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High Court of Kerala
R. BASANT & K. SURENDRA MOHAN
New India Assurance Company Ltd., Thrissur Dist. rep. by its Administrative Officer
Versus
Remya, Thrissur Dist. & Others
MACA No. 507 & 816 of 2007
Decided on : 02-11-2011
Motor Vehicles Act 1988 - Sections.163A, 163A( 1) and 140 - Accident Claim - Compensation - Workmens Compensation Act 1923 - Section. 4( 1)(c)(ii) - Permanent disablement in respect of non-scheduled injuries can be assessed by any qualified Medical Practitioner - Disability - Claimant while traveling in the autorickshaw, a beer bottle thrown from some other vehicle hit her on her face and she suffered injuries - Accident arose out of the use of motor vehicles and falls within sweep of S.163A - Whether the expression "arising out of" both in S.163A & 140 includes all accidents connected with use of motor vehicle ? Whether the three expressions (i) "caused by use of motor vehicle" , "arising out of use of motor vehicle" and "connected with use of motor vehicle" are entirely different concepts ? Whether liability under S.163A must be compulsorily insurable liability under S.147 ? Whether all claims under Ss.140 & 163A falls within sweep of S.165 ? When claimant while traveling in an autorickshaw is hit by a beer bottle thrown from some other vehicle and suffers injuries on her face, can the accident be said to have arisen out of the use of motor vehicle and falls within sweep of S.163A ? Whether the "permanent disability" referred to in the Explanation actually refers to and explains "permanent disability" referred to in S.163A(1) and also S.2(9) of Workmen's Compensation Act ? Whether extent of permanent disability in respect of non-scheduled injuries, can be assessed by any qualified Medical Practitioner as stipulated in S.4(1)(c)(ii) of W.C. Act - Appeal against Order - Held, (i) The expressions "caused by" , "arising out of" and "connected with" are used by legislature to indicate the connection between the cause and the effect - use of the motor vehicle being the cause and the accident being the effect/result. The expression "caused by" when used demands that there must be an immediate, proximate and direct nexus between the use of the motor vehicle and the accident. (ii) On the contrary, if the expression "arising out" is employed, it indicates that the nexus need not be as immediate, as proximate or as direct as in the former case; but certainly the effect must be a consequence of the cause. (iii) If the expression "connected with" is used to link accident and the use of the motor vehicle, it is enough if the accident occurs in the course of the use of the motor vehicle. Even a very casual causal connection will be sufficient between the cause and the effect when the expression "connected with" is used by the legislature. (iv) The legislature may use these expressions interchangeably. Context gives colour and meaning. In a given context though the expression used is "arising out of" the intention of the legislature may only be to convey what is intended by the use of the expression "connected with" . S.140 of the M.V. Act deals with a specified amount which even allegedly is not complete compensation for the loss suffered. Under S. 140 of the M.V. Act and its predecessor provisions the principle of no fault liability was introduced into the Indian law relating to compensation for motor accidents. Now under S.l63A of the M.V. Act the relief is not interim and is not to be adjusted towards the compensation to be determined finally. The expression "arising out of" both in S.l63A and S. 140 of the M.V. Act must be read and understood in such a manner as to include all accidents connected with the use of motor vehicle - The expression "arising out of use of the motor vehicle" appearing in S. 147 of the M.V. Act and S.165 of the M.V. Act must also receive identical consideration. The liability under S.163A must certainly be a compulsorily insurable liability under S. 147 of the M.V. Act. Similarly, all claims under Ss. 140 and 163A of the M.V. Act must be held to be falling within the sweep of S.165 of the M.V.Act as has been made clear by the explanation. The expression "arising out of the use of vehicle" in S.147(1) and its proviso and the expression "arising out of use of the motor vehicle" in S.165 of the M.V. Act as also the expression "arising out of the use of motor vehicle" in S.140 and S.163A of the M.V. Act must cover all cases of accidents connected with the use of motor vehicle. Such a wider and expansive meaning ought to be assigned to the expression "arising out of the use of motor vehicle" in order to serve the statutory purpose and the legislative intention; particularly, in the context of S.l63A of the M.V.Act. The victim child was travelling in an autorikshaw. She happened to be present at the spot where the accident occurred primarily because of her position as a traveller in the vehicle. It is idle to contend that even if she were there, otherwise than in her capacity as a passenger of the vehicle she might still have suffered the accident. That definitely is not the yardstick by which the expression "arising out of the use of motor vehicle" is to be construed. The body of S.163A(1) refers only to "permanent disablement" ; whereas the explanation refers to "permanent disability" . It is stated that "permanent disability" for the purpose of the sub-section shall have the same meaning and extent as in the Workmen's Compensation Act. Evidently it appears that there is some confusion and inelegance. When the body of S.l63A only speaks of "permanent disablement" , we fail to understand how and why "permanent disability" must be defined in the Explanation. Moreover, the Workmen's Compensation Act, 1923 (the Employees' Compensation Act now) does not define permanent disability at all. It also speaks only of partial disablement and total disablement. It therefore is easy to assume that though the explanation refers to "permanent disability" what is really intended to be explained is "permanent disablement" used earlier in S.l63A(1) - that it is intended to carry the meaning of the word partial and total "disablement" defined in S.2(g) and 2(l) of the Workmen's Compensation Act. The Schedule prescribes injuries which are deemed to result in permanent total are partial disablement. There can be injuries which are not specified in the Schedule which may also result in permanent disablement - total or partial. The extent of permanent disablement in respect of non-scheduled injuries can be assessed by any qualified Medical Practitioner as stipulated in S.4(1)(c)(ii) of the Workmen's Compensation Act - Going by the definition in S.2(g) and 2(l) of the Workmen's Compensation Act, it is the extent of disability suffered vis-a-vis the ability prior to the accident which is to be ascertained under the Workmen's Compensation Act. So reckoned, even assuming that the abnormality of the other eye cannot be attributed to the accident, that cannot affect the assessment of extent of disablement under the Workmen's Compensation Act - true to S.2(g) and 2(1). Ability to work prior to the accident and the extent of reduction in ability to do such work is the crucial consideration in S.2(g) and 2(1) of the Workmen's Compensation Act - appeals are allowed in part.
Basant, J.
1. How is the expression “accident arising out of the use of motor vehicle” in Sec.163A of the Motor Vehicles Act (for short ‘the M.V. Act’) to be construed? Does that expression take in every accident suffered in the course of use of a motor vehicle? Is the causal connection that the accident was suffered when the victim was actually traveling in a motor vehicle sufficient? Can the expression “accident arising out of the use of motor vehicle” be read down to mean “accident connected with the use of the motor vehicle”? Does the purpose and context of Sec.163A of the M.V. Act justify such an expansion of meaning for the expression? These are the first set of questions that arise in these appeals.
2. The second question that arises for determination is as to how the expression “permanent disablement” in the body of Sec.163A is to be understood? This, in turn, calls for an interpretation of the scope and ambit of Entries 25, 26 and 26A of Part II Schedule I of the Workmen’s Compensation Act also.
3. To the vitally relevant facts at the outset. The claimant Remya, a minor girl aged about 12 years suffered injuries while she was traveling in an autorickshaw owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent insurance company (we refer to the parties in the manner in which they are ranked before the Tribunal). While she was traveling in the auto rickshaw, a beer bottle thrown from some other vehicle had hit her on her face and consequently she had suffered injuries. She lost vision of one eye completely. She allegedly suffered partial loss of vision of the other eye. She claimed an amount of Rs.2,75,000/- as compensation. The claim was lodged under Sec.163A of the M.V. Act.
4. The accident and the suffering of injuries by Remya/the claimant were not disputed. A contention is raised that Sec.163A of the M.V. Act does not cover the claim. In short, the contention raised is a contention in law. The argument raised is that the accident in this case did not arise out of the use of the motor vehicle. There are disputes regarding the extent of permanent disablement and the quantum of compensation payable also.
5. The Tribunal by the impugned award allowed the petition and directed payment of an amount of Rs.1,10,000/- as compensation. The claimant has preferred M.A.C.A. No.816/07 aggrieved by the quantum of compensation awarded. The insurance company has preferred M.A.C.A. No.507/07 raising the contention that the accident in the instant case did not arise out of the use of motor vehicle and hence no compensation is liable to be paid under Sec.163A of the M.V. Act.
6. It is in this context that the expression “arising out of the use of motor vehicle” falls for consideration in these appeals. It will be advantageous, at the very out set, to extract Sec.163A of the M.V. Act:
“163A. 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 legal heirs or the victim, as the case may be.
Explanation,--For the purposes 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
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