Gauhati High Court
M/S. New India Assurance Co. Ltd vs Rina Mech And 4 Ors on 28 February, 2019
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/8
GAHC010192402013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 114/2013
1:M/S. NEW INDIA ASSURANCE CO. LTD.
HAVING ITS REGISTERED OFFICE AT NEW INDIA ASSURANCE BUILDING
87 MAHATMA GANDHI ROAD, FORT MUMBAI 400001 WITH ONE OF ITS
REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH, GUWAHATI-5,
REPRESENTED BY ITS CHIEF REGIONAL MANAGER.
VERSUS
1:RINA MECH and 4 ORS.
W/O LATE ASHINI KR. MECH.
2:DEEP MECH
S/O LATE ASHINI KR. MECH
BOTH ARE RESIDENT OF PADUMONI GAON
P.O. BHADOI PANCHALI
DULIAJAN 786602
P.S. DULIAJAN
DIST. DIBRUGARH
ASSAM.
3:MRS. DIPA RANI MITRA DEY
W/O SRI S.K. DEY
VILL. HARIRAM BORA PATH
SIVASAGAR
P.O.SIVASAGAR 785640
DIST. SIVASAGAR
ASSAM.
4:BHABEN PHUKAN
S/O SRI G PHUKAN
VILL.JALUKANI
SIVASAGAR
P.O. DICHOW
SIVASAGAR 785640
Page No.# 2/8
DIST. SIVASAGAR
ASSAM.
5:MRS. RIMA MECH GOGOI
W/O SRI INDRAJIT GOGOI
D/O LATE ASHNI KR. MECH
VILL.JAPIOJIA
P.O. USHAPUR
DULIAJAN 786602
DIST. DIBRUGARH
ASSAM.
6:MRS. RISHMA MECH GOGOI
W/O SRI DULUMAN BARUAH
D/O LATE ASHINI KR. MECH
VILL. BORKHAT
SONAPUR
P.O. SONAPUR
782403
DIST KAMRUP
ASSAM
Advocate for the Petitioner : MR.A AHMED
Advocate for the Respondent : MR.A K GUPTAR- 1and2
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 28-02-2019 I have heard Ms. M. Choudhury, learned counsel for the appellant Insurance Company. I have also heard Shri. P. J. Saikia along with Shri. A. K. Gupta, learned counsels for the claimant/respondent.
2. The principal ground of challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 is with regard to the application of Section 167 of the said Act. In this case, the appellant has put to challenge a judgment and award dated 12.12.2012 passed by the Motor Accident Claimant's Tribunal, Dibrugarh in M.A.C. Case No. 27/2011. The case projected in the appeal is that the claimant had earlier approached the Workmen's Compensation Commissioner, Sivsagar vide SWC Case No. 01/2012, in which vide judgment dated 17.02.2012 a sum of Rs. 4,50,000/- has been awarded. Thereafter, the claim was made before MACT, Dibrugarh in which an award of Rs. 19,20,976/- has been passed. As indicated above, the challenge is mainly on the ground that under Page No.# 3/8 Section 167 of the Motor Vehicles Act, 1988, there is an express bar in instituting two proceedings pertaining to the same accident one under the WC Act and one under the Motor Vehicles Act 1988.
3. The facts in brief are narrated here in below.
4. The claimant and her minor son are the legal heirs of one late Asini Kumar Mech. On 03.03.2011 the husband of the claimant had met with an accident leading to his death by involvement of a vehicle bearing registration No. AS-04-E-9515 which was duly insured with the New India Insurance Company Limited(appellant herein). The involvement of the Vehicle in question and the cover by the appellant are not matters of dispute. The said accident was reported to the Demow Police Station which had registered a case being Demow P.S. Case No. 37/2011 under Section 279 IPC. Necessary Post Mortem was done and as stated above the fact of death in the aforesaid motor accident is not a matter of dispute.
5. The claimant had filed an application for compensation in the WC Court against the employer of her husband - M/s Shiv-Vani Oil & Gas Exploration Service Ltd.. At his stage it will be apposite to state that the employer of the deceased M/s Shiv-Vani Oil & Gas Exploration Service Ltd. was not the owner of the vehicle in question and the further fact that the claimant before WC Commissioner was against the employer only. In the said claim neither the owner of the vehicle nor the insurance company of the vehicle were parties as no claim, whatsoever was made against them. In other words, the claimant was restricted to the entitlements which the deceased was admissible from his owner. It is only a matter of coincidence that the death which was in harness was because of a motor vehicle accident. In other words irrespective of the fact whether death in harness was because of a motor vehicle accident or otherwise the entitlement before the WC Commissioner was an existing and independent entitlement. It is also not the case in hand that WP Case was against the owner of the Vehicle in which the appellant company would come into the scene under the contract to indemnify.
6. The LCR called for has also been perused including the award of WC Commissioner dated 17.02.2012 which has been exhibited as Ext. A.
7. Ms. Choudhury, the learned counsel for the appellant/ Insurance Company has strenuously submitted that Section 167 creates a clear bar for an incumbent in filing claim petitions both in the MACT as well as under the WC Act. Ms. Choudhury, learned counsel would submit that an option is given to an incumbent to elect a forum and once such forum is elected, he is barred from choosing the other forum at a later stage. It is further submitted that right to elect is a forum of legal estoppel in which a party is precluded from raising claim petitions arising out of the same accident in two fora.
8. For ready reference, Section 167 of the Motor Vehicles Act, 1988 is quoted here in below:
Page No.# 4/8 "167. Option regarding claims for compensation in certain cases.--Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, 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."
It may be mentioned that the similar provision in the earlier Act namely Motor Vehicle Act, 1938 was Section 110-AA.
9. The learned counsel for the appellant in support of her submission relies upon the following decisions:
(i). (2006) 2 SSC 641- National Insurance Company Limited v. Mastan and Anr.
(ii). (2013) 9 SSC 406 -Oriental Insurance Company Ltd. v. Dyamavva and Ors.
10. In the case of Mastan, the Hon'ble Apex Court had the occasion to deal with the provision of Section 167 of the Act. The relevant discussions made by the Hon'ble Apex Court are found in Paragraphs- 21, 22, 23, 24 and also in the supplementing part by Hob'le Justice P.K. Balasubramanyan in paragraph 35 which are quoted herein below:
"20. An insurer, subject to the terms and conditions of contract of insurance, is bound to indemnify the insured under the 1923 Act as also the 1988 Act. But as noticed hereinbefore, keeping in view the nature and purport of the two statutes, the defences which can be raised by the insurer being different, the scope and ambit of appeal are also different.
21. Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-`-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts, cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.
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-obstante 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 Page No.# 5/8 case.
24. In Nagubai Ammal and Others v. B. Shama Rao and Others 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."
" 35. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he had done is to pursue his claim under the Workmen's Compensations Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen's Compensation Act by Section 167 of the Motor Vehicles Act. The respondent Claimant is not entitled to do so. The High Court was in error in holding that he is entitled to do so."
11. In the case of Dyamavva, in paragraph-19 of the judgment, the Hon'ble Apex Court held as follows:
"19. In the aforesaid view of the matter, we hereby affirm the determination rendered by the Motor Accidents Claims Tribunal, Bagalkot, and the High Court in awarding compensation quantified at Rs.11,44,440/- to the claimant. The Motor Accidents Claims Tribunal, Bagalkot, as also, the High Court, ordered a deduction therefrom of a sum of Rs.3,26,140/- (paid to the claimants under the Workmen's Compensation Act, 1923). The said deduction gives full effect to Section 167 of the Motor Vehicles Act, 1988, inasmuch as, it awards compensation to the respondents-claimants under the enactment based on the option first exercised, and also ensures that, the respondents-claimants are not allowed dual benefit under the two enactments."
12. The learned counsel for appellant/Insurance Company accordingly submits that the award in question is hit by the bar created under Section 167 of the Act and is accordingly not sustainable in law. It is pertinent to mention that the instant challenge is confined to the issue of applicability of Section 167 only and no other grounds are urged.
13. Per Contra, the learned counsel for the claimant/Respondent submits that the bar of Section 167 of the Act would not come into operation, inasmuch as, the claim under the WC Act was against the employer of the deceased whereas, in respect of the claim made under the M.V. Act, the same is against the owner of the vehicle and the insurance company which is bound by the contract of indemnification. The learned counsel has clarified that in the instant case the employer of the deceased was not the owner of the vehicle and in fact the employer had no connection at all with the vehicle in question and it is only a matter of coincidence that the death during the service had occurred out of a motor vehicle accident. The learned counsel also argues that the provision of Section 167 has been incorporated in the statute book only to avoid a case of double jeopardy to the owner/ insurer of a vehicle involved in motor accident which however, is not the case in hand. Referring to the judgment of the learned Tribunal, more specifically the discussion made in paragraph 10 thereto, which is on the objection regarding Section 167, the learned counsel has submitted that the award is fully justified which has been passed after due consideration of the provisions of the aforesaid Section 167.
14. In support of the submission made on behalf of respondent/claimant, the learned counsel has relied upon Page No.# 6/8 the decision of the Madras High Court, Madurai Bench dated 24.09.2018 passed in CMA (MD) No. 443/2012. In the said case, in para-11 & 12, the following observations have been made:
"11. As rightly held in Nasimbanu's case relied on by the claimants, where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, he is not debarred from claiming compensation under the Motor Vehicles Act against the tort-feasor. In Bidami's case relied on by the claimants also, it has been held that since the benefits accruing and flowing from the two different enactments flow in two different streams and such claim is made against different parties; employer in one case and tort-feasor other than employer in another case, one compensation does not militate or offend against other compensation and that the claimants are entitled to both compensation and one cannot be set off or deducted from the other.
12. In the present case on hand, the claimants have rightly filed MCOP case against the owner of Lorry who is not the employer and insurer of the Lorry which hit the deceased and obtained compensation through Lok Adalat and also filed WC case against the employer of the deceased and obtained compensation which in my considered opinion does not amount to double compensation or double jeopardy to the employer in the light of the above judgments. "
The learned counsel accordingly submits that the award in question is not liable for any interference.
15. Ms. Choudhury, learned counsel for the appellant in her rejoinder submits that the judgment of the Madras High Court, at best would have persuasive value and would not be a binding precedent. Criticizing the decision by the learned Tribunal on the objection raised on the applicability of Section 167 of the Act in paragraph 11 of the Judgment, the learned counsel would submit that the discussion is not supported by legal basis and accordingly the award suffers from legal infirmity.
16. The rival contentions of the learned counsel for the parties are duly considered and the materials before this Court are duly examined.
17. As noted above, Section 167 of the Act gives an option to a party to elect the forum in which a claim arising out of use of a motor vehicle would be made. This statutory principle is to ensure that there should not be 2 claims against the same parties i.e. owner of the vehicle or its insurer. The underlying object of the said Section, as held in a number of judicial pronouncement is to avoid double jeopardy to the owner of the vehicle or its insurer. Thus the test, therefore would hinge upon the fact against whom the claim is made. If in a given case, like the instant one, the claim in the WC Court has got nothing to do with the owner of the vehicle or the Insurance Company, in the opinion of this Court, the absolute bar of Section 167 would not come in. This Court had put a specific query to the learned counsel for the Insurance Company whether they are saddled with any liability in connection with the award and the WC Court which was Exhibited as Ext. A and categorical reply was that the said claim was not against the owner or insurer of the vehicle who were not even parties in the proceeding before the WC Commissioner and therefore, the question of saddling the owner or insurer with any liability did not arise.
18. In view of the same the inevitable conclusion reached by this Court is that the restriction of Section 167 Page No.# 7/8 would not come in operation in the instant case.
19. The Hon'ble Supreme Court in a recent Judgment reported in (2016) 9 SSC 627 (Reliance General Insurance Company Lt. v. Sashi Sharma and Ors.) after discussing the law on the subject has held that the duty of the Tribunal is to ensure that a "just" compensation is paid to the claimant in a claim arising out of a motor vehicle accident. Referring to the case of Helen C Rebello reported in (1999) 1 SSC 90, the Hon'ble Supreme Court has made the following observations:
" 14. In para 28, the Court in Helen C. Rebello case observed thus: (SSC pp. 107-08) "28. ........ This show that the word "just" was deliberately brought it Section 110 B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that the principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decisions, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of the 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based their interpretation on the principles of these two Acts, viz., the English 1846 Act and the Indian 1855 Act to hold that deductions were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these courts by giving a restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, un- equitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having the force of law." (emphasis supplied)
15. The principle expounded in this decision in Helen C. Rebello case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the "pecuniary advantage" from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken, is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been restated in the subsequent decision of the two Judges' Bench in Patricia Jean Mahajan's case, to reject the argument of the Insurance Company to deduct the amount receivable by the dependents of the deceased by way of "social security compensation" and "Life Insurance Policy".
20. In the same case of Reliance (Supra) while discussing the provision of Section 167 and correlating the same to a "just" Award, the compensation under the Head of Pay and Allowance to claimant in the said case as received from the employer under the Rules of 2006 were held to be liable for deduction but Section 167 has not been held to be blanket bar for instituting a claim under the motor vehicle Act if a compensation under the different Act arising out of the death in Motor Vehicle case was applied for.
21. Coming to the facts of the case of the present case, the award of the WC Commissioner which was Page No.# 8/8 exhibited as Ext. A concerns the consolidated amount of Rs. 4,50,000/- from where it is not discernible as to how much of the said amount would be under the Head of Pay of Allowance. In fact reading of the award makes it clear that the dispute was settled on the claimant wherein, the employer namely M/s. Shiv-Vani Oil & Gas Exploration Service Ltd. had agreed to pay a sum of Rs. 5,50,000/- as a lump-sum cash compensation. As stated above the aforesaid employer M/s. Shiv-Vani Oil & Gas Exploration Service Ltd is not connected with the Vehicle involved in the accident.
22. In view of the aforesaid decision, this Court is unable to accept the contention of the appellant insurance company regarding the applicability of the bar under Section 167 of the Act in the instant case and accordingly, the appeal fails.
23. Consequently, the interim order passed in connected Misc. Case 1065/2013 stands vacated. The appellant Insurance Company is directed to deposit the awarded amount in question before the Registry of this Court within 45 (forty-five) days from the date of this judgment and the Registry would release the same to the claimant on proper identification.
24. The Appeal is accordingly dismissed.
JUDGE Comparing Assistant