R VANAMARAJU Vs. ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION

JUDGEMENT

(1.) This an appeal under section 11-D of the Motor Vehicles Act is at the instance of the petitioner-claimant. The petitioner filed a petition under section 110-A Of the Motor Vehicles Act for award of compensation of Rs. 8,200 with interest from the date of accident for the damage caused to the shop of the petitioner in a bus accident. The petitioner is the proprietor of cloth shop at Razole. On 31st January, 1977, a bus belonging to Andhra Pradesh State Road Transport Corporation ran into his shop and destroyed his show-case and furniture. As the bus approached the shop of the petitioner which was in the main road Razole, it is being driven rashly and negligently by the 2nd respondent and entered into the petitioner's shop. The front portion ofthe shop was damaged and a tailor received minor injuries. Because of the impact of the bus show cases, an almyrah, lights, a sewing machine, a cycle, a table fan and other articles worth Rs. 3,200 were destroyed. The petitioner suffered shock and he was unable to carry on his business for some time and there by the business turnover in his shop suffered considerably. The estimate of loss in business is made at Rs. 4,000 and for mental shock the claim of Rs. 1,000 is claimed. The 1st respondent opposed the claim by stating that the bus was not driven rashly or negligently by the 2nd respondent driver but the accident occurred due to a cyclist and another person going on a motor cycle, suddenly crossing the road. The bus was then going at a speed at 15 KM per hour and suddenly a cyclist came in front of the bus carrying another person on the carrier of the cycle. At the same time, another person riding a motor cycle, also carrying one more person on its saddle came in the opposite direction on the right side. The motor cyclist crossed the road to the other side and so the driver of the bus had to swerve it to the right side and as the breaks failed the accident occurred. The bus did not crash into the shop and no damage was caused to the property but for the failure of the breaks the accident would not have occurred. The petitioner did not suffer any loss or damage or mental shock and the claim deserves to be rejected. The 2nd respondent in a separate counter denied the allegation of rash and negligent driving, it is also denied that the bus dashed against the shop and the petitioner or anybody else sustained injuries in the alleged accident. The issues were framed regarding the rash and negligent driving by the 2nd respondent and the quantum of compensation payable. The Court below held that there is no satisfactory and clinching proof of the bus having been driven by the 2nd respondent rashly and negligently but some damage appears to have been caused by thd dashing of the bus against the shop. Inso far as quantum of damages the Court below ruled that the petitioner is not entitled to award of any compensation in consequence of the accident in question.

(2.) The learned Counsel for the appellant contended that admittedly the bus hit against the shop and in view of the damage caused to the shop the Court below should have awarded damages as claimed by the petitioner. The learned Counsel for the respondent at the outset raised a preliminary objection that this claim for damage of the property is not maintainable as the accident occurred on 31st January, 1977, and claim petition was filed on 11th July, 1977, prior to the amendment made to section 110-A of the Motor Vehicles Act by inserting clause (ad) providing for award of damages to the owaer of the property and in any event the petitioner is not entitled to the award of any compensation in the circumstances. To appreciate the preliminary objection raised by the learned Counsel for the respondent it is necessary to get at sections 110 and 110-A of the Motor Vehicles Act to the extent relevant.

(3.) Section 110 authorises the State Government to constitute the Motor Accidents Claims Tribunals specifying the area of operation for the purpose of adjudicating claims for compensation in respect of all accidents involving death or bodily injury to persons or damages to any property of a third party. Section 110-A prior to insertion of amendment, by introduction of clause (aa) with right effect from 16th January, 1979, conferred on the person who sustained injury or the legal representatives in the event of death to claim compensation. The absence of specification of right to claim compensation in respect of damage to property is significant and conspicuous. The essence of the contention of the learned Counsel for the petitioner is that the expression "injury" in unamended section 110-A is comprehensive enough to take in the damage to the property and the amendment by (ad) by Act XLVII of 1948 with effect from 16th January, 1979, is clarificatory and should not be considered as a remedy or right conferred for the first time. The learned Counsel for the respondent contended that there was deliberate omission prior to amendment by (aa) and the expression "injury" should be restricted and allocated to bodily injury only. The learned Counsel referred to the decision of Karnataka High Court in Karnataka State Road Transport Corp. v. Jyothi Constructions, Mangalore, In this case the Karnataka State Road Transport Corporations instituted a claim against the respondent for damages to the bus caused by a truck due to accident. The plea by the respondent was that section 110-A (1) did not enable a person to prefer an application for damages to the property and the combined reading of sections 110 and 110-A indicate that the persons who suffer merely damages to the property are not entitled to apply to the Claims Tribunal for compensation. In this context the expression "injury" has has been interpreted as wide enough to cover damages to the property also. The next decision relied upon by the learned Counsel for the appellant is Haryana State v. Pusa Ram. In this case the Haryana State preferred a claim application before the Tribunal by way of compensation on the allegation that 5 buffaloes of the progeny testing farm, Hissar were killed by rash and negligent driving of truck No. HRH-7467. The claim was resisted by the respondent who raised a preliminary objection that the Tribunal has no jurisdiction to entertain the same. On these facts the Punjab and Haryana High Court held that "injury" in clause (a) of section 110 bears comprehensive ambit and covers damage to the property also. The learned Counsel for the respondent at the outset relied upon the unreported decision of Muktadar, J. in A. A. O. 445 of 1979, dated 8th October, 1980. In this case it was contended that the Tribunal has no, jurisdiction to entertain the claim of damage to the property before the amendment which came into force on 26th December, 1978. In this case the accident occurred on 18th March, 1977. This decision centered round the aspect of retrospectivity of the amendment and in view of the committed prospective texture of the amendment retrospective effect cannot be attributed to the amendment but the other dimension whether the expression "injury" in the unamended provision takes in its fold the damages to the property also was not considered.