KAMLA DEVI Vs. KISHANCHAND

JUDGEMENT

(1.) THIS appeal under Section 110-D of the Motor Vehicles Act is against an award made by the Motor Accident Claims Tribunal allowing a sum of Rs. 4,000/-as compensation payable to the appellants by the second respondent on account of the death of one Gurmukhdas, who was knocked down by a jeep. The jeep though owned by the first respondent, was borrowed on the date of the accident by the second respondent. The accident took place when the second respondent who was himself driving the jeep was going to the station to receive his guest. It has been found by the Tribunal that the accident took place as a result of the negligence of the second respondent in driving the jeep. As at the time of the accident the jeep was not being used for the purpose of the owner, the first respondent was absolved from liability and that finding is not challenged before us. The grievance of the appellants in this appeal is that the amount of compensation awarded by the Tribunal is inordinately low. As there is no cross appeal, the entire subject-matter involved in this appeal is the quantum of damages.

(2.) THE contention of the learned Counsel for the appellants is that the Tribunal in awarding Rs. 4,000/- as compensation under Section 110-B of the Motor Vehicles act has not correctly followed the principles settled by the Courts for assessing compensation under Section 1-A of the Fatal Accidents Act and the amount awarded by the Tribunal is inordinately low.

(3.) ON the contention raised by the learned counsel the first question that arises is: what is the law which the Tribunal must follow in assessing compensation under section 110-B of the Motor Vehicles Act ? we have come across three cases in which it has been held that a claim for compensation under the Motor Vehicles Act bears no connection to claims that can be made under the Fatal Accidents Act, 1855 and the Tribunal need not follow the principles laid down by Courts for determining compensation under that Act. The three cases are: Mohd. Habibulla v. K. Sitammal, 1966 Acc. C. J. 349 (Mad), veena Kumari Kohli v. Punjab Roadways, 1967 Acc. C. J. 297 (Punj) and Ishwar dcvi v. Union of India, AIR 1969 Delhi 183. The reasoning in these cases is that having regard to the increase of motor accidents, the Legislature enacted Sections 110 to 110-F of the Motor Vehicles Act providing a self-contained code for adjudication of claims for compensation made on behalf of victims of a motor accident, that these sections do not make any reference whatsoever to the Fatal accidents Act and that Section 110-B of the Motor Vehicles Act empowers the tribunal to award compensation "which appears to it to be just", words which are wider in scope than the words used in Sections 1-A and 2 of the Fatal Accidents act. We respectfully differ. The group of Sections 110 to 110-F of the Motor Vehicles act deal with the constitution of Claims Tribunals "for the purpose of 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", and lay down the procedure and powers of these Tribunals. These sections also provide for an appeal to the High Court and bar the jurisdiction of Civil Courts "to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal. " Nothing is said in these sections about the basis and extent of liability or even about persons who can be subjected to liability. The sections do not deal with liability at all; they only provide a new mode of enforcing the liability in respect of accidents involving death or bodily injury which before the constitution of the Tribunals was being enforced by Civil Courts. The object of these sections is to provide a cheap and speedy mode of enforcing liability arising out of use of Motor Vehicles. The remedy is made cheap by providing for application for compensation in place of suit and thus obviating the necessity of payment of court-fees. It is made expeditious by empowering the Tribunals to follow summary procedure and by cutting down second appeals. The sections are a complete code in so far as they deal with the constitution, procedure and powers of the Tribunal and appeals against the awards made by the Tribunal. But these are all matters related to the mode of enforcement of liability. The sections do not enter the field of the law of liability which still remains to be governed by the ordinary law of Torts and the Fatal Accidents Act, 1855 and it is for this reason that the sections do not refer to them at all. The power to make an award "determining the amount of compensation which appears to it to be just" conferred on the Tribunal, does not create any new basis or extent of; liability, The tribunal must determine the amount of compensation according to the substantive law of liability already in force. The words "which appears to it to be just" only recognise that in assessment of compensation the Tribunals like Courts will have certain measure of discretion. It is well known that the duty of assessing compensation in cases of personal injury or fatal accidents, though governed by well settled rules, is a difficult one as many speculative and uncertain factors have to be taken into account. Within the bounds of the law and the rules established by judicial decisions, which are themselves part of the law, there is a certain area where the Courts must exercise discretion of their own and assess the final figure with a sense of justice to both the parties. It is in this sense that it can be said that the amount of compensation is what the Courts think just. Indeed, in the last clause of Section 1-A of the Fatal Accidents Act the words "as it (the Court) may think" are used in that sense. The same idea is reflected in Section 110-B by which the Tribunal is empowered to determine the amount of compensation "which appears to it to be just. " The section is in no way intended to give a go-by to the basis and limit of liability fixed by the substantive law. In case of fatal accidents, whether arising out of the use of motor vehicles or otherwise, the basis and extent of liability are determined by the substantive law contained in the Fatal Accidents act, 1855. Liability under Section 1-A of the Act to compensate [he family of the deceased arises only when the death is caused by such wrongful act neglect or default which (had the death not ensued) would have entitled the injured to maintain an action and recover damages. The extent of this liability under Section 1-A is that an action under that section can be brought only for the benefit of the named dependants who are to be awarded damages proportioned to the loss suffered by them as a result of the death. Section 2 of the Act permits the joinder in an action under Section 1-A a claim for the benefit of the estate for recovery of any pecuniary loss to the estate of the deceased occasioned by the wrongful act, neglect or default. In our opinion, a Claims Tribunal inquiring into a claim for compensation under Section 110-B of the Motor Vehicles Act in respect of a fatal accident arising out of the use of a motor vehicle is bound to apply the law as contained in the Fatal Accidents Act. For example, it cannot award compensation unless the death was caused by wrongful act, neglect or default, Similarly, it can award only such compensation which bears due relation to the loss sustained by the defendants and/or which is admissible to the estate of the deceased under section 2. The language used in Sections 1-A and 2 of the Act has been expounded in a series of cases by highest authorities. That exposition of the language is now part of the law and the Tribunal will be bound to follow that also. We are conscious that of late there is a movement to change the entire basis of liability in cases arising out of road traffic accidents. The move is to make the liability absolute on no-fault basis, so that the victims or their dependants are able to recover always some minimum compensation. It is suggested that this can be achieved by a system of compulsory loss insurance as distinguished from the present system of liability insurance which would insure a potential victim against loss instead of any potential wrong-doer against claims. [see Freidman, Law in a charming Society, 1964 (Pelican) edition, pp. 120, 121 and 141; Lord Kilbrand on other Peoples Law (1966) pp. 38, 50]. Law reform on these lines will be of a far-reaching nature and may be most wel-come; however, all that we need say at present is that Sections 110 to 110-F of the Motor Vehicles Act are not designed to bring about that kind of reform or for that matter any reform affecting the basis or extent of liability. In the exercise of our power of construction we can at times "enlarge the brief text--to unfold hidden meanings" (Hidayatullah, Democracy in India and the judicial Process, p. 68 ). But all authorities accept that there is a line between exposition and legislation which is not to be crossed. In the words of Frankfurter: "to go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. Whatever temptations the statesmanship of policy making might wisely suggest, construction must eschew interpolation or evisceration. " (Frankfurter, Reading of Statutes, Essays on Jurisprudence from the Columbia Law Review, 1964, edition, p. 49 ). Even exercising our power of construction to its full extent we are not able to find any hint in Sections 110 to 110-F of an intention on the part of the parliament to change the basis of extent of liability.