the electric post nearby and sustained injuries. He was given treatment in the Government Hospital , Kuzhithurai and then sent to nagercoil for treatment. He had gone to the Medical College Hospital at Trivandrum after discharge and is taking treatment. THE petitioner is unable to conduct his life on account of the accident. He has got a wife and three children. THE left shoulder of the petitioner has come down and therefore he could not do his duty of rubber sheath. THE petitioner prays a sum of Rs. 45,000 being paid as compensation as per the details in the petition.

(3.) OUR High Court has elaborately considered the object and scope of Sec. 92-A of the Act in the decision reported in Nandakumar v. Managing Director, Thanthai Periyar Transport Corporation (1992)1 L. W. 25. Their Lordships have observed as follows: 'it is true that on a reading of Clause (4) of sec. 92-A of the Motor Vehicles Act, at the first blush it appears that even though the petitioner-claimant alone was negligent he could be awarded compensation under the said clause. On a deeper consideration it is clear that in such a case, no compensation could be awarded to the claimant even under sec. 92-A of the Act was introduced only because there may be difficult on the part of the claimants to prove the negligence of the driver of offending vehicle. That is why, even though they are unable to prove the said negligence, sec. 92-A of the Act was introduced to say that in case of accident resulting in death or permanent disablement, the minimum compensation prescribed therein must be given despite the fact that the claimant was unable to prove the negligence of the driver of the offending vehicle. The expression used in clause (4) of Sec. 92-A of the Act is'claim for compensation. " 'a person can make a claim for compensation against another only when the other person is at fault and not when he is at fault. May be in view of certain circumstances, he is unable to prove the fault on the part of another person, from whom he claims compensation. Only in such a case, Sec. 92-A of the Act steps in and says that despite the abovesaid fact of inability to prove the negligence of the other party, he will be entitled to a particular minimum compensation. Social justice is thereby sought to be rendered to him since in view of certain justifiable circumstances, he is unable to prove the negligence on the part of the other person. The only interpretation that could be put on Clause (4) of Sec. 92-A of the Act is that even where there is some negligence or default on the part of the person in respect of whose death or permanent disablement, the claim has been made for compensation from the other party, whose negligence, he is unable to prove, shall not be defeated. In other words, the said clause (4) only negates totally the concept of contributory negligence. It must be noted here that only to the above extent, the substantive law has been modified in this regard and not to the extent that even where the deceased or the injured, as the case may be, is negligent and not the other party the former can claim compensation. Where the former is negligent, there is no scope at all for his claiming any compensation from any other party for his own fault. That is the substantive law. That part of the substantive law has not at all been modified by Sec. 92-Aof the Act. Such a modification cannot be the intention of the legislature since it is totally contrary to the general law of torts and basic principle of law.' The above decision thus makes it abundantly clear that where the injured person or the deceased is found to have been clearly negligent, no compensation can be awarded under the principle of'no fault liability'compensation as laid down in Sec. 92-A (4), since Clause (4) negatives totally the applicability of concept of contributory negligence. When we consider this case on hand, under the above principle, we are led to the conclusion that the dismissal of the petition filed by the petitioner for compensation, by the tribunal is well founded and does not call for any interference by this Court. In that view, I am of opinion that this appeal is without merits and is liable to be dismissed and accordingly dismissed.