Natural rights theory

It must be remembered that an easement is a specific right subtracted from the general rights constituting ownership of one property and attached to the ownership of another property. In the language of the Act an easement is a restriction of a natural right. An easement, therefore, must be distinguished from natural rights. The latter, as their name imports, are those incidents and advantages which are provided by nature for the use and enjoyment of a person’s property. They are part of the ownership rights. the illustrations to S. 7 of the Easements Act furnish instances of such natural rights. One of such natural rights is the right of every owner of upper land that water naturally rising in or falling on such land, and not passing in defined channels, shall be allowed by the owner of the adjacent lower land to run naturally thereto. Thus the right of the owner of a high land to drain off its surplus surface water to the adjacent lower lands is incidental to the ownership of the land.

Natural rights, as their name imports, are those incidents and advantages, which are provided by nature for the use and enjoyment of a man’s property. These rights are treated by law as the ordinary incidents of property and annexed to land whatever land exists. Generally speaking, it may be said that the function of natural rights is to secure to the owner of land the full enjoyment thereof undiminished by any tortious acts on the part of his neighbour. In considering the acquisition of easements a material effect of the distinction easements and natural rights is to be noticed. Easements can only be created and conferred by the act of man, whereas natural rights arc incident to land, and to them the owner of land has as much right as he has to the land itself, without the direct intervention of human agency — that is, without any act of creation and gift by the servient owner, and without any act of acquisition on his own part. (Goddard on Law of Easements, 7th Edition at page 126). Natural rights though resembling easements in some respects, are clearly distinguishable from them. The essential distinction between easements and natural rights appears to lie in this that easements arc acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belong to the ordinary incidents of property and are ipso facto enforceable in law. Natural rights are themselves subject to restriction at the instance of easements. It is also necessary to notice the distinction between easement and licence. The chief distinction is that whereas an easement cannot be extinguished merely at the will of the grantor, a licence is, generally revocable at the will of the person who has given it.

The statute of The International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention.

STATUTE OF THE INTERNATIONAL TRIBUNAL

FOR THE LAW OF THE SEA

Article 1

General provisions

1. The International Tribunal for the Law of the Sea is constituted and shall function in accordance with the provisions of this Convention and this Statute.

2. The seat of the Tribunal shall be in the Free and Hanseatic City of Hamburg in the Federal Republic of Germany.

3. The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable.

4. A reference of a dispute to the Tribunal shall be governed by the provisions of Parts XI and XV.

SECTION 1. ORGANIZATION OF THE TRIBUNAL

Article 2

Composition

1. The Tribunal shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.

2. In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.

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EXCLUSIVE ECONOMIC ZONE

PART V

Article55

Specific legal regime of the exclusive economic zone

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

Article56

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.

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United Nations Convention on the Law of the Sea of 10 December 1982

CONTENTS

PREAMBLE

PART I. INTRODUCTION

Article 1. Use of terms and scope
PART II. TERRITORIAL SEA AND CONTIGUOUS ZONE

SECTION 1. GENERAL PROVISIONS

Article 2. Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil

SECTION 2. LIMITS OF THE TERRITORIAL SEA

Article 3. Breadth of the territorial sea
Article 4. Outer limit of the territorial sea
Article 5. Normal baseline
Article 6. Reefs
Article 7. Straight baselines
Article 8. Internal waters
Article 9. Mouths of rivers
Article 10. Bays
Article 11. Ports
Article 12. Roadsteads
Article 13. Low-tide elevations
Article 14. Combination of methods for determining baselines
Article 15. Delimitation of the territorial sea between States with opposite or adjacent coasts
Article 16. Charts and lists of geographical coordinates

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

SUBSECTION A. RULES APPLICABLE TO ALL SHIPS

Article 17. Right of innocent passage
Article 18. Meaning of passage
Article 19. Meaning of innocent passage
Article 20. Submarines and other underwater vehicles
Article 21. Laws and regulations of the coastal State relating to innocent passage
Article 22. Sea lanes and traffic separation schemes in the territorial sea
Article 23. Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances
Article 24. Duties of the coastal State
Article 25. Rights of protection of the coastal State
Article 26. Charges which may be levied upon foreign ships

SUBSECTION B. RULES APPLICABLE TO MERCHANT SHIPS AND GOVERNMENT SHIPS OPERATED FOR COMMERCIAL PURPOSES

Article 27. Criminal jurisdiction on board a foreign ship
Article 28. Civil jurisdiction in relation to foreign ships

SUBSECTION C. RULES APPLICABLE TO WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED FOR NON-COMMERCIAL PURPOSES

Article 29. Definition of warships
Article 30. Non-compliance by warships with the laws and regulations of the coastal State
Article 31. Responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes
Article 32. Immunities of warships and other government ships operated for non-commercial purposes

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The Reserve Bank of India decided to transfer an interim dividend of Rs 28,000 crore to the government in the financial year 2018-19

“Based on a limited audit review and after applying the extant economic capital framework, the board decided to transfer an interim surplus of Rs 28,000 crore to the central government for the half-year ended December 31, 2018,” the RBI said. The RBI board also “reviewed the current economic situation, global and domestic challenges, and other specific areas of operations”.

The RBI had, for the first time, transferred an interim dividend of Rs 10,000 crore in 2017-18 or FY18 on the latter’s request. In FY18, the dividend received by the government from the RBI stood at Rs 50,000 crore. In 2016-17, the Centre had received Rs 65,876 crore as dividend from the RBI.

In August last year, the government had received Rs 40,000 crore as dividend from the central bank after it closed its accounts for the July 2017-June 2018 period. With the transfer of interim dividend, the Centre will receive Rs 68,000 crore in the form of surplus from the RBI for FY19.

Dated: February 18, 2019

Under the law of torts, the Civil Court can award damages if civil wrong of malicious prosecution is proved.

In order to award damages the plaintiff is required to prove that the person who instituted the suit was prosecuted by the defendants in the Criminal Court. But, there is no law under which the Civil Court can award damages if a person is made to suffer civil proceedings.

(2001) ILR(Karnataka) 3816 : (2001) 5 KantLJ 453 : (2001) 4 KCCR 2755

KARNATAKA HIGH COURT

SINGLE BENCH

( Before : Chandrashekaraiah, J )

THE CONTROLLER OF WEIGHTS AND MEASURES, BANGALORE AND OTHERS  Vs. DIESAL (INDIA), BANGALORE

Regular First Appeal No. 400 of 1997

Decided on : 27-02-2001

Civil Procedure Code, 1908 (CPC) – Section 80, Section 9

Counsel for Appearing Parties

Sri Mohammed Athar, Additional Government Advocate, for the Appellant; Sri S.V. Shastri, for the Respondent

JUDGMENT

The Court

1. This appeal is by the defendants challenging the judgment and decree dated 29-8-1996 passed in O.S. No. 1741 of 1997 on the file of the II Additional City Civil Judge, Bangalore. The parties in this appeal are referred to as arrayed in the Trial Court.

2. The plaintiff-respondent firm has filed a suit for declaration that the provisions of Karnataka Weights and Measures (Enforcement) Act, 1958 is not applicable to the platform scale held by its concern and for the consequential relief that the seizure of the platform scale from it so made by the second defendant on 15-3-1985 is illegal and void and also for damages of Rs. 9,039/- from the defendants. The said suit has been resisted by the defendants.

3. From the averments of the plaint it is seen that the platform scale was seized by the defendants on 15-3-1985 in exercise of the power under the Karnataka Weights and Measures (Enforcement) Act, 1958 (hereinafter referred to as ‘Act’). According to the plaintiff the said seizure is illegal and void on the ground that the provisions of the said Act has no application to its concern. The defence of the defendants is that as the platform scale was used for trade and commerce the seizure is justified. On the basis of the pleadings the Trial Court has framed the following issues.–

1. Whether the plaintiff proves that the provisions of the Karnataka Weights and Measures Act is not applicable as the platform scale is not used for commercial or trade purpose?

2. Whether the plaintiff is entitled for damages?

3. Whether the plaintiff is entitled for total reimbursement of the value of the platform scale valued at Rs. 4,214/-?

4. Whether the plaintiff is entitled for expenses of Rs. 3,000/- and Rs. 250/- notice charges?

5. Whether the suit is bad for non-compliance of Section 80 of the Civil Procedure Code?

6. Whether this Court has no jurisdiction?

7. Whether the defendants prove that their actions are in good faith?

8. What decree or order?

On issue No. 1 the Trial Court has held that the provisions of the Act are inapplicable to the scale in question used by the plaintiff-firm. But, ultimately has not granted relief regarding the declaration that the provisions of the Act are not applicable to the plaintiffs concern. But, the Trial Court has passed a decree granting damages of Rs. 7,320/- in favour of the plaintiff.

4. The learned Government Advocate appearing for the appellants submits that the Trial Court is not right in holding that it has jurisdiction to try the suit.

Now the points that arise for consideration in this appeal are.–

(1) Whether the Trial Court is justified in holding that it has jurisdiction to entertain the suit?

(2) Whether the Court below is justified in decreeing the suit for damages?

Regarding Point No. 1;

The defendants have seized the platform scale belonging to the plaintiff on 15-3-1985. The case of the plaintiff is that it was not using the platform scale for any trade or commerce and therefore, the authorities are not right in seizing the scale from it. The case of the defendants is that the plaintiff is a partnership concern engaged in manufacturing solution from out of certain chemicals. As the plaintiff was using the platform scale for the purpose of trade and commerce the authorities having found that the platform scale having no seal or stamp as required under the Act are justified in seizing the articles. It is not disputed that the scale that was seized did not have the seal or the stamp by the authorities as required under the Act. Even assuming that the scale has not been used for trade or commerce if it is seized by the authorities, the appropriate remedy for the owner of the scale is to work out his rights as provided under the Act under which the scale was seized. From the facts it is seen that the defendants immediately after the seizure of the scale issued show-cause notice on 16-3-1995 to the plaintiff. If the plaintiff had filed a reply showing the cause, in all probability, an appropriate order would have been passed by the concerned authority. In the instant case though the plaintiff has stated that he has sent the reply on the very day he received the show-cause notice, no material has been produced before the Court to show that he has replied to the show-cause notice. In the absence of any reply to the show-cause notice the plaintiff cannot expect any order from the authorities regarding seizure of the scale. As against the order of seizure the appropriate remedy for the plaintiff is to prefer an appeal as provided u/s 20 of the Act. In the instant case the plaintiff had not chosen to challenge the correctness of the seizure by way of preferring an appeal before the appropriate authority. Sri S.V. Shastry, learned Counsel appearing for the plaintiff submits that since the seizure was without any decision, the plaintiff had not preferred any appeal to the Appellate Authority. This argument cannot be accepted because the very seizure by the authority itself is pursuant to a decision by the authority who has been conferred with the power to seize the article. Therefore, the plaintiff cannot maintain a suit since the suit is impliedly barred u/s 9 of the Civil Procedure Code. The suit filed by the plaintiff is not also maintainable for one more reason.

Section 36 of the Act reads as follows.–

“Section 36. Protection of persons acting in good faith.–No officer or servant of the State Government shall be liable in respect of any Act in civil or criminal proceedings if the Act was done in good faith, in the course of execution of the duties or the discharge of function imposed by or under the Act”.

From the reading of this it is clear that any act of the servant of the State Government cannot be questioned if it is done in good faith. In this case the plaintiff has not adduced any evidence to show that the step taken by the defendants in seizing the article has not been done in good faith. Therefore, the suit itself was liable to be dismissed as the plaintiff failed to prove or establish that the impugned action by the officer is not in good faith.

5. Point No. 2.–The ease of the plaintiff is that the provisions of the Act are not applicable to his concern. When an enactment is made with the object of providing for enforcement of standard weights and measures and for the matters connected therewith, if any person violates the provisions of the enactment, he is liable for the consequences provided under the Act. If the prayer of the plaintiff is accepted, any act done by him contrary to the provisions would not be a ground to prosecute him under the Act. So, no relief as prayed for in the suit could be granted as it would otherwise prevent the authorities from enforcing the provisions of law as against the plaintiff. The Court below, though has recorded a finding that the provisions of the Act are not applicable insofar as the platform scale is concerned, has not granted any relief in the operative portion of the judgment.

If at all the plaintiff is entitled for damages in the event if he has suffered any damage, the appropriate prayer for him is to seek for declaration of the act committed by the defendants resulting in causing damage to him, as illegal. In the instant case though the plaintiff has prayed for a declaration that the seizure of the platform scale is illegal, the Trial Court neither has framed the issue on this point nor considered the same in the body of the judgment. The Trial Court also has not granted any relief in the operative portion of the order. Therefore, in the absence of declaration whether the seizure of the scale belonging to the plaintiff is illegal, no damages also could be awarded.

6. From the facts it is seen that the plaintiff has challenged the show-cause notice by way of filing writ petition before this Court. The said writ petition was dismissed. Thereafter, the plaintiff has challenged the correctness of the order passed by the Single Judge in the said writ petition by way of preferring an appeal. This was also dismissed. After the disposal of the writ appeal, the plaintiff had filed a criminal case seeking for release of the scale that was seized by the defendants. That criminal case was also dismissed. The order of the Criminal Court was also challenged by the plaintiff by way of a revision and the same was also dismissed. The learned Trial Judge awarded damages taking into account the amount spent by the plaintiff in the above said litigation. It is not known under what provision or under what law, the Trial Court could grant damages in respect of the loss or damage if any suffered in the civil proceedings. No doubt, under the law of torts, the Civil Court can award damages if civil wrong of malicious prosecution is proved. In order to award damages the plaintiff is required to prove that the person who instituted the suit was prosecuted by the defendants in the Criminal Court. But, there is no law under which the Civil Court can award damages if a person is made to suffer civil proceedings. Further, the plaintiff was not brought to the Civil Court at the instance of the defendants. It is the plaintiff who had gone to the Civil Court and got orders against him. If a person has suffered any damage or an injury consequent upon the institution of proceedings against him in the Civil Court, the appropriate way of compensating that person is by way of awarding cost in the said proceedings. In the instant case, the learned Judge failed to notice that in all the civil proceedings referred to above the plaintiff has failed and the said proceedings reached finality.

7. The Trial Court has also awarded damages towards the value of the scale seized from the plaintiff relying upon the receipt produced by the plaintiff for having purchased new scale. If the scale seized from the plaintiff is illegal, the appropriate prayer of the plaintiff is to ask for restoration of possession of the scale seized from him. In the case on hand the plaintiff has not made any such prayer for restoration of possession. When the scale seized is available with the defendants and in the event if it is proved that the said seizure is illegal, the plaintiff at best is entitled for restoration of possession and for damages only to the extent he was deprived of the use of the said scale. Before the Trial Court the plaintiff has not produced any evidence to show the value of the scale when it was seized from him and consequent upon the seizure how much loss he incurred. Under these circumstances, the Trial Court is not justified in awarding the market value of the new scale even assuming that the seizure of the scale is held to be bad. Therefore, for all these reasons I hold that the Trial Court was not right in decreeing the suit of the plaintiff.

8. In the result, I pass the following order.-

-(i) Appeal is allowed;

(ii) Judgment and decree passed by the Trial Court are set aside;

(iii) Parties to bear their own cost.


Purpose of the Employees Insurance Act

The Employees Insurance Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof.

Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the Employees Insurance Act alone.

WESTERN INDIA PLYWOOD LIMITED Vs. P. ASHOKAN

SUPREME COURT OF INDIA JUDGMENTS

The respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise. The use of the expression “or otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the Employees Insurance Act. Even though the Employees Insurance Act is a beneficial legislation the Legislature Had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : S. B. Majmudar, J; B. N. Kirpal, J )

WESTERN INDIA PLYWOOD LIMITED — Appellant

Vs.

P. ASHOKAN — Respondent

Civil Appeal No. 1404 of 1988

Decided on : 19-09-1997

Employees State Insurance Act, 1948 – Section 53

Cases Referred

Mangalamma and Others Vs. Express Newspapers Ltd. and Another, AIR 1982 Mad 223 : (1982) ILR (Mad) 245 : (1982) 95 LW 51 : (1982) 1 MLJ 149
A. Trehan Vs. M/s. Associated Electrical Agencies and another, (1996) 2 ACC 53 : (1996) ACJ 853 : (1996) 5 AD 6 : AIR 1996 SC 1990 : (1996) 74 FLR 1886 : (1996) 5 JT 648 : (1996) LabIC 1723 : (1996) 2 LLJ 721 : (1996) 114 PLR 633 : (1996) 4 SCALE 469 : (1996) 4 SCC 255 : (1996) 2 SCR 728 Supp : (1996) 2 UJ 362

ORDER

B.N. Kirpal, J.—The Sole question which arises for consideration in this appeal is whether the respondent, who is an employee of the appellant, can claim damages from the appellant on account of the injury suffered by him during the course of employment when he has already received the benefit under the provisions of the Employees State Insurance Act 1948 (hereinafter referred to as the ‘ESI Act”).

2. Briefly stated the facts are that the appellant is a company owning and operating a plywood factory. The respondent, who was working with the company, met with an accident when he was feeding the DAP compound into the roller mill by pushing it with his own hand. As a result of this accident one of his hands was amputated. Notwithstanding this accident, the appellant allowed the respondent to continue in its service without any reduction in remuneration.

3. The Employees Insurance Act was applicable to the employees of the appellant company, including the respondent. After the aforesaid accident a claim was made thereunder and as a result thereof the disability benefit of Rs. 260 per month on account of permanent/partial disablement was ordered to be paid to the respondent. This decision of the Employees State Insurance Corporation to pay the said amount was not challenged. It is the case of the appellant that besides this benefit under the Employees Insurance Act, the medical expenses for the treatment of the respondent were also borne by it and in fact the said respondent received the best medical treatment available in that area.

4. While still in service the respondent filed OP No. 108 of 1981 in the Court of Subordinate Judge, Tellichery, under Order 33 Rule 1 of the CPC, seeking permission of the Court to allow him to file a suit against the appellant herein for Rs. 1,50,000 as compensation for the injuries sustained by him on account of the aforesaid accident which had taken place in April, 1980, This application was opposed by the appellant herein, inter alia, on the ground that it was liable to be dismissed under Order 33 Rule 5(d) and (f) of the CPC, in view of the provisions of Section 53 of the Employees Insurance Act, which barred the receiving or recovery of any compensation or damages by an employee under any law other than the Employees State Insurance Act. This contention of the appellant was upheld and the Subordinate Court dismissed the said application of the respondent.

5. The respondent thereafter filed an appeal before the High Court of Kerala. A Division Bench of the High Court doubted the correctness of an earlier Bench decision on the same question and, consequently, the case was referred to a Full Bench. The Full Bench consisting of three learned judges held that the provisions of Section 53 and 61 of the Employees Insurance Act did not bar an action by an injured employee under tort for compensation against the employer. It accordingly allowed the appeal and directed the application of the respondent under Order 33 Rule 1 to be decided by the trial court on merits and in accordance with law. Hence this appeal by special leave.

6. It was submitted by Mr. A.S. Nambiar, learned senior counsel for the appellant, that the Employees State Insurance Act is a self contained code and the insured employees, like the respondent, are entitled to the benefit in case of injury suffered under the provisions of the Employees Insurance Act and such employees in the case of an employment injury are debarred from making any claim under any other act or law. In this connection our attention was drawn to the relevant provisions of the Employees Insurance Act. Mr. Manoj Swarup, learned Counsel for the respondent, on the other hand, submitted that Section 53 should be construed in such a way that an aggrieved employee is able to receive adequate compensation on account of the injury which is sustained by him. It was contended that the amount which was paid under the Employees Insurance Act could not be regarded as an adequate measure of damages suffered by the respondent and, therefore, Section 53 should not be construed in such a way as to prevent an employee from bringing about an action in tort. In the alternative it was submitted that this Court, in exercise of its jurisdiction under Article 136 of the Constitution, should not interfere in the present case.

7. There are only three provisions of the Employees Insurance Act which are relevant for the present case. Section 2(8) defines the term ’employment injury’ and reads as follows :

’employment injury’ means a perennial injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

The two other sections with which we are concerned in this case are Sections 53 and 61 which are as follows :

53. Bar against receiving or recovery of compensation on damages under any other law:- An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.

61. Bar of benefits under other enactments:- When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.

8. The aforesaid provisions have been construed by different Court including this Court. Mr. Nambiar first relied upon the decision of the Karnataka High Court in K.S. Vasantha and Ors. v. Karnataka State Road Transport Corporation (1982) 60 FJR 118, wherein it was held, while construing Section 53 of the Employees Insurance Act, that where workmen travelling to work on a transport provided by the employer had suffered injury by an accident caused to the vehicle, it amounted to employment injury and that Section 53 was a bar to any claim by the insured under any other law or the Workmen’s Compensation Act, 1923. Their remedy, it was held, was only to claim compensation or damages from the Employees State Insurance Corporation. To the same effect is the judgment of the Madras High Court in the case of Mangalamma and Others Vs. Express Newspapers Ltd. and Another, . While construing Section 53 the Madras High Court held that the object of Section 53 of the Act was to save the employer from facing more than one claim in relation to the same accident. In Annapurna and Ors. v. General Manager, Karnataka State Road Transport Corporation, Bangalore and Ors. (1984) L.C. Jou 1355, a Division Bench of the Karnataka High Court followed its earlier judgments and reiterated that Section 53 created a bar to the recovery of compensation under any other law in cases where the insured person had received an employment injury.

9. Mr. Swarup, however, relied on the decision in the case of Hindustan Aeronautics Ltd. v. P. Venn Perumal and Anr. AIR (1972) Mys 255. It was held by the Mysore High Court that the right to sue under the Motor Vehicles Act originates from the substantive law, namely, the law of tort. This law was not an enactment and, consequently, the provisions of Section 61 of the Employees Insurance Act could not prohibit an employee from making a claim u/s 110 of the Motor Vehicles Act claiming damages on account of injuries suffered in an accident. Though the observations in the said judgment do support the submission of Mr. Swarup but the High Court did not consider in that case the applicability and effect of Section 53, with which we are concerned here.

10. The position with regard to the claim of an employee against his employer on his suffering an employment injury now stands settled with the decision of this Court in A. Trehan Vs. M/s. Associated Electrical Agencies and another, . In that case Trehan, who was an employee of the respondent, received injuries on his face while he was carrying out repairs of a television in the course of his employment as a result of which he lost vision in the left eye. After receiving the benefit from the Employees’ State Insurance Corporation under the Employees Insurance Act he served a notice on the respondent demanding Rs. 7. lacs as compensation. Thereafter he filed an application under the Workmen’s Compensation Act claiming compensation of Rs. 1,06,785. The employer objected to the maintainability of the same and relied upon Section 53 of the Employees Insurance Act. The Commissioner overruled the employer’s objection and followed the judgment of the Full Bench of the Kerala High Court in the present case and observed that ESI being a welfare legislation, the Parliament could not have intended to create a bar against the workmen claiming more advantageous benefit under the Workmen’s Compensation Act. The single judge of the High Court dismissed the writ petition filed by the employer but the Division Bench, in appeal, held that in view of the bar created by Section 53, the application for compensation filed by Trehan was not maintainable. This Court analysed the provisions of Section 53 of the Employees Insurance Act and observed at page 260 as follows:

In this background and context we have to consider the effect of the bar created by Section 53 of the Employees Insurance Act. Bar is against receiving or recovering any compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise in respect of an employment injury. The bar is absolute as can be seen from the use of the words shall not be entitled to receive or recover, “whether from the employer of the insured person or from any other person”, “any compensation or damages” and “under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise”. The words “employed by the legislature” are clear and unequivocal. When such a bar is created in clear and express terms it would neither be permissible nor proper to infer a different intention by referring to the previous history of the legislation. That would amount to bypassing the bar and defeating the object of the provision. In view of the clear language of the section we find no justification in interpreting or construing it as not taking away the right of the workmen who is an insured person and an employee under the Employees Insurance Act to claim compensation under the Workmen’s Compensation Act. We are of the opinion that the High Court was right in holding that in view of the bar created by Section 53 the application for compensation filed by the appellant under the Workmen’s Compensation Act was not maintainable.

11. The judgment under appeal in the present case of the Full Bench of the Kerala High Court was considered and it was observed that “we cannot agree with some of the assumptions and observations made by the Kerala High Court. Moreover, the Kerala High Court has taken that view without referring to and considering the effect of the clear and express words used in that section.”

12. In view of the aforesaid observations in Trehan’s case, with which we respectfully agree, it is clear that the respondent could not make a claim for damages. Section 53 disentitles an employee who has suffered an employment injury from receiving or recovering compensation or damages under the Workmen’s Compensation Act or any other law for the time being in force or otherwise. The use of the expression “or otherwise” would clearly indicate that this section is not limited to ousting the relief claimed only under any statute but the wordings of the section are such that an insured person would not be entitled to make a claim in Torts which has the force of law under the Employees Insurance Act. Even though the Employees Insurance Act is a beneficial legislation the Legislature Had thought it fit to prohibit an insured person from receiving or recovering compensation or damages under any other law, including Torts, in cases where the injury had been sustained by him is an employment injury.

13. The Employees Insurance Act has been enacted to provide certain benefits to the employees in case of sickness, maternity and employment injury and make provisions in respect thereof. Under this Act contribution is made not only by the employee but also by the employer. The claims by the employees against the employer where the relationship of the employer and employee exists were meant to be governed by the Employees Insurance Act alone. It is precisely for this reason that the Madras High Court in Mangalamma’s case (supra) had observed that the object of Section 53 of the Employees Insurance Act was to save the employer from facing more than one claim in relation to the same accident. This, in our opinion, is the correct reading of the said provision. This being so the claim of the respondent for damages being barred u/s 53 of the Employees Insurance Act, the trial court was right in dismissing the application under Order 33 Rule 1 of the CPC.

14. The position in law being clear and concluded by the decision of this Court in Trehan’s case (supra) we see no justification for the Court not exercising its jurisdiction under Article 136, as was contended by the respondent’s counsel. The incorrect decision on a point of law of the High Court has to be corrected.

15. During the course of hearing it had been argued that Section 53 should not be construed in such a way that an insured person cannot raise a claim against a third party in the event of his suffering an employment injury. It was submitted that though qua the employer only one remedy may be available, namely, under the Employees Insurance Act but as far as third persons are concerned Section 53 cannot be taken up as a defence to an action in tort in a claim being made for damages because the Employees Insurance Act creates certain rights as a result of the employment qua the employer and has no application as far as third parties are concerned. In this connection it was submitted that the use of the words ’employment injury’ in Section 53 relates to a claim which is relatable to the employment of the insured person with his employer.

16. In our opinion, though there is considerable force in the said submission but it is not necessary for the decision of the present case to decide this issue finally because in the instant case the claim which was sought to be made was not against the third party but against the employer itself. Perhaps this question may require consideration in an appropriate case.

17. For the aforesaid reasons this appeal is allowed. The judgment of the High Court is set aside and that of the trial court dismissing the respondent’s application under Order 33 Rule 1 of the CPC is restored. There will be no order as to costs.


(1997) 6 SCALE 169 : (1997) 7 SCC 638 : (1998) SCC(L&S) 376 : (1997) SCR 180 : (1997) 4 SCT 407 : (1997) 5 SLR 654 : (1997) 8 Supreme 260

APPAJI (SINCE DECEASED) AND ANOTHER Vs. M. KRISHNA AND ANOTHER

The accident in the instant case had taken place while the deceased was himself riding a two-wheeler. No other vehicle was involved in the accident against whose driver or owner could the claimant make a claim for payment of compensation on no fault basis u/s 163-A of the Act. There was no possibility of even accusing another vehicle or its driver of negligence or rashness. In cases where the accident involves two vehicles one accusing the other of negligence, it may be open to both to maintain a claim on no fault basis u/s 163-A of the Act. That is because such a claim will be permissible no matter the driver or the owner of the other vehicle involved in the accident may dispute his negligence in the matter.

  • The decisions of the Supreme Court have thus settled the legal position insofar as payment of compensation on no fault basis u/s 92-A of the old Act and Section 140 of the Motor Vehicles Act, 1988 is concerned. Regardless whether the person injured or killed in a road accident was himself partially or wholly responsible for the accident, compensation under the said provision is payable to the victim or his legal heirs.

KARNATAKA HIGH COURT

DIVISION BENCH

( Before : Tirath S. Thakur, J; S. Abdul Nazeer, J )

APPAJI (SINCE DECEASED) AND ANOTHER — Appellant

Vs.

M. KRISHNA AND ANOTHER — Respondent

M.F.A. No. 5040 of 1998

Decided on : 17-12-2003

Motor Vehicles Act, 1988 – Section 147, Section 163 A

Cases Referred

K. Nandakumar Vs. Managing Director, Thanthai Periyar Transport Corporation Ltd., (1992) ACJ 1095 : (1992) 1 LW 25
The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., (2001) 1 ACC 618 : (2001) ACJ 827 : AIR 2001 SC 1832 : (2001) 105 CompCas 743 : (2001) 4 JT 477 : (2001) 3 SCALE 223 : (2001) 5 SCC 175 : (2001) 2 SCR 999 : (2001) 2 UJ 881 : (2001) AIRSCW 1602 : (2001) 3 Supreme 252
K. Nandakumar Vs. Managing Director, Thanthal Periyar Transport Corpn., (1996) 1 ACC 480 : (1996) ACJ 555 : (1996) 2 AD 128 : AIR 1996 SC 1217 : (1996) 86 CompCas 435 : (1996) 1 CTC 505 : (1996) 113 PLR 654 : (1996) 2 SCALE 308 : (1996) 2 SCC 736 : (1996) 2 SCR 633 : (1996) 2 UJ 45
Guruanna Vadi and another Vs. The General Manager, Karnataka State Road Transport Corporation, Bangalore and another, (2001) ACJ 1528 : AIR 2001 Kar 275 : (2001) ILR (Kar) 2879 : (2001) 5 KarLJ 322 : (2001) 3 KCCR 1492
Y.R. Shanbhag Vs. Mohammed Gouse and Others, (1991) ACJ 699 : (1990) 2 KarLJ 398
Kokla Devi Vs. Chet Ram and Another, (2002) 1 ACC 650 : (2002) ACJ 650 : (2002) 1 ShimLC 204
New India Assurance Co. Ltd. Vs. Muna Maya Basant, (2001) 2 ACC 589 : (2001) ACJ 940 : AIR 2001 Guj 304 : (2001) 21 GLH 378 : (2001) 1 GLR 915

JUDGMENT

Tirath S. Thakur, J.—This miscellaneous first appeal is directed against a judgment and award made by Motor Accidents Claims Tribunal, Bangalore Rural District, Bangalore, whereby M.V.C. No. 936 of 1997 has been allowed in part and a sum of Rs. 50,000 with interest at the rate of 6 per cent per annum awarded as compensation for the death of late Arun Kumar in a road accident.

2. The deceased Arun Kumar was on 8.7.1997 riding a scooter on his way from Maddur to Malavalli. When he reached a place near the Sugarcane Mill owned by one Malleshanna situated on the said road, he met with an accident resulting in his death. A claim petition in M.V.C. No. 936 of 1997 was presented by the parents of the deceased for payment of compensation. According to the averments made in the said claim petition, the deceased was engaged as a driver by respondent No. 1, the owner of the scooter involved in the accident and the accident in question had taken place while the deceased was trying to avoid a cyclist who had suddenly emerged on the road. The claim petition specifically stated that claimants were exercising their right of filing a claim before the Motor Accidents Claims Tribunal instead of one under Workmen’s Compensation Act, 1923 and that the claim was in terms of Section 163-A of the Motor Vehicles Act, 1988 on ‘no fault basis’ only. Objections filed on behalf of the owner of the scooter involved in the accident, inter alia, stated that the deceased had been engaged by respondent owner and that he was going to Malavalli in connection with the work assigned to him. The allegation that accident had taken place because the deceased was trying to avoid hitting the cyclist was denied. It was on the contrary alleged that the accident in question had taken place on account of the rash and negligent driving of the scooter by the deceased himself. The deceased was according to the respondent owner of the scooter, working as a helper and driver with him on payment of Rs. 2,500 per month towards salary.

3. The insurance company denied the allegations made in the claim petition and, inter alia, stated that the policy of insurance issued for the scooter involved in the accident was an Act policy which did not cover the risk of a driver. The allegation that the deceased was an employee of the owner and that the accident had occurred during the course of the alleged employment was also denied. It was stated that the deceased was in the employment of a private company unconnected with the respondent owner and that the accident had taken while the deceased was on private work riding the scooter borrowed from the owner.

4. On the above pleadings the Tribunal framed three issues for determination which have been answered against the claimant in terms of the impugned judgment and award. The Tribunal held that the accident in question had taken place on account of rash and negligent driving of the scooter by the deceased which fact was proved even in the course of the police investigation. It relied upon the first information report lodged by the cyclist hit by the deceased and declared that deceased was driving the two-wheeler in a rash and negligent manner, struck against the cyclist causing injuries to him, apart from sustaining some injuries on his body which resulted in his death. Insofar as the question of liability was concerned, the Tribunal held that the claimants were entitled to a sum of Rs. 50,000 only towards compensation u/s 140 of the Motor Vehicles Act on ‘no fault basis’. Their claim for payment of any further amount in terms of Section 163-A was negatived and the claim petition disposed of accordingly. The present appeal calls in question the correctness of the above findings and the award made on the basis thereof.

5. Mr. Bhat, learned counsel for the appellants submitted that appellant No. 1, the father of the deceased had during the pendency of the appeal passed away on 20.9.2001 leaving behind appellant No. 2 as the only legal representative. That position was not disputed by counsel appearing for the respondents. The cause-title shall accordingly stand amended and the name of the appellant No. 1 deleted from the array of appellants.

6. Coming to the merits of the case, Mr. Bhat, learned counsel for the appellants did not seriously dispute the finding recorded by the Tribunal that the accident in question had taken place on account of the rash and negligent driving of the scooter by the deceased himself. Even otherwise, that finding appears to us to be perfectly justified on the basis of the material available on record. The first information report, marked Exhs. P-1 and P-2, spot mahazar, marked Exh. P-3 and the charge-sheet drawn up by the police, marked Exh. P-5, clearly suggest that the accident in question had taken place on account of the rash and negligent driving of the scooter by the deceased himself. Apart from the said material, there is no other evidence directly related to the genesis of the accident upon which a contrary view may be formulated. PW 1 Jayalakshmi who happens to be the mother of the deceased and the solitary witness examined in support of the claim was not admittedly present on the spot at the time of the accident. That being so, the Tribunal was in our opinion justified in holding that the accident had indeed taken place on account of the rash and negligent driving of the deceased himself.

7. Mr. Bhat, all the same argued that even when the accident may have been caused by the rash and negligent act of the deceased in the use of the motor vehicle, the claimants would in law be entitled to the payment of compensation on no fault basis u/s 163-A of the Motor Vehicles Act. In support of that submission, Mr. Bhat has placed considerable reliance upon the ‘non obstante clause’ appearing in Section 163-A of the Motor Vehicles Act to argue that any provision in the Motor Vehicles Act or any other law for the time being in force disentitling the claimants from payment of compensation in cases where the death or injury was caused on account of the rash and negligent act of the deceased or the injured person himself would stand neutralised and rendered ineffective. What was according to Mr. Bhat important was whether the accident resulting in the death of the deceased had arisen out of the use of the motor vehicle regardless whether the same was on account of the rash and negligent act of the deceased himself or of some other person or agency. Section 163-A of the Act had, argued the learned counsel, revolutionised the concept of award of compensation and introduced a social security measure by which any loss of life or limb would entail payment of compensation on a no fault basis even when such loss had arisen on account of the rash and negligent act of the person who dies or suffers injury. Reliance in support of that contention was placed by Mr. Bhat upon a Division Bench judgment of the High Court of Himachal Pradesh in Kokla Devi Vs. Chet Ram and Another, and a similar Bench decision of the High Court of Gujarat in New India Assurance Co. Ltd. Vs. Muna Maya Basant, .

8. Mr. Angadi, learned counsel for the respondent insurance company, on the other hand, contended that the view taken by the Tribunal was justified for even after the introduction of Section 163-A of the Act, the basis of the liability to pay compensation remained the same. He urged that the liability’ governing payment of compensation to the person who suffers any injury or the legal heirs of the victim who dies continue to envisage payment only in cases where such injury or death was caused because of a tortious act committed by another person. Any injury sustained by the claimant on account of his own act of rashness or negligence or any claim based on death of a person who was responsible for causing the same could not be maintained even after the introduction of Section 163-A to the Act. The said provision was limited to making proof of fault on the part of any such outside agency unnecessary in a claim for payment of compensation. The other requirement that the death or injury must arise out of any act of omission or commission on the part of any such agency was not so dispensed with.

9. We have given our anxious consideration to the submissions made at the Bar. The legal basis for payment of compensation in this country continues to be the common law or the law of Torts as recognised in Anglo Saxon Jurisprudence. Subject to any statutory modification to the general rule, a right to claim compensation arises only when the person against whom the claim is made is proved to have failed to perform a legal obligation causing an injury to any other person or to have committed an act of omission or commission causing a legal injury to the person making the claim. The Motor Vehicles Act, 1939 which was a precursor to the 1988 Act provided a statutory mechanism for enforcement of the rights and obligations flowing under the law of Torts or the common law. Such statutory support notwithstanding if a person was not legally liable to pay any compensation, the support of statutory mechanism provided by the Act did not make him so, except in situations and the extent the statute made a specific departure from that general principle. The question whether proof of fault was essential for claiming compensation under the Motor Vehicles Act first fell for consideration of the Apex Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118. The court held that the proof of fault of the owner or driver of the vehicle involved in the accident that caused death or injury to the claimant or his legal heir was essential. It observed:

“The right to receive compensation can only be against a person who is found to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of Torts…

It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable.”

10. The above position in law continued to hold good till Parliament amended the Motor Vehicles Act, 1939 by amending Act 47 of 1982, incorporating Section 92-A which introduced for the first time the concept of payment of compensation without proof of fault or negligence on the part of the owner or driver of the vehicle. The objects and the reasons for the notable shift in the settled legal position were summarised as under:

“Having regard to the nature of circumstances in which road accidents take place, in a number of cases it is difficult to secure adequate evidence to prove negligence. Further, in what are known as ‘hit-and-run’ accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions, first, for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle, and secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown.”

11. In Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561, the Apex Court recognised that the provisions of Section 92-A of the Motor Vehicles Act, 1939 were a clear departure from the common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disability caused on account of use of any such vehicle. The court held a pedestrian entitled to recover damages on the principle of social justice regardless whether or not he was in a position to prove negligence on the part of the owner or driver of the vehicle involved in the accident. The court observed:

“Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all.

This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified.”

12. In K. Nandakumar Vs. Managing Director, Thanthai Periyar Transport Corporation Ltd., , a Division Bench of the Madras High Court took the view that even for purposes of Section 92-A of the old Act it was necessary for claimant to prove that he was not in any manner responsible for the accident. In cases where the injured or dead was himself responsible for the accident, payment of compensation on no fault basis was not permissible even under the provisions of Section 92-A of the old Act. The court in the process dissented from the contrary view taken by other courts in the country including High Courts of Orissa, Bombay, Kerala and Andhra Pradesh. That view was successfully assailed in appeal before the Supreme Court in K. Nandakumar Vs. Managing Director, Thanthal Periyar Transport Corpn., . The court held that the provisions of subsection (4) of Section 92-A made it clear that payment of compensation on no fault basis could not be rejected even if the person making claim was himself responsible for such death or permanent disablement. Sub-section (4) of Section 92-A reads as under:

“A claim for compensation under Subsection (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.”

13. The decisions of the Supreme Court have thus settled the legal position insofar as payment of compensation on no fault basis u/s 92-A of the old Act and Section 140 of the Motor Vehicles Act, 1988 is concerned. Regardless whether the person injured or killed in a road accident was himself partially or wholly responsible for the accident, compensation under the said provision is payable to the victim or his legal heirs.

14. The fate of the case in hand, however, turns on the true scope of Section 163-A introduced by amendment by Act 54 of 1994 with effect from 14.11.1994. Since the answer to question that falls for consideration before us rests entirely on the interpretation of the said provision, it is necessary to extract the same in extenso:

“163-A. Special provisions as to payment of compensation on structured formula basis.–(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 or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out 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.

Explanation,–For the purpose of this sub-section, permanent disability shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

(2) 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 any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the official gazette, from time to time amend the Second Schedule.”

A brief review of the legislative history of the above provision may be helpful for a proper appreciation of the true purpose underlying the said provision. The Law Commission of India had in its 119th Report recommended amendment to the Motor Vehicles Act for the protection of the victims of hit-and-run accidents in cases where the particulars of such offenders cannot be ascertained. It referred to the changing judicial thought and the compulsions of providing social security to victims of road accidents by dispensing with proof of fault. The recommendations of the Commission were followed by a Committee for review of the provisions of the Act set up by the Government somewhere in the year 1990. This Committee also suggested certain changes in the provisions of the Act taking into consideration that such claim cases pending before the Tribunal take a long time. The recommendations envisaged award of compensation on a structured formula basis where the affected party could have the option of accepting a lump sum compensation as notified under the scheme or of pursuing claims through the normal channels. The recommendations eventually culminated in the introduction of Sections 163-A and 163-B of the Motor Vehicles Act in the year 1994. The Statement of Objects and Reasons for the introduction of the said provisions read as under:

“(2) After the coming into force of the Motor Vehicles Act, 1988, Government received a number of representations and suggestions from the State Governments, transport operators and members of public regarding the inconvenience faced by them because of the operation of some of the provisions of the 1988 Act. A Review Committee was, therefore, constituted by the Government in March 1990 to examine and review the 1988 Act.

The recommendations of the Review Committee are in para (3). The relevant part whereof reads as under:

The recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agree with these recommendations. The Government also considered a large number of representations received, after finalisation of the Report of the Review Committee, from the transport operators and public for making amendments in the Act. The draft of the proposals based on the recommendations of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views in the matter. The important suggestions made by the Transport Development Council relate to or are on account of–

(b) Providing adequate compensation to the victims of road accidents without going into long-drawn procedure.”

15. In The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., , the Apex Court held that the object underlying the above amendment could be discovered from the recommendations of the Review Committee which in turn showed that the purpose behind the amendment was to give earliest relief to the victims of motor vehicle accidents. Prolonged litigation in the Tribunals for determination of compensation was the primary reason why the Committee and eventually Parliament felt that introduction of a structured formula for payment without insisting upon proof of fault would remedy the situation. The court also declared that the compensation payable u/s 163-A was based on a criteria underlying determination of compensation even on fault basis by taking into consideration the annual income, the age of the victim and by applying an appropriate multiplier to the same. The court repelled the contention that compensation u/s 163-A was in addition to the fault liability u/s 168 and held that the non obstante clause in Section 163-A simply excluded determination of compensation on the principle of fault liability. To the same effect is the decision of a Full Bench of this court in Guruanna Vadi and another Vs. The General Manager, Karnataka State Road Transport Corporation, Bangalore and another, , where Section 163-A was declared to be a substantive provision available only for claims based on post-1994 accidents.

16. It is evident from the above that Section 163-A was never intended to provide relief to those who suffered in a road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The recommendations of the Law Commission were concerned more with the victims of hit-and-run accident cases where the particulars of offenders could not be ascertained. It also expressed concern about the security of victims, of road accidents and recommended dispensing with proof of fault on the part of the owner or driver of the vehicle. The recommendations, it is clear, were made from the point of view of victims of accidents on the roads more than those who were responsible for the same. The Review Committee too had viewed the situation from the point of view of such victims and expressed concern about the time it took for disposal of ordinary cases before the Tribunals. The objects and reasons underlying the introduction of the provision also envisaged adequate compensation to victims of road accidents without going into what was described as long-drawn procedure. The decision of the Apex Court in The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., , elucidated the purpose underlying the introduction of Section 163-A in the light of recommendations of the Law Commission and the Review Committee. There is nothing in any one of the above to suggest that Section 163-A was intended to be available even in a situation where the accident in question had caused death or physical injury to none except the person who was rash and negligent in using the motor vehicle. The universal concern was for the safety and the social security of an innocent user of the road and not for a person who had because of his own imprudence, rashness or negligence met with an accident and suffered an injury or death.

17. It is truism to say that legislative history of a provision including the aims and objects which the bill sets out before the legislature are only aids for interpretation of the provision eventually enacted for enforcement. A statutory provision cannot be understood or interpreted only on the touchstone of its historical background or aids like the subject heading or the aims and objects stated in the bill preceding the legislation. While the object of any exercise aimed at interpreting a statute is to ascertain the intention of the legislature enacting it, the golden rule among numerous other rules of interpretation that have been judicially evolved is that the intention of the legislature is to be primarily gathered from the language used in the provision. A statute is an edict of the legislature and the language employed in the same is the determinative factor for understanding the true legislative intent. “Statutes should be construed not as theorems of Euclid” said learned Judge Hand, “but words must be construed with some imagination of the purposes which lie behind them”. [See Lenigh Valley Coal Co. v. Yensavage 218 FR 547; Union of India v. Eilip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 : Institute of Chartered Accountants of India v. Price Waterhouse AIR 1998 SC 74 and Shiv Shakti Co-op. Housing Society v. Swaraj Developers AIR 2003 SCW 2445.

18. Let us then turn to Section 163-A of the Motor Vehicles Act. It envisages payment of compensation for death or permanent disablement due to an accident arising out of the use of motor vehicle to the victim or his legal heirs as the case may be. The term ‘victim’ has not been defined in the Act. The literal meaning of the word as given in Chambers 20th Century Dictionary is: “a living being offered as a sacrifice; one subjected to death, suffering or ill-treatment; a prey; a sufferer”. Black’s Law Dictionary explains the term thus: “The person who is the object of a crime or tort, as the victim of a robbery is the person robbed”. Person whom court determines has suffered pecuniary damages as a result of defendant’s criminal activities; that person may be individual, public or private corporation, government, partnership, or unincorporated association.

19. The right to receive compensation u/s 163-A presupposes that the person who makes a claim is a victim or the legal heirs of a victim. The provision on the plain language employed in the same does not entitle a person who is neither a victim nor his/her legal heir to claim any compensation. In other words, one who is the victim of his own actions of rash or negligent driving cannot invoke Section 163-A for making a claim. The concern of the legislature and the jurists is understandably for the victim in contradistinction to the victimizer or one who falls a victim to his own action. While road accidents generally affect innocent third parties or those making use of public transport, cases where the owner or driver of the vehicle alone suffers on account of his rash and negligent driving are not uncommon. Drunken driving, speeding in what are high performance new generation of automobiles including two-wheelers are accounting for a large number of accidents every day. Quite often these accidents kill or wound even the person who is driving the vehicle. Parliament did not in our opinion intend to provide for compensation to the person responsible for the accident on structured formula basis in such cases. Neither the provisions of Section 163-A nor the background in which the same were introduced disclose any such intention. The argument that Section 163-A is a panacea for all ills concerning the accidents regardless of whether the person who is killed or injured is or is not a victim must therefore be rejected.

20. The issue can be examined from yet another angle. Section 147 of the Motor Vehicles Act prescribes the requirement of a policy of insurance in order that the same may be said to comply with the provisions of Chapter XI. It, inter alia, envisages a policy of insurance which insures the person or class of persons specified in the policy against any liability which may be incurred by him in respect of the death or bodily injury or damage to any property of a third party arising out of the use of the vehicle in a public place. What is important is that the policy must insure the owner against “any liability which arises against him” on account of any death or injury arising out of a motor accident. In the case of an accident where the person who is killed or injured is himself responsible for the accident without the involvement of any other vehicle or agency, no liability qua the insured would arise except where the person who is killed or injured is an employee of the insured and the accident arises out of his employment. In any such case, rashness or negligence of the employee may be inconsequential for purposes f holding the employer liable to pay the compensation under the Workmen’s Compensation Act. The decision of this court in Y.R. Shanbhag Vs. Mohammed Gouse and Others, , has taken the view that where the driver had sustained injuries due to his own driving he cannot maintain a petition under Motor Vehicles Act, his remedy being under Workmen’s Compensation Act. Reference may also be made to another Division Bench decision of this court in B. Prabhakar v. Bachima 1984 ACJ 582, where the court observed:

“From Section 110-AA, it is clear that before an application can be entertained, the accident must have occurred due to the actionable negligence of the owner or the driver of the vehicle…When the accident has occurred due to actionable negligence of the deceased who was himself the driver, no claim by his legal representatives can be entertained under the Act. That being so Section 110-AA will not come into play at all.”

21. We need not dilate on the rights and liabilities of the parties in such a case for that aspect even though raised before us does not strictly speaking fall for a detailed examination. Suffice it to say that in a case where no liability arises against the driver or owner of the vehicle on account of the accident no such liability will arise even against the insurance company with whom the vehicle involved in the accident is insured. Section 163-A of the Act does not in our opinion alter that legal position. It does not alter the legal basis on which a liability arises u/s 147 of the Act nor does it provide a different or modified basis for the same. That being so, in the case of an accident where the person killed or injured is himself responsible for the accident, no liability would arise against the insured nor can any such liability be enforced u/s 163-A of the Act. For a liability u/s 163-A to arise against insurance company, it is essential that such a liability must first arise against the insured and the insurance company u/s 147 of Motor Vehicles Act.

22. Two decisions relied upon by the appellants may at this stage be noticed. In Kokla Devi Vs. Chet Ram and Another, , a Division Bench of the High Court of Himachal Pradesh held that Section 163-A had brought about a drastic change in the concept of tortious liability prevailing prior to it. The court was of the view that the ‘non obstante’ clause in Section 163-A permitted even the tortfeasor to claim compensation on the principle of no fault liability. With respect to the Hon’ble Judges who delivered the said decision we find it difficult to subscribe to that view. Section 163-A of the Act no doubt brings about a significant change in the legal position as regards the obligation to prove fault is concerned, but the change is not so drastic so as to make even a tortfeasor entitled to claim compensation for his own act of rashness, negligence or imprudence. The ‘non obstante’ clause in Section 163-A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant u/s 163-A therefore need not prove that the driver or the owner of the vehicle was at fault in the sense that the accident had occurred on account of any negligence or rashness on his part. That does not, however, mean that claimant can maintain a claim on the basis of his own fault or negligence and argue that even when he himself may have caused the accident on account of His own rash and negligent driving, he can nevertheless make the insurance company pay for the same. Inasmuch as Section 163-A dispenses with proof of fault, it does so only where the claimant is not solely responsible for the accident. The correct approach appears to us to be to find out whether in the absence of Section 163-A, a claim could on the facts pleaded be maintained by claimant, if the answer is ‘no’ because the claimant was himself the tortfeasor, the provisions of Section 163-A would not come to his rescue and make such a claim maintainable. If the answer is ‘yes’ the beneficial provisions u/s 163-A would absolve the claimant of the obligation to prove that the accident had taken place on account of the fault of the driver or owner of the vehicle provided he is willing to accept the amount of compensation offered according to the structured formula prescribed in the Schedule. That is the only way in which the anomaly arising out of a contrary interpretation can possibly be avoided.

23. In New India Assurance Co. Ltd. Vs. Muna Maya Basant, , a Division Bench of Gujarat High Court also took the view that non obstante clause appearing in Section 163-A permitted even the tortfeasor to claim compensation and that the insurance company can contest the claim only on the ground of total absence of a contract of insurance and not otherwise. For the reasons that we have set out above, we regret our inability to follow that line of reasoning. As held by the Apex Court in The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., , the non obstante clause simply excludes determination of compensation on the principle of fault liability. The said provision does not permit a person to place a premium upon his own fault and make the insurance company pay for the same.

24. We may before parting make it clear that the accident in the instant case had taken place while the deceased was himself riding a two-wheeler. No other vehicle was involved in the accident against whose driver or owner could the claimant make a claim for payment of compensation on no fault basis u/s 163-A of the Act. There was no possibility of even accusing another vehicle or its driver of negligence or rashness. In cases where the accident involves two vehicles one accusing the other of negligence, it may be open to both to maintain a claim on no fault basis u/s 163-A of the Act. That is because such a claim will be permissible no matter the driver or the owner of the other vehicle involved in the accident may dispute his negligence in the matter. The argument that while the claimant may not be required to prove fault, the respondents can prove that the accident had not occurred on account of any fault on their part must fail for once the respondent is allowed to set up that defence, the claimant will have to necessarily lead evidence to rebut the same by proving that the accident had indeed occurred on account of the fault of the respondents. Any such requirement of proving the fault having been dispensed with by Sub-section (2) to Section 163-A, permitting the respondents to set up the defence that the accident was without their fault would amount to negating the effect of the statutory provision dispensing with proof of fault.

25. The only aspect that remains to be examined is, whether the deceased was an employee of the owner of the two-wheeler involved in the accident. The Tribunal has disbelieved the version of the claimants that he had been engaged by the owner of the scooter as his driver to drive the same. We find no reason to differ. The version does ex facie appear to us to be unacceptable apart from being highly improbable. The owner of the two-wheeler is an employee of the I.T.I. Ltd. There is no earthly reason for him to engage a driver for driving his scooter, when he is not shown to be even possessed of a driving licence. The story about the deceased being an employee is clearly unbelievable and has been rightly rejected. The claimants cannot, therefore, maintain a claim even on that basis as rightly held by the Tribunal.

26. In the result, we see no merit in this appeal which fails and is hereby dismissed, but in the circumstances without any orders as to costs.


(2004) ACJ 1289