Gujarat High Court
Gulamrasul Rehman Malek vs Gujarat State Road Transport on 28 November, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
GULAMRASUL REHMAN MALEK....Appellant(s)V/SG S R T C....Defendant(s) C/FA/1437/2009 CAV JUDGEMNT
FA14372009Cj2.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1437 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?` Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No =========================================================== GULAMRASUL REHMAN MALEK Versus GUJARAT STATE ROAD TRANSPORT CORPORATION ========================================================= Appearance:
MR MTM HAKIM, ADVOCATE for the Appellant.
MS KIRAN D PANDEY, ADVOCATE for the respondent ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA Date : 28/11/2013 CAV JUDGEMNT
1. This appeal under section 173 of the Motor Vehicles Act is at the instance of an unsuccessful applicant under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) and is directed against an order dated 1st August 2008 passed by the Motor Accident Claims Tribunal [Aux.], Fast Track Court No.7, Vadodara, in Motor Accident Claim Petition No. 1974 of 1998 by which the learned Tribunal dismissed the claim-application.
2. The case made out by the appellant in the claim-application under section 166 of the M.V. Act was that on 23rd November 1996, while the appellant was going to Vadodara Kirti Stamb from Jambusar by driving an ST Bus bearing registration No. GJ.1.Z.4696 with moderate speed and by observing the traffic rules, when he reached near Padra village, the steering of the bus failed due to a technical defect, as a result, the bus crossed the road and dashed with a tree resulting in fracture-injury to the appellant as indicated in the Medical Certificate. According to the claimant, the said accident had taken place solely on account of technical defect in the steering of the bus. Consequently, the appellant prayed for compensation of Rs.5 lakh from the owner of the bus who was the employer of the appellant, viz. Gujarat State Road Transport Corporation [hereafter, GSRTC]. The appellant claimed that he was aged 50 years at the time of accident and was working under the respondent as Driver for the last 26 years and at the time of the accident, he used to get Rs.10,000/- a month as salary including the payment for the overtime. The appellant further alleged that in view of the injuries suffered, he could not attend his duties from December 1996 to February 1997 and thus, suffered the loss of leave. He also suffered the loss of overtime-benefit and due to the fracture injuries on his right leg, he was downgraded from the post of Driver to the post of Peon and thus, suffered a loss of Rs.5000/- a month. The appellant further claimed that due to downgrading of his post, he would suffer loss of increment and Provident Fund at the time of his retirement. Hence, he claimed Rs.5 lakh as compensation.
2.1 The GSRTC has, however, opposed the claim application by filing written statement, inter alia, contending that the claim-application was not maintainable as due to the negligence on the part of the appellant himself, the accident occurred. It was also pointed out that the driver of the bus was not covered for any scheme of compensation under the M.V. Act as regards 3rd party risk and the accident having occurred due to negligence of the injured himself, he is not entitled to claim any compensation. The respondent also denied other allegations including his monthly income as shown in the claim-application.
2.2 At the time of hearing, the appellant himself deposed in support of his claim-application and on behalf of the respondent, Narendra Natwarlal Modi and Ajit Anandrav Vangekar, two employees of the respondent, gave evidence.
2.3 The learned Tribunal below, on consideration of the materials on record, accepted the defence of the employer and held that there was no inattention on the part of GSRTC, the owner of the bus, and it was due to the negligence on the part of the appellant himself that the accident had occurred, and, consequently, the appellant was held not entitled to claim any amount under section 166 of the M.V. Act.
3. Being dissatisfied, the claimant has come up with the present appeal.
4. Mr. Hakim, the learned advocate appearing on behalf of the appellant, has taken this court through the entire materials on record including the depositions and the exhibits. By referring to the register maintained by the respondent regarding complaint relating to the buses, Mr. Hakim tried to convince this court by showing that from 27th October 1996 till 17th November 1996, there were several complaints from drivers regarding false-play of the steering. However, from the register maintained from 18th November 1996 till the date of the accident, viz. 23rd November 1996, it appears that there was no complaint. There is no dispute that the appellant also did not lodge any formal complaint regarding the excess-play of the steering on the date of accident.
5. It appears from the deposition of witness No.1 on behalf of the respondent, viz. Ajit Anandrav Vangekar, who is a Mechanic of the respondent, that he used to serve at the relevant time at Jambusar Depot as Head Mechanic. He has stated that it was his duty to check buses everyday before those were taken from the workshop for trips. The bus in question was of Jambusar Depot and this particular bus used to ply between Jambusar and Kirti Sthal regularly. He has specifically asserted that the allegation that the steering of the bus had failed was not true. There is no such entry in the log sheet or defect sheet for that date or for four days prior to the said date. He further stated that a defect-report has been kept on record at Exh. 36 and there was no complaint or defect-report in the steering of the bus. He has further stated that play in the steering is a variable term and one driver may find it regular and another may find it hard. He has further stated that the steering is set with a screw and for the one who needs it tight, it is to be tightened with the screw and the person who wants it loose, it is to be regulated with the screw. He has denied that the accident can occur just because the steering was in a play condition. On going through the relevant entry for 18th, 19th, 20th and 22nd November, he stated that there was no defect in the vehicle during this time. He has further proved the voucher for the steering box that was sent for verification to the department for examination. By going through the report of various dates in the month of October 1996 and November 1996 before the accident, he has stated that there was no fault found in the steering after 17th November 1996.
5.1 In the cross-examination, he has stated that he has not done any technical examination after the accident.
6. Narendra Natvarlal Modi, the witness No.2 on behalf of the respondent, has in his evidence stated that the bus in question arrived for testing of steering box and it was tested, and there was no technical fault found in the examination of the steering box. He has denied a suggestion that he has no knowledge regarding the condition of the bus in question. In cross examination, he has stated that there was no evidence with him to suggest that the bus or the steering would have been examined by him personally. He further denied that he gave false evidence.
7. After hearing the learned advocate for the parties and after going through the evidence on record, I find that there is no dispute that at the time of the accident, the appellant was driving vehicle, and in the accident concerned, there is no involvement of any other vehicles but the fact remains that the bus went out of the road and dashed with a tree resulting in the injuries to the appellant.
8. It is now well settled that in order to succeed in a proceeding under section166 of the M.V. Act, it must be established that the victim has suffered the injuries arising out of an accident and in the said accident, the respondent is responsible. In the case before us, no Insurance Company is involved, and, therefore, in order to succeed in this proceeding under section 166, it is for the appellant-claimant to prove that he was injured due to any negligence of the owner of the vehicle. After going through the evidence, we find that on the date of the accident, the appellant, although being entrusted as the driver of the bus, made no complaint about the steering that it has false play or that the steering was defective. Even after driving the bus for about 36 kms., he never complained that the bus was not fit or safe for driving. Therefore, on the evidence on record, it is not possible to infer that there was any negligence on the part of the employer in forcing the appellant to drive a defective bus leading to the accident. It is for the appellant to prove such negligence and he has failed to give any evidence establishing such fact. He being the driver, it was his fault in dashing with a tree without applying brake. If the brake was applied at the appropriate time, the accident could have been averted. No explanation has been given by the claimant as to what prevented him from applying brakes even if it is assumed that the steering was not properly functioning.
9. I, therefore, find that in the facts of the present case, the learned Tribunal below rightly held that in the absence of any negligence on the part of the employer, the appellant himself being the driver, was not entitled to get any relief under section166 of the M.V. Act.
10. At this stage, Mr. Hakim, the learned Advocate for the appellant, made an alternative submission. According to him, the appellant being an employee of the respondent, under the provisions of the Employees Compensation Act (EC Act, hereafter) [erstwhile the Workmen s Compensation Act] even if there is no negligence on the part of the employer, if he is injured during the course of employment, he is entitled to get the benefit of compensation unless the case comes within the purview of the proviso to Section 3(1) of the said Act. Mr. Hakim contends that under section 167of the M.V. Act, when the victim is an employee and the accident occurred in course of employment, he has twofold remedies either under the E.C. Act or under the M.V. Act, but not under the both. By relying upon the aforesaid section 167 of the M.V. Act, Mr. Hakim contends that even if his client is deprived of the benefit under section166 of the M.V. Act, his client is at least entitled to the benefit under the E.C. Act and thus, it is a fit case where the learned Tribunal below should have granted the benefit available under the E.C. Act.
11. In support of the above submission, Mr. Hakim relied upon a decision of a learned Single Judge of this Court in the case of SATTARBHAI ISABAI v. REHMATBEN MEHBOOB SANDHI reported in 2011 (0) GLHEL-HC 226502. Paragraph 13 and 14 of the said judgment are relevant and those are quoted below:
13. In view of the above scenario, it is evident that the accident has occurred during the course of employment. It is not disputed that the claimants could have preferred claim under the Workmen s Compensation Act. The claimants could have claimed compensation from the employer and the appellant insurance company with whom the vehicle was insured on the ground that the deceased died in the course of his employment. This is especially so when the claimants have not raised the contention with regard to payment of additional premium before the Tribunal.
However, it would not be appropriate to relegate the claimants to resort to the provisions of Workmen s Compensation Act at this stage and it is only appropriate to consider the appropriate compensation under Workmen s Compensation Act.
14. The salary of the deceased was Rs.1000/- and therefore the loss can be taken at Rs.400/-. The deceased was 31 years old and therefore the factor of 205.95 can be applied. Hence the claimants are entitled to Rs.82,380/-(Rs.400 x 205.95) under the Workmen s Compensation Act. Thus the appellant Insurance Company is liable to make the said amount by way of compensation.
12. After going through the aforesaid decision, I am unable to subscribe to the view taken by the learned Single Judge that even a Tribunal constituted under the M.V. Act can grant compensation under section 166 of the Act although there is no negligence on the part of the respondent by taking recourse to the provisions of the E. C. Act. It is well known that S. 166 gives authority to the Tribunal constituted under the said Act to grant compensation only if it is found that there was negligence on the part of the owner of the vehicle or the driver of the vehicle. In this case, the appellant being himself the driver, he cannot take advantage of his own wrong nor can he claim any compensation against himself unless such claim is covered by any insurance on payment of premium. Although under the E.C. Act he was entitled to claim compensation even if there was no negligence on the part of the employer, if the accident occurred in the course of his duty and the case is not covered under the circumstances mentioned in the proviso to Section 3(1) of the said Act, the petitioner in this case chose to file a claim-application under the M.V. Act. The Tribunal, constituted under the M.V. Act in a situation like the present one, cannot give compensation if there is no negligence on the part of the employer. In other words, a tribunal constituted under the M. V. Act can grant compensation only if the case comes within the purview of the M. V. Act and there is no scope of applying the provisions of the EC Act.
13. Over and above, the scopes of appeals under Section 30 of the EC Act and Section 173 of the M. V. Act are different as pointed out by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. v. MASTAN reported in (2006) 2 SCC 641 by making the following observations:
19. Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in the course of employment. The amount of compensation would be determined having regard to the nature of injuries suffered by the worker and other factors as specified in the Act. The findings of fact arrived at by the Commissioner for Workmen's Compensation are final and binding.
Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantages would lead to an incongruous situation.
14. Thus, in an appeal under Section 173 of the Act, there is no scope of giving relief under Section 30 of the EC Act. The learned Single Judge, as it appears, totally overlooked the above view of the Supreme Court while deciding the case of SATTARBHAI ISABAI v. REHMATBEN MEHBOOB SANDHI (supra) and therefore, I am unable to accept the said decision as a valid precedent.
15. Moreover, in the case before us, the appellant got the benefit of No Fault Liability under section 140 of the M.V. Act. As pointed out by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. v. MASTAN (supra), if a claimant by taking aid of Section 167 of the M. V. Act elects to take resort to the provisions of the M. V. Act he is precluded from resorting to the EC Act. The following observations of the Supreme Court are relevant and are quoted below:
22. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non-ob-stante clause providing for such an option notwithstanding anything contained in the 1923 Act.
23. The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.
24. In Nagubai Ammal v. B. Shama Rao (AIR 1956 SC 593), it was stated :
"It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto."
25. In C. Beepathuma v.
Velasari Shankaranara-yana Kadambolithaya (AIR 1965 SC 241), it was stated :
"The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland-
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."
(see Maitland's lectures on Equity, Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :
"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
(See also Prashant Ramachandra Deshpande v. Maruti Balaram Haibatti, 1995 Supp (2) SCC
539).
26. Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti (1998) 6 SCC 507 stated that the law, thus :
"The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. (See also Devasahayam (Dead) by LRs. v. P. Savithramma and Others (2005) 7 SCC 653)
27. The First Respondent having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof.
16. Thus, I am unable to accept the submission of Mr Hakim and hold that after having received the benefit under Section 140 of the M. V. Act and having elected to proceed under Section 166 of the said Act, the petitioner is precluded from approaching the forum constituted under the provision of the EC Act.
17. As a last resort, Mr. Hakim submitted that his client may now be permitted to withdraw the proceedings under Section 166 of the Motor Vehicles Act to enable him to file a fresh proceeding under the EC Act. It is well-known that the amount of compensation under the Motor Vehicles Act is more than one prescribed under the EC Act and with an expectation to get more amount of compensation, the Appellant, in spite of concurrent remedy under both the Acts, decided to avail of the provision of the Motor Vehicles Act knowing fully well that in the other Act even without proving negligence he could get the benefit of compensation. In my opinion, after dismissal of the proceedings on merit, he should not be permitted to withdraw the proceedings at the appellate stage by taking aid of Order 23 Rule 1 of the Code of Civil Procedure.
18. In this connection, I may profitably refer to the following observations of the Supreme Court in the case of K.S. BHOOPATHY AND OTHERS V. KOKILA AND OTHERS reported in AIR 2000 SC 2132 where the said court pointed out the duty of an appellate court while considering prayer for withdrawal of a suit at the appellate stage:
The provision in Order XXIII, Rule 1, C.P.C. is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided, (1) where the Court is satisfied that a suit must fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the Court or Courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate Court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII, Rule 1(3), C.P.C. for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower Courts and inordinate delay in disposal of the cases.
(Emphasis supplied by me).
19. With the expectation of getting more compensation, the appellant having resorted to the provision of the Motor Vehicles Act and after contested hearing having failed to prove negligence of the employer which is a sine qua non for maintaining such application, his prayer for withdrawal at the appellate stage after full-fledged hearing of this appeal would amount to violation of the principles laid down in the Supreme Court decision not only in the case of NATIONAL INSURANCE CO. LTD. v. MASTAN (supra) but also of the one laid down in the case of K.S. BHOOPATHY AND OTHERS V. KOKILA AND OTHERS (supra). I, therefore, refuse such prayer for withdrawal after the lapse of 15 years from the date of initiation of the proceedings.
20. On consideration of the entire material on record, I, thus, find no merit in this appeal and the same is consequently dismissed. No costs.
Sd/-
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