Rajasthan High Court - Jodhpur

Bhanwar Lal vs Umar Chipa And Ors. (2024:Rj-Jd:41280) on 8 October, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:41280]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                 AT JODHPUR


                 S.B. Civil Misc. Appeal No. 2075/2013

Bhanwarlal Lathi S/o Shri Bhamraj Lathi, age 80 years, Resident
of Sadar Bazar, Baneda, Tehsil Baneda, District Bhilwara
(Rajasthan).
                                                          ----Appellant/Claimant
                                      Versus
1.     Umar Chhipa S/o Mohammed Sharif Chhipa, Resident of
       Khairadi Mohalla, Baneda, Tehsil Baneda, District Bhilwara
       (Rajasthan)
2.     Ramesh Chandra S/o Ram Kumar Nyati, Resident of Vakil
       Colony,       Baneda,       Tehsil       Baneda,            District   Bhilwara
       (Rajasthan)
3.     National Insurance Company Limited, through Divisional
       Manager, National Insurance Company Ltd. Branch office
       Bhilwara.
                                                                     ----Respondents


For Appellant(s)            :     Mr. C.P. Rajora.
For Respondent(s)           :     Mr. Avinash Bhati on behalf of
                                  Mr. Ramesh Purohit, R-1 & 2.
                                  Mr. Jagdish Vyas, R-3 Insurance Co.



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

08/10/2024

1. The present appeal has been filed against the judgment

dated 26.10.2013 passed by learned Judge, Motor Accident Claims

Tribunal, Bhilwara in Motor Accident Claim No.787/2013 whereby

the claim petition as filed by the claimants has been rejected by

the learned Tribunal. While rejecting the claim petition, the

learned Tribunal proceeded on to hold that the Insurance

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Company would be entitled to recover back the amount paid qua

'no fault liability' to the claimant.

2. Vide order dated 05.08.2019, the present appeal was

admitted by a Coordinate Bench of this Court and the interim

order granted earlier restraining the respondents from making any

recovery, was ordered to continue.

3. Learned counsel for the Insurance Company submitted that

in the present matter, the claim petition has been rejected on the

ground of non-involvement of the vehicle in question and hence

the issue of negligence did not even arise. Counsel submitted that

as the issue of negligence did not even arise, the amount qua 'no

fault liability' could not have been awarded and hence the

proposition of law that the amount paid qua 'no fault liability'

cannot be recovered back, would not apply to the present case.

4. Heard Learned counsel for the parties.

5. Section 140 of the Act of 1988 which provides for

compensation qua 'no fault liability' reads as under:

"Section 140. Liability to pay compensation in certain cases on the principle of no fault--

(1) 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 sub-section (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

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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 163A."

Section 141 of the Act of the 1988 reads as under:

"141. Provisions as to other right to claim compensation for death or permanent disablement.--

(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to [any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter] in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.

(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub- section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and--

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation."

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A perusal of the above mentioned provisions makes it clear

that the concept of 'no fault liability' intends to provide immediate

comfort at the initial stage itself to the aggrieved victim or legal

representative of the victim of the accident caused by the user of

Motor vehicle, resulting in death or permanent disability. Further,

in awarding the amount qua 'no fault liability', the Court is not

bound to record any finding on negligence. The Hon'ble Apex

Court in the case of Eshwarappa and Ors. Vs. C.S.

Gurushanthappa and Ors.; (2010) 8 SCC 620 has held as under:

"On a plain reading of the provisions it is evident that all that is required to attract the liability under Section 140 is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disablement of any person."

6. Coming to the liability of the Insurance Company, the

Hon'ble Apex Court in the case of Eshwarappa (supra) held as

under:

"....Section 147 contains the provisions that are commonly referred to as `Act only insurance'. The provisions of Sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus the liability arising from Section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of Sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law.

16. Seen thus, the provisions of chapter X together with Sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault.

17. The provisions of Section 140 are indeed intended to provide immediate succour to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under Section 140 is made at the threshold of the proceeding and the payment of compensation under Section 140 is directed to be made by an interim award of the Tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts."

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7. In the view of this Court, the amount paid qua 'no fault

liability' cannot be recoverable as although the learned Tribunal

had rejected the claim petition on the ground of non-involvement

of the vehicle in question but the amount qua 'no fault liability' is

deemed to be awarded at the initial stage itself to provide

immediate relief to the injured or the dependants of the victim

without going into the merits of the case and hence it cannot be

recovered at the later stage. The same view was also expressed

by the Hon'ble Apex Court in the case of Indra Devi and Ors. vs.

Bagada Ram and Ors. : (2010) 13 SCC 249, wherein while dealing

with the similar situation akin to the present case, the Court held

as under:

"5. The impugned direction is clearly erroneous and unsustainable in law. The Tribunal has completely failed to realize the true nature and character of the compensation in terms of Section 140 of the Act. The marginal heading to Section 140 describes it as based 'on the principle of no fault'. As the expression 'no fault' suggests the compensation under Section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made"

6. We have examined the nature of the 'no fault compensation' payable under Section 140 of the Act in Eshwarappa @ Maheshwarappa and Anr. v. C.S. Gurushanthappa and Anr. (Civil Appeal No. 7049 of 2002), the judgment in which is pronounced today. We, therefore, do not wish to elaborate the point further. Suffice to say that in view of our judgment in Civil Appeal No. 7049 of 2002, the Tribunal was patently in error, in directing for the refund of the amount of 'no fault compensation' already paid to the claimants, to the insurance company. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the Tribunal and not setting it right.

7. The present appeal must, therefore, be allowed. The order of the Tribunal insofar as it permits the insurance company (respondent No. 2) to recover the amount of interim compensation alongwith the interest from the claimants/appellants is set aside."

8. In view of the above discussion, the direction to the

Insurance Company to recover back the amount from the claimant

qua 'no fault liability', as granted by learned Tribunal, cannot be

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upheld in the light of judgment of Hon'ble Apex Court in the case

of Eshwarappa (supra).

9. So far as the rejection of the claim petition of the claimant is

concerned, this Court does not find any reason to interfere with

the same as it is based on the material available on record.

10. The present appeal is hence partly allowed. The

judgment/award dated 26.10.2013 is set aside to the extent it has

held the Insurance Company entitled to recover the amount back