KAUSHALYA BAI Vs. RAM KISHAN KIRAR

JUDGEMENT

(1.) CLAIMANTS have filed the present appeal aggrieved by dismissal of their claim petition which was filed Under Section 166 of the Motor Vehicles Act, 1988. The Appellants claimed compensation for the death of Shambhu Dayal Sharma, in an accident dt. 11.6.1990, who was serving as a Forest Guard in the Forest Department and was posted at Kolaras district Shivpuri. Claimants averred in the claim petition that at about 6 -6:30 p.m. when the deceased was performing his duty at village Ropura, within the periphery of police station Tenduwa, non -applicant No. 2 Bhanu @ Chandrabhan son of Ramkishan Kirar was driving the tractor trolley in question, which was owned by non -applicant No. 1 Ramkishan Kirar, at that time, deceased Shambhu Dayal Sharma intercepted the tractor trolley to check it as it was carrying in it forest produce, wood etc. which were collected by committing theft in forest area. As soon the Forest Guard Shambhu Dayal Sharma came in front to note down the registration number of the tractor trolley, the driver drove it on being instigated by one Kalla sitting in the tractor, as a result of which deceased Shambhu Dayal Sharma was dashed by the tractor and suffered injuries on his legs, back, chest and at several other places. He succumbed to the injuries. The report of the incident was lodged. A case Under Section 302/34 IPC was registered against Bhanu @ Chandrabhan and Kalla. The accident was caused by Bhanu @ Chandrabhan. The tractor and trolley were insured with the New India Insurance Co. Ltd. The non -applicants; driver, owner and insurer were responsible jointly and severally to compensate the claimants. The deceased was earning Rs. 1100/ - per month and the dependency of family on him was Rs. 700/ - per month, Besides, the family also owned agricultural land. The agriculture operation also suffered owing to death of deceased Shambhu Dayal Sharma. A total sum of Rs. 1.17,200/ - was claimed as compensation. The non -applicants No. 1 and 2 in their joint written statement denied the accident. They contended that since the allegation of death is by way of murder, not by an act of rash and negligent driving, hence the claim petition is not maintainable and Government has also paid money by way of settling service benefits owing to death during the course of employment. The claim petition could not be tried Under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the 1988 Act') by Motor Accidents Claims Tribunal, The insurer; New India Insurance Co. Ltd. also raised preliminary objection on 25.8.1992 as to the maintainability of the claim petition before the claims Tribunal. The claims Tribunal without recording the evidence of the parties, allowed the preliminary objection and came to the conclusion that as the death was caused intentionally or at least with the knowledge that the act was likely to cause death, hence, for the tortious liability arising from the same, suit for damage could be filed before the Civil Court and the Motor Accidents Claims Tribunal had no jurisdiction to try the case.

(2.) AN application filed Under Section 140 of the 1988 Act for directing payment of interim compensation has also been dismissed by the impugned order. The present appeal has been filed by the Appellant assailing the order passed by the learned find Addl. Motor Accidents Claims Tribunal, Shivpuri on 2.9.1992 in Claim Case No. 26/90. on both counts. Shri K.N. Gupta, leanred counsel appearing for the Appellants/claimants submits that the Motor Accidents Claims Tribunal was having the jurisdiction to try the case since the death of Shambhu Dayal Sharma arises out of use of the motor vehicle. The intention was to commit theft of wood and to take away the material and also to prevent the seizure of the tractor trolley. Murder, as a matter of fact, was not intended. The same was caused if at all it was a case of murder in furtherance of other felonious act of theft and prevent the tractor trolley being seized. Thus, the murder is an accidental act. He further submits that as far as third party is concerned, it is an accident arising out of use of motor vehicle, irrespective of fact that murder in fact was intended. Hence, the Claims Tribunal has the jurisdiction. Learned Counsel alternatively submits that without recording the evidence the Claims Tribunal has erred in dismissing the Claim Petition. Shri R.D. Jain, learned senior counsel appeared as Amicus Curiae and has also supported the submissions raised by learned Counsel for the Appellants Shri K.N. Gupta. Both the counsel have pressed into service various decisions. Shri Jain submits that ratio of decision in Rylands v. Fletcher,, LR (1868) 3 HL 330 has been further advanced in various decisions and accident includes an act which may be intended or caused by sheer negligence. Thus, the Claims Tribunal had the jurisdiction to try the case. Hence, the impugned order deserves to be set aside. Shri B.N. Malhotra, learned Counsel appearing for Respondent No. 3 has submitted that the allegation in the claim petition makes out a case of an intentional murder, thus, the insurance company cannot be held liable for such an international murder and it cannot be termed as an accident within the purview of the 1988 Act and liability, if any, is under the law of torts for the act and is triable by a civil court and not by Motor Accidents Claims Tribunal in a claim petition under the 1988 Act. Law of Torts is a developing law. The concept of 'strict liability', 'absolute liability' and 'fault liability', give rise to action in tort. The difference has been explained by their Lordship of the Supreme Court in case of Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, : 1994 ACJ 902 between 'strict liability', and 'fault liability' arises from presence and absence of mental element. A breach of legal duty wilfully or deliberately or even maliciously is negligence emanating from fault liability but injury or damage resulting without any intention yet due to lack of foresight, etc., is strict liability. Since the duty is the primary yardstick to determine the tortious liability its ambit keeps on widening on the touchstone of fairness, practicality of the situation, etc. Their Lordship further observed that truly speaking, entire law of Torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever -expanding and growing horizon of tortious liability. The liberal approach to tortious liability by courts is more conducive. In Read v. J. Lyons & Co. Ltd.,, (1946) 2 All ER 471, it was observed that damage caused by escape of cattle to another land was a case of pure trespass constituting a wrong without negligence. Thus negligence is only descriptive of those sum total of activities which may result in injury or damage to the other side for failure of duty, both legal or due to lack of foresight and may comprise of more than one concept known or recognised in law, intended or unintended. Their Lordship held that the rule in Rylands v. Fletcher,, LR (1868) 3 HL 330, has not been modified by the Supreme Court in Modern Cultivators case, : AIR 1965 SC 17.

(3.) FURTHER statutory change has taken place in the Motor Vehicles Act, 1988 by insertion of Section 163A, which provides that (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent diablement due to accident arising nut of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and it is further provided under Sub -section (2) of Section 163A that in any claim for compensation under Sub -section (1) the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of other person. Thus, the Motor Vehicles Act, 1988 as a matter of fact gives a go -by to the general law and that stands superseded by the non -obstante clause provided Under Section 163A. Section 163B further provides that a person is entitled to claim compensation under Section 140 and Section 163A of the 1988 Act has given option of filing claim under either of the said sections and not under both. However, the principle of proving wrongful act, neglect or default of the owner stands ousted under both the provisions. No proof of negligence is required. No wrongful act is required to be established. What is required is that accident took place resulting into death or disablement arose, out of use of motor vehicle. The element of intention has no role to play Under Section 163A and Section 140 of the 1988 Act. Section 165(1) of the 1988 Act provides for constitution of Motor Accidents Claims Tribunals for adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damage to any property of a third party so arising, or both. Explanation to Section 165 sets at rest all the doubts that claims for compensation under Section 140 and 163A of the 1988 Act are covered under the provision. Section 166 of the 1988 Act provides the method of filing an application for compensation arising out of an accident. Sub -section (4) of Section 166 contains provision that the Claims Tribunal shall treat any report of accidents forwarded to it under Sub -section (6) of Section 158 as an application for compensation under this Act. Thus, it is not necessary for claimant to file an application formally for compensation if the report of the accident has been forwarded to the Claims Tribunal under Sub -section (6) of Section 158 of the 1988 Act. Sub -section (6) of Section 158 was inserted on 14.11.1994. When a police officer has recorded any information regarding any accident involving death or bodily injury to any person, a duty is enjoined on the officer incharge of the police station to forward a copy of the same within thirty days from the date of recording of the information or, as the case may be, on completion of such report, to the Claims Tribunal having jurisdiction and a copy thereof, to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer. The object of the change is to provide a speedy mode of enforcing liability. The period of limitation has also been omitted. The common law reqirement of the negligence to be established stands superseded to the extent provided Under Section 140 and 163A of the 1988 Act. Proof of negligence is irrelevant and negligence, wrongful act is not required to be established in such cases and in a claim petition, person has option of choosing 'no falut liability' Under Section 140 or compensation on structured formula as provided Under Section 163A and the Claims Tribunal established Under Section 165 has a jurisdiction to deal with such claims by virtue of explanation to Sub -section (1) of Section 165. The application which is required to be moved Under Section 166 for compensation arising out of an accident of the nature specified in Sub -section (1) of Section 165 may be made by the persons mentioned in Sub -section (1) of Section 166. Thus, an application filed Under Section 166, the Tribunal is empowered to deal with the claim in the same application, Under Section 140 or Section 163A. Proviso to Sub -section (2) of Section 166 further provides that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. In case of Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbal Prabhatbhai and Anr., : AIR 1987 SC 1690 in para 8 their Lordship have laid down thus ;