Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances. The Bench expressed,

“…the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature.”

The question posed before the Bench was; can a State Government make Rules, enabling the road transport authority to reject an application for replacement if the proposed vehicle is older than the one covered under the existing permit?

By the impugned order, holding that the Rule 174(2)(c) of the Kerala Motor Vehicles Rules, 1989 traveled beyond and contrary to Section 83 of the Motor Vehicles Act, 1988,  the Kerala High Court had opined that When the expression is vehicle of same nature, then if Rule l74(2)(c) restricts that an older vehicle cannot be brought in, it would be restricting the right conferred to a person by the provisions of the Act. Surely such an exercise by a delegate cannot be permitted. Rules have to be consistent with the Act and not restricting or in derogation thereto.

Noticeably, Rule 174(2)(c) of the Kerala Motor Vehicles Rules, 1989 provides that “upon receipt of the application, the Transport Authority may in his discretion, reject the application – (c) if the new vehicle proposed is older than the one sought to be replaced.” While Section 83 of the Act provides for replacement of vehicles by the following terms: “The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.”

To interpret the expression, ‘of the same nature’, the Bench gauged through the whole statutory scheme under Chapter IV and Chapter V where the former provides for the powers of the Central Government with respect to fixation of the age of the vehicle, or fitness of the vehicle while later provides for the powers of the State Government to deal with transport vehicles except under Section 88 of the Act where the powers are subject to the rules made by the Central Government. The Bench opined that the placement of Section 83 in Chapter V is recognition of the need to provide a seamless mechanism for replacement of a vehicle during subsistence of a transport permit.

Considering the term “vehicle of the same nature” in the context of Chapter V relating to transport vehicles, the Bench explained,

“…it becomes clear that the provision is intended only to enable the owner to work his permit without any interruption even if there is a need to replace the vehicle covered by the permit. There is no other purpose. It is intended to be a simple transaction and this is reason why the scope of scrutiny is limited only to examining if the vehicle is of same nature as in the permit.”

Hence, the Bench opined that the context, in which scrutiny of the Regional Transport Authority is called upon, is only to ensure that the conditions of the permit are not deviated from. Therefore, the scrutiny is not of the vehicle in itself but the vehicle in relation to the permit and a scrutiny of the vehicle, irrespective of its relation with the permit becomes an irrelevant consideration for the purpose of Section 83. Particularly, when questions relating to the vehicle or about the vehicle are matters of concern in Chapter IV, under which the Central Government is empowered to set the norms for the fitness or the age limit of the vehicle and Chapter V, on the other hand contains the legal regime with respect to operations of transport vehicles. Chapters IV and V operate in their own field subserving the purpose and objects mentioned therein.

In the light of the above, the Bench held that Rule 174 (2) (c) made by the State Government to enable replacement of the vehicle under a Transport permit, did not impinge upon the powers of the Central Government with respect to fixation of the age of the vehicle, or fitness of the vehicle conferred upon it under Sections 56 and 59 in Chapter IV. The Bench observed,

“The scrutiny under Rule 174 is only to enable the Authority to ensure that the subsisting permit is not interrupted and at the same time public interest is not compromised by deviating from the permit. The Rule will have no bearing on the power of the Central Government and as such it would not be ultra vires the provisions of the Act.”

Consequently, the Bench concluded that Rule 174(2)(c) was not ultra vires the provisions of the statute and the reasoning adopted by the Division Bench that Rule 174 (2) (c) has overridden the Act was not correct because a subordinate legislation must be interpreted to effectuate the statutory purpose and objective and the High Court failed to appreciate the context in which Rule 174 (2) (c) read with Section 83 was to be construed. Hence, the impugned judgment was set aside.

[Regional Transport Authority v. Shaju, 2022 SCC OnLine SC 209, decided on 17-02-2022]


*Judgment by: Justice Pamidighantam Sri Narasimha


Appearance by:

For the State: G. Prakash, Advocate

Amicus Curiae: Santosh Krishnan


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

High Court stated that,

When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons, it is not case of “contributory” but it is a case of “composite negligence”.

Background

Appellant’s case was that the appellant injured (applicant) was proceeding as a pillion rider along with his brother on motorcycle. The motorcycle was hit by an offending truck which came in high speed and gave dash from behind. Due to the said incident, both the applicant and his brother sustained severe bodily injuries.

An FIR was registered under Sections 279, 337 and 338 of the Penal Code, 1860 against the driver of the offending truck. Due to the accidental injuries, the applicant lost his job as well as his earning capacity, hence he approached the Tribunal for grant of compensation in terms of Section 166 of the Motor Vehicles Act.

What was Tribunal’s decision?

Tribunal quantified compensation of Rs 8,84,520, however, recorded the finding that the accident occurred due to sole negligence of the motorcycle rider, i.e. applicant’s brother. Since there was no negligence on the part of the truck driver, the claim petition was dismissed.

Negligence

It was not in dispute that the appellant was pillion rider and therefore it was a case of composite negligence, in view of that even if there was slightest negligence on the part of truck driver, then the injured can recover compensation from the owner and insurer of the truck. Hence, it was necessary to dwell upon the question of negligence.

“… claim petition is not an adversarial adjudication between litigating parties but a statutory determination of compensation, after due enquiry, in accordance with the statute.” 

Tribunal’s conclusion was drawn solely on the ground that at the time of dash motorcycle was on the wrong side of the road i.e. to its right side.

Analysis and Discussion

In Court’s opinion, the Tribunals discarded spot panchanama which disclosed that the accident took place to the eastern side. Thus, it gave a complete different picture and location of the place of occurrence. The reason for discarding the same was that the rider could not have shown the place since he was admitted to the hospital.

Further, it was stated that there may have been the possibility of Vinod showing the place since there were no documents of him being an indoor patient. Besides that, the panchnama had a reference that there were bloodstains and the existence of the same supported the location of the occurrence.

High Court added that it was not clear as to in which direction the motorcycle was heading, hence the tribunal erred in solely relying said admission by overlooking spot panchanama.

Bench cited the Supreme Court decision in Bimla Devi v. Himachal Road Trans. Corpn., 2009 ACJ 1725 (SC), wherein it was ruled that the strict proof of an accident caused by a particular vehicle in a particular manner was not possible to be done by the claimants. They were merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be invoked in claim petitions.

Further, the Court remarked that,

“Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations which ordinarily by reason of conduct of human affairs would do or obliged to do.” 

Significantly, the Court added that, even if it was assumed that the motorcycle was to the wrong side of the road, still dash was given from behind which clearly demonstrated that the truck driver was very much negligent.

The present matter was a case of composite negligence. The negligence of truck driver may be to any extent, but it would certainly attract liability.

Bench further added that, since the dash was from behind, the doctrine of Res ipsa loquitur would apply against the truck driver.

Merely on stray admission applicant’s entire case dehors to police papers cannot be jettisoned.

The driver and owner have appeared and contested the claim but driver did not step into witness box, which is sufficient to draw adverse inference against them.

Hence, it was quite clear that the truck driver had also contributed in negligence and therefore the finding recorded by the Tribunal on the point of negligence was totally erroneous.

Composite Negligence

“…the accident was result of negligence on the part of both i.e. motorcycle rider and truck driver. Meaning thereby a case of composite negligence.”

In the case of composite negligence, the claimant has no choice to seek compensation from either of the wrongdoer.

Elaborating further, the Bench stated that, since the truck driver contributed in negligence i.e. he was also wrong doer, the applicant can very well claim entire compensation from the driver, owner and insurer of the offending truck.

The compensation assessed by the Tribunal was just and proper. Besides that claimant was entitled to interest @7% per annum, which would be in the tune of the prevailing rate of interest in the banking sector.

Therefore, the appeal was allowed. [Satling Gangadhar Bagal v. Abarao Dnyanoba Sanap, 2022 SCC OnLine Bom 426, decided on 24-2-2022]


Advocates before the Court:

Mr S.S. Dargad, Advocate for the appellant.

Mr A.V. Thombre h/f. Mr S.S. Thombre, Advocate for respondents 1 & 2.

Mr S.V. Kulkarni, Advocate for respondent 3.

Case BriefsSupreme Court

Supreme Court: After it was brought to the Court’s notice that several fake claim petitions were being filed for getting compensation under the Motor Vehicles Act as well as under the Workmen Compensation Act, the bench of MR Shah and Sanjiv Khanna, JJ has issues notice to the Ministry of Transport, Government of India seeking its response and suggestions on how to curb the menace of filing false/fake claim petitions.

The Special Investigating Team (SIT) has filed a Status Report with respect to complaints filed/enquiry completed, the names of the accused, where the criminal complaints are filed and in which criminal cases the charge sheets have been filed. The Status Report shows that total 1376 cases of suspicious claims from various Districts in the State of U.P. have been received so far by the SIT.

Some of the issues Highlighted in the Status report

  • Out of total 1376 cases of suspicious claims received by the SIT since 2015, after completing enquiry of 247 cases of suspicious claims till date, total 198 accused persons have been prima facie found guilty of cognizable offence and accordingly total 92 criminal cases have been registered in various districts. Further, against some of the accused persons, more than criminal cases have been registered. Enquiry of remaining cases of suspicious claims is underway.
  • Out of total criminal cases registered so far, investigation of 36 criminal cases have been completed and charge sheets against accused persons have been filed in 32 criminal cases 2 and final reports in 4 criminal cases have been forwarded to the concerned Criminal Court.
  • total 92 criminal cases in various Districts have been registered till date, of which, 28 advocates have been named as accused persons in 55 cases. Charge sheets against 11 advocates in 25 cases have been forwarded to the concerned trial Court till date.
  • Headquarter of the SIT is situated in Lucknow. Officers/employees have to go in the districts of the entire State and sometimes have to go in other States outside the State of Uttar Pradesh for conducting enquiry/investigation proceedings as and when so warranted.
  • Due to the outbreak of Covid-19, there was a lockdown and termination of transportation services in the State and even some of the officers/employees have been got infected, enquiry/investigation process was adversely affected. It is stated that on getting the situation normal after completion of lockdown of Corona period, full attempts are being made to start this enquiry/investigation process speedily.
  • As the respective insurance companies are not ready to being complainants in the FIR, the investigating officer of the SIT has to become the complainant and therefore also it takes some time. Investigating officer is also present in the Court.

Modus operandi in instituting the fake compensation petitions

  1. Non-road accident injury-death converted into road accident claims;
  2. fraudulent implantation of vehicle;
  3. false implantation of driver;
  4. claimant implantation;
  5. multiple claims at various for a at different territorial locations for compensation out of injury/death caused arising out of the same accident. Often the claim applications are filed both before various MACT Tribunals as well as the authorities under the Employees Compensation Act, 1923;
  6. fake/fabricated insurance policies; and
  7. fake/fabricated income documents/medical documents for exaggerated compensation

Direction

The Court was hence of the opinion that before any further directions are issued, it was necessary to seek the response from the Ministry of Transport, Government of India to have their suggestions for remedial and preventive measures for curbing the menace of filing of false/fraud claim petitions.

The Court, hence, directed the Registry to implead the Ministry of Transport, Government of India as a party-respondent and issue notice. K.M. Nataraj, Additional Solicitor General of India has been requested to appear on behalf of the Ministry of Transport, Government of India and to assist the Court and to come out with suggestions how to curb the menace of filing false/fake claim petitions, after which the Court will issue directions to be applied pan India.

[Safiq Ahmed v. ICICI Lombard General Insurance Co. Ltd., 2021 SCC OnLine SC 1259, order dated 16.12.2021]


For Insurance Companies: Senior Advocate Atul Nanda and Advocate Vishnu Mehra

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., while partly allowing the instant petition held that offence under Section 185 of Motor Vehicle Act, 1988 would be attracted only when alcohol content is detected through breath analyser test or in any other test including a laboratory test.

The petitioner was an accused of offences under Sections 279 and 337 of IPC and Section 185 of the MV Act. Allegation against the petitioner was that he had driven his car in a rash and negligent manner so as to endanger human life and had dashed against another car, resulting in the driver and passenger of the other car sustaining injuries. The petitioner was arrested and subjected to medical examination, upon which the doctor opined that the petitioner smelled of alcohol.

Contention of the petitioner was based on the ground that the offence under Section 185 would be attracted only if alcohol content was detected through breath analyser test.  The petitioner, while relying on Sagimon v. State of Kerala, 2014 SCC OnLine Ker 12726, contended that no such test having been conducted, the entire prosecution was illegal.

Noticing that the doctor’s certificate was with regard to the injuries sustained by the petitioner and others as a result of the accident and no mention was made about breath analyser test or any other test conducted for the purpose of finding the alcohol content in the petitioner’s blood the Court clarified as per Section 185, whoever, while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser or in any other test including a laboratory test, is liable for punishment. Therefore, in order to attract the offence under Section 185(a), the accused should have been subjected to a breath analyser or any other test including a laboratory test to ascertain that his blood found to contain alcohol exceeding 30 mg per 100 ml. Therefore, it was held that the petitioner could not be prosecuted and the petition was allowed to the limited extent of quashing further proceedings against the petitioner under Section 185 of the MV Act. [Manoj Kumar K. v. State of Kerala, Crl. MC. No. 4820 of 2020(B), decided on 08-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., modified the sum of the award granted to a widow by the Motor Accident Claims Tribunal.

The instant appeal was filed challenging the judgment and award passed by the Additional District Judge wherein the sum of Rs 70,000 with an interest of rate 7% was awarded.

Brief facts

The deceased was 62 years of age at the time of the accident. The claimant was the sole surviving legal heir of the deceased. Further, it was added that the deceased was a retired railway employee and was getting pension.

In view of the above circumstances, the pension was halved and the widow was getting Rs 14,000 which shows that she lost Rs 14,000 because of the sad demise of her husband.

MACT awarded a sum of Rs 70,000 while relying on the decision of Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 holding that there was no loss of income.

Further tribunal held that claimant was the legal heir and legal representative of the deceased, the deceased was 62 years of age whose income was shown to be Rs 30,000 per month but no document was produced, hence tribunal did not believe the income to the deceased to be Rs 30,000.

Tribunal also added to its observation that the deceased had been receiving the pension of Rs 28,000 and after his death, family pension of Rs 14,000 is being received by the claimant herself.

Therefore, as the deceased was getting Rs 28,000/- approx as a pension, 50% of the same he would be spending on himself and, therefore, Rs 14,000 would be the monthly datum figure available to the widow.

Issue:

Can the claimant a widow who receives family pension be deprived of compensation is the main question which arises for consideration. If the answer to it is in the negative, what compensation is she entitled to?

Bench stated that, Tribunal ought to have considered the fact that had her husband survived, she would have got a sum of Rs 28,000 per month which has now been halved. Court stated that the multiplier applicable would be ‘7’ as the deceased was in the age bracket of 61-65 years in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 which has been not considered by the Tribunal and has given reasonings which can be said to be questionable.

Further, relying on the decision of this Court in Regional Manager, UPSRTC v. Nisha Dubey, First Appeal from Order No. 3154 of 2013, no deduction from the pension is allowed.

In view of the above, total compensation of Rs 4,97,000 would be granted.

As far as the issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260.

The claimant is the widow of a railway officer and, therefore, she is not illiterate, hence, all the amount need not be invested but shall be transferred to her account.

In view of the above, the appeal was partly allowed. [Subhadra Pandey v. Siddharth Agrawal, First Appeal From Order No. 1237 of 2018, decided on 07-12-2020]

Case BriefsHigh Courts

Patna High Court: S. Kumar, J. dismissed the appeal filed by the insurance company on the grounds that the parties were liable severally as well as jointly. Although the company had the right to recover such compensation paid from the other party involved in the accident for which insurance was being claimed.

A miscellaneous appeal was filed under Section 173 of Motor Vehicle Act by the appellant against the Judgment and Award passed by the 1st Additional District Judge-cum-Motor Accident Claim Tribunal, Saran at Chapra in Claim Case No. 22 of 2002, by which the learned Claims Tribunal directed the appellant to pay a sum of Rs 3,50,000 to the claimant with interest @ 6 % per annum from the date of claim case till its realization.

The claimant was the husband of one Parwati Devi who died in a motor accident while travelling on a Commander Jeep which collided with another Commander Jeep on 19-09-2001 at about 10:00 PM The deceased was seriously injured and while she was being taken to hospital she succumbed to the injuries. An FIR was instituted under Sections 279, 338 and 304-A of the Penal Code against the drivers of both the vehicles and after investigation the police found the case to be true against drivers of both vehicles.

The appellant had appeared and had filed their written statement in which they denied the claim of claimants. The tribunal, after having examined the material brought on as evidence, held that the deceased died due to rash and negligent driving by the drivers of both vehicles and there was composite negligence on part of both the drivers. The Tribunal had further held that it was a case of composite negligence and the claimant was entitled to claim the compensation amount from either the owner or the insurer of the vehicle and had directed the appellant who was the insurer, to pay compensation.

High Court did not find any error or infirmity in the order passed by the tribunal and as such present appeal was dismissed as a liability to pay the compensation was joint and as well as several. However, since there was a specific finding of the tribunal that there was composite negligence on part of drivers of both the vehicles as such the appellant was entitled to recover 50% of the compensation amount paid to the claimant from the owner /insurer of the other offending vehicle.

In view of the above noted facts, the instant appeal was dismissed with the directions that the insurance company had to pay the balance claim amount with interest @ 6% from the date of presentation of claim till its realization within one month from the receipt of a copy of order passed by the court with a right of recovery of 50% of the compensation amount so paid from the owner /insurer of the other offending vehicle.[New India Assurance Co. Ltd v. Kanchan Bhagat, 2019 SCC OnLine Pat 1737, decided on 02-09-2019]

Case Briefs

Supreme Court: Deciding the question involving the permissible alteration in a Motor Vehicle in view of the provisions contained in section 52 of the Motor Vehicles Act, 1988, Rule 126 of the Central Motor Vehicles Rules, 1989 and the effect of Rules 96, 103 and 261 of the Kerala Motor Vehicle Rules, 1989, the bench of Arun Mishra and Vineet Saran, JJ held:

“No vehicle can be altered so as to change original specification made by manufacturer. Such particulars cannot be altered which have been specified by the manufacturer for the purpose of entry in the certificate of registration.”

The Court said that the Rules are subservient to the provisions contained in section 52 of the MV Act and what is prohibited therein. It was clarified that

“No doubt about it that the vehicle has to be in conformity with the rules also but Rules cannot be so interpreted so as to permit the alteration as prohibited under section 52(1) of the Act. The alteration under the Rules is permissible except as prohibited by section 52.”

The Court noticed that Section 52 of the MV Act has undergone change by way of Amendment Act 27/2000 with the purpose to prohibit alteration of vehicles in any manner including change of tyres of higher capacity, keeping in view road safety and protection of environment. It said:

“The amended section 52(1) has specified the extent to which vehicle cannot be altered. A reading of the provisions makes it clear that no vehicle can be altered in a manner where particulars in the certificate of registration are at variance with those “originally specified by the manufacturer”.”

The Court further explained:

“The emphasis of section 52(1) is not to vary the “original specifications by the manufacturer”. Remaining particulars in a certificate of registration can be modified and changed and can be noted in the certificate of registration as provided in section 52(2), (3) and (5) and the Rules. Under section 52(5), in case a person is holding a vehicle on a hire purchase agreement, he shall not make any alteration except with the written consent of the original owner.”

[Regional Transport Officer v. K. Jayachandra, CIVIL APPEAL NOS.  219­222 OF 2019), decided on 09.01.2019]