Rajasthan High Court - Jaipur
Tara Chand And Ors. vs Chokali And Ors. on 9 May, 1988
Equivalent citations: II(1990)ACC110
JUDGMENT Sobhag Mal Jain, J.
1. These two appeals and the cross-objections have been filed against the award dated 14th September, 1982 of the Motor Accidents Claims Tribunal, Udaipur, allowing a compensation of Rs. 9720/- to the claimants in each of the claim petitions.
2. The accident took place on 15th January, 1974, at Pratapgarh. In the accident the truck No. RJH 850 belonging to Tara Chand and Jayanti Lal was involved. It was being driven by Bardhi Chand driver. Two persons, namely, Onkar and Babu were killed in the accident. They had been employed as labourers on the truck. The truck was used for loading and unloading of stones. To bring stones the truck was taken on kacha road, where it overturned, resulting in the death of Onkar and Babu. Two claim petitions were filed before the Motor Accidents Claims Tribunal, Udaipur, claim Petition No. 14 of 1974, renumbered as 141 of 1978, related to the claim for compensation for the death of Onkar. It was filed by Kalu, father of the deceased, Chokali mother, Sita Bai widow, Puniya brother and Kali sister. The other claim petition, being No. 15 of 1974, renumbered as 142 of 1978, was for compensation on account of the death of Babu. It was filed by Galla, father of the deceased, Panudi mother, Sita Ram, Gopal, Ram Chand brothers and Kali sister. Shortly stated, the facts, as alleged in the claim petition, were that the truck in which the deceased had been employed as labourers was driven by Bardhi Chand. The accident took place on account of the rash and negligent driving of the truck by the driver. The New India Assurance Co. Ltd. was also impleaded as a party, as it was alleged that the truck was insured with that company.
3. The claim was contested by the owners and the company. It was pleaded by the owners that the truck on the date of the accident was taken on hire by Galla Section order Rakiya for carrying stones. The labourers, Onkar and Babu, and also the driver, Bardhi Chand, were employed by him. The case of the insurance company was that the truck was insured on 15th January, 1974 itself but it was insured after the accident, by concealing material facts and, therefore, the company was not liable to pay compensation under the said policy.
4. The Tribunal, by the award dated 1st April, 1982, has allowed the claim petitions as aforesaid. The Tribunal has found that the accident was caused on account of the rash and negligent driving of the truck by its driver Bardhi Chand. It was held that the deceased labourers, Onkar and Babu, as also the driver, Bardhi Chand, were employed on the truck by the owners. Tara Chand and Jayanti Lal, in whose name the truck was registered, were liable to pay compensation for the accident. The Tribunal also found that the insurance of truck was taken after the accident by concealing the fact that the truck was already involved in the accident. The owners had already known about the accident and got the insurance done by concealing this fact. The Tribunal, therefore, absolved the insurance company of its liability to pay compensation. Taking the claim petition filed by Kalu and others in respect of the dead of Onkar, the Tribunal held that the deceased Onkar was getting Rs. 3/ - per day, i.e., he was earning Rs. 90/- in a month and out of this, his contribution towards his family could be Rs. 45/- per month. The Tribunal held that under the Workmen's Compensation Act, 1923, the legal representatives of the deceased workman could be awarded a maximum compensation of Rs. 9,720/- only. Making this as abasis, the Tribunal awarded Rs. 9,720/- as compensation to the legal representatives of deceased Onkar. The Tribunal further held that Kalu Ram had already expired while Puniya and Kamli being the brother and sister respectively of the deceased were not entitled to get compensation. Out of the amount of Rs. 9,720/- the Tribunal awarded a sum of Rs. 3,720/- to Chokali and Rs. 6,000/- to Sita Bai as compensation. In claim petition No. 142 of 1978, relating to the death of Babu, the Tribunal found that Babu also was earning a sum of Rs. 3/- per day. i.e., he was earning Rs. 90/- per month and was contributing a sum of Rs. 45/- per month towards %, his family. Relying oh the maximum amount allowable as compensation under the Workmen's Compensation Act, the Tribunal held that the legal representatives, of Babu, were entitled to receive a sum of Rs. 9,720/- as compensation. Babu was unmarried and therefore, his father Galla and mother Panudi were awarded a sum of Rs. 4,860/- each as compensation for the death of Babu. His brothers and the sister, namely, Sita Ram, Gopal, Ram Chand and Kali were held not entitled to any compensation. The insurance company was absolved of its liability to pay compensation. Tara Chand and Jayanti Lal were held jointly and severally liable to pay the amount of compensation. Interest at the rate of 6 per cent per annum from the date of the award was also awarded to the aforesaid claimants.
5. Aggrieved by the aforesaid award two appeals have been filed by the owners, i.e., Tara Chand and Jayanti Lal. Appeal No.4 of 1983 is in respect of the compensation allowed for the death of Onkar and Appeal No.5 of 1983 is in respect of the compensation for the death of Babu. In both these appeals cross-objections for enhancement of the amount of compensation have been filed by the claimants.
6. I have heard learned Counsel for the parties. Both the appeals and the cross-objections arise out of the same accident and are directed against the same award. They are, therefore, being disposed of together. Mr. M.C. Bhandari, counsel for the owners in both the cases, has submitted that the Tribunal has committed error in absolving the insurance company of its liability to pay compensation. In the cross-objections. Mr. D.S. Sisodiya, counsel for the claimants, has urged that the quantum of compensation awarded by the Tribunal is inadequate and that it needs to be enhanced.
7. The fact that the accident involving the death of Onkar and Babu was the result of rash and negligent driving of the truck is no more in dispute. The question for consideration is as to what should be the just amount of compensation to be paid to the claimants. The Tribunal in arriving at the said amount has taken the maximum provided in the Schedule under the Workmen's Compensation Act as the yardstick and on that basis has determined the amount of compensation. In the instant case the claim petitions were filed not under the Workmen's Compensation Act but under the Motor Vehicles Act. Section 110-AA of the Motor Vehicles Act provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death or bodily injury to any person gives rise to a claim for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, the person entitled to compensation may, without prejudice to the provisions of Chapter VII-A, claim such compensation under either of these Acts but not under both. A perusal of the aforesaid shows that an option is given to the claimants to seek compensation either under the Motor Vehicles Act or under the Workmen's Compensation Act. What is prohibited is that the claimants cannot claim compensation under both the Acts. In the present case the claimants opted for a relief under the Motor Vehicles Act and, therefore, the Tribunal was obliged to determine the amount of compensation which appeared to it to be a just amount to be paid under the provisions of the Motor Vehicles Act. This was not done and the Tribunal, rather, took the maximum provided in the Schedule under the Workmen's Compensation Act, as the amount to be paid under the Motor Vehicles Act. Obviously, the Tribunal was not right. I am supported, in my view by a Division Bench judgment of the Allahabad High Court in Oriental Fire and Genl. Ins Co. Ltd. v. Ram Sunder Dubey 1982 A.C.J 365 (Allahabad):
Mr. A.B. Saran argued that under the provisions of Section 95(2)(a) where the vehicle is a goods vehicle, a limit of Rs. 50,000/- in all including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death or bodily injury to employee (other than the driver) not exceeding six in number being carried in the vehicle, the insurance company is liable to pay the compensation in respect of the death of an employee only under the provisions of the Workmen's Compensation Act, 1923 and not otherwise. The difficulty in accepting this argument is that Section 110-AA of the Motor Vehicles Act provides mat notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death or bodily injury to any person gives rise to a claim for compensation under this Act (Motor Vehicles Act) and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both. The effect of Section 110-AA of the Motor Vehicles Act is that it gives an option to the claimants either to seek the compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. What is prohibited is that the claimants cannot claim the compensation under both the Acts.
8. There is nothing in the Motor Vehicles Act to show that while awarding compensation to an employee under the Motor Vehicles Act, the Tribunal is bound to apply the Schedules framed under the Workmen's Compensation Act for determination of the compensation.
9. On the question, what should be the just compensation in the facts and circumstances of the present case are that the dependency of the family on the earnings of the deceased in each of the claim cases has been held by the Tribunal to be Rs. 45/- per month, i.e., Rs. 540/- annually. On the date of the accident the age of Onkar was 22 years and that of Babu 19 years. In my opinion 30 would be a just and reasonable multiplier to be applied in each case. On this basis the amount of compensation payable to the claimants would come to Rs. 16,000/-. As regards interest, the latest trend of judicial opinions is to allow interest at the rate of 12 per cent per annum from the date of filing the claim petitions. In the present case the claim petitions were filed on the 11th April, 1974. Accordingly, the claimants would be entitled to interest at the rate of 12 per cent per annum from 11th April, 1974.
10. Now I proceed to consider the question relating to the liability of the insurance company to pay the amount of compensation. The Tribunal has absolved the company of its liability on the ground that the policy was obtained by non-disclosure of material fact. Assailing this conclusion, the learned Counsel for the owners in the two appeals, Mr. M.C. Bhandari, has contended that the insurance company had failed to establish that the policy-was obtained by concealing material facts and the Tribunal was not justified in exonerating the company of its liability to pay compensation. The crucial question which requires consideration is as to whether the insurance policy was obtained after the accident had happened and the owners knew about it and had procured the policy by concealing this fact from the company. The time of the accident in the First Information Report No.9/74 (Exh. 4) lodged at the Police Station, Pratapgarh, is mentioned as 5.00 P.M. The distance between the place of occurrence and the police station was 1-1/2 miles. The report was lodged by one Roop Singh who was not connected in any way with the owners. Galla son of Rakiya, PW 3, has stated in the court that the occurrence took place at 5.00 P.M. No cross-examination of the witness was directed to assail this fact. No evidence in rebuttal was produced to show that the accident took place not at 5.00 P.M. but much earlier. The evidence thus establishes the fact that the accident took place at 5.00 P.M. This takes me to the question as to when the policy was obtained by the insured from the company. A certified copy of the cover note No. 325955 issued in lieu of policy Ex. A-2 was issued by the company on 15th January, 1974. Therefore, it would be operative right from the previous midnight and the liability of the company would extend to any accident which occurred any time on 15th January, 1974, irrespective of the fact when actually it was issued. The cover note mentions the effective date of commencement of insurance as 15th January, 1974 and the date of expiry as January 14, 1975. In Exh. A-2, the time when the cover note was issued is not mentioned. Chaman Kumar, Insurance Inspector, examined as a witness on behalf of the company has no doubt stated that the cover note was issued by him at 5.00 P.M., but his mere deposition in court without anything on record to support would not be sufficient to fix the time of the insurance of the cover note as 5.00 P.M. Even otherwise, there is no material on record to show that before the insurance was taken the owners had come to know about the accident. There is absolutely no evidence on this point. To avoid its liability under the policy, the company has to show that it was obtained by concealing material facts. This the insurance company has failed to prove. The result is that the company cannot be allowed to avoid its liability to pay compensation.
11. For the reasons mentidhed above the appeals and the cross-objections are allowed in part; the amount of compensation awarded in each of the two claim petitions is enhanced from Rs. 9,720/- to Rs. 16,200/-. It shall be apportioned amongst the claimants as under:
Claim Petition No. 14/74 renumbered as 141/78; Sita Bai Rs. 11,000/- and Chokali sum of Rs. 5,200/-.
Claim Petition No. 15/74 renumbered as 142/78; Galla Rs. 8,100/- and Panudi Rs. 8,100/-.
12. The aforesaid amounts shall carry interest at the rate of 12 percent per annum from the date the claim petition was filed before the Tribunal. The New India Assurance Co. Ltd. shall also be liable to pay the amount of compensation and interest to the claimants along with the owners jointly and severally. The award given by the claim Tribunal shall stand modified accordingly. The rest of the directions given in the award shall stand.
13. The parties shall bear their own costs of the appeals and the cross-objections in this court.