Bombay High Court
Maroti Shrawan Manghate vs Rita Y. Sapra & Another on 1 August, 2017
Author: S.B. Shukre
Bench: S.B. Shukre
J-fa593.05.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.593 OF 2005
Maroti Shrawan Manghate,
Aged about 24 years,
Occupation : Business,
R/o. Kanhan, Tahsil Kamptee,
District Nagpur. : APPELLANT
...VERSUS...
1. Smt. Rita Y. Sapra,
Aged Major, R/o. Kadbi Chowk,
Nagpur.
2. National Insurance Company Limited,
Main Road, Sadar, Nagpur. : RESPONDENTS
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Shri P.G. Pathak, Advocate for the Appellant.
Shri B.B. Raipurkar, Advocate for the Respondent No.2.
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CORAM : S.B. SHUKRE, J.
st
DATE : 1
AUGUST, 2017.
ORAL JUDGMENT :
1. This is an appeal preferred under Section 30(1)(a) of the Workmen's Compensation Act, 1923 (in short, "WC Act") challenging the legality and correctness of the award passed by the learned Commissioner in W.C.A. No.26/2003 on 21 st July, 2005 thereby rejecting the claim for compensation for sustaining of permanent disability by the ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 2/12 appellant.
2. The case of the appellant was that he was a driver appointed by the respondent No.1 to drive the truck bearing registration No.MH-31- 4091 owned by her in the year 1991. This truck was then insured with the respondent No.2. The appellant was engaged to drive this vehicle for transporting the goods between different places. On 22.3.1991, the appellant was discharging his duty as a driver on this truck and thus he was in the course of employment of the respondent No.1. While he was driving the truck from Tumsar to Nagpur on National Highway No.7, he came to a spot near Petrol Pump at Kandri, when one truck coming from opposite direction in high speed, collided head on with the truck driven by appellant. The impact of the accident was severe and it caused grievous injuries to the head and the forelimbs of the appellant. The appellant's right paw got severed because of the impact of the accident and it fell down at the spot of accident. Some good Samaritans removed the appellant to the Indira Gandhi Medical College & Hospital, Nagpur for treatment. He remained hospitalized there from 22.3.1991 to 4.4.1991. The appellant came out of the injuries but with loss of his right paw permanently. At that time, the appellant was 22 years of age and earned salary of Rs.900/- per month and also Rs.50/- as a daily allowance and thus his total monthly income was of Rs.1,350/-. The disability that was suffered by the appellant was of permanent nature which was about 50%. As the appellant was in urgent ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 3/12 of financial solace, the appellant invoked jurisdiction of Motor Accident Claims Tribunal under Section 140 of the Motor Vehicles Act, 1988 (in short, "MV Act") and got Rs.12,000/- as compensation on no fault principle. So, a claim for receiving further compensation from the respondent of Rs.1,49,424.75 was filed by the appellant.
3. A common written statement objecting to the claim was filed by the respondent Nos.1 and 2. The main resistance was on the ground that after having opted for remedy under the provisions of MV Act, the appellant was barred from approaching the forum available under the WC Act for claiming compensation in terms of provisions of the WC Act. The basis for this objection was sought to be found in Section 167 of the MV Act.
4. On merits of the case, the learned Commissioner found that sustaining of the permanent disability in the accident was not proved by the appellant and in any case the compensation claim filed under Sections 8 and 10 read with 22 of the WC Act was not maintainable as the appellant had resorted to another option to claim compensation under Section 140 of the MV Act, in view of the provisions of Section 167 of the MV Act. Thus, by the impugned judgment and order, the learned Commissioner dismissed the claim application.
5. This appeal was admitted by this Court on 6.6.2006 on the question of law and I would be making an endeavour to answer the question of law in this judgment. The question of law on which the ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 4/12 appeal has been admitted is as follows :
"Whether the claimant/appellant who got compensation under no fault liability as envisaged in Chapter X of the M.V. Act, 1988 would be visited with the consequences of forfeiture of the right to claim compensation under the Workmen's Compensation act, 1923 ?
6. Shri P.G. Pathak, learned counsel for the appellant submits that the claim for compensation based upon no fault liability filed under Chapter X is exempted from the embargo of Section 167 of the MV Act. He submits that Sections 141, 143 as well as Section 144 of the MV Act make it clear that the claim for compensation based upon principle of no fault liability is a kind of claim which is available not optionally but additionally to the claimant along with his any other claim available under Chapter XI and Chapter XII or under the provisions of WC Act. He points out that Section 144 of the MV Act gives an overriding effect to the provisions of Chapter X of MV Act of which a claim raised under Section 140 MV Act is an essential part.
7. Shri Raipure, learned counsel for the respondent No.2 submits that even though the liability to pay compensation on no fault principle has been provided for under a separate Chapter which is Chapter X of the MV Act, the liability so created cannot be viewed independently of the claim application filed under Section 166, Chapter XII of the MV Act. He submits that it has been the practice of Courts to award compensation under Section 166 of the MV Act in an inclusive ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 5/12 manner by including the liability even under Section 140 of the MV Act. He submits that this is done always by the Tribunals while awarding compensation under Section 166 of the MV Act because it is considered by the Tribunals that the compensation awarded under Chapter X is an interim arrangement made during the pendency of the main proceedings under Section 166 of the MV Act and that is the reason why the Tribunals, while passing the final orders under Section 166 of the MV Act, categorically direct that the compensation awarded is inclusive of the compensation allowed on account of no fault liability under Section 140 of the MV Act. For this submission, he places his reliance on the cases of National Insurance Co. Ltd. vs. Mastan and another, reported in 2006(1) T.A.C. 321 S.C., Oriental Insurance Co. Ltd. vs. Dyamavva and others, reported in 2013(2) T.A.C. 1 (S.C.) and Elsamma John and others vs. Brintex Sales Corporation, reported in 2016(2) T.A.C. 396 (Del.).
8. The liability to pay compensation has been created under Chapter X without any reference to fault principle. In fact, it is a liability to pay without any fault in such cases as are enumerated in Section 140, which is a part of Chapter X. This liability, has been interpreted in number of cases by the Hon'ble Apex Court to be different and distinct from the liability based upon fault principle in view of the provisions contained in Chapter XI and XII of the MV Act. Therefore, any order passed under Section 140 of the MV Act has been understood to be an ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 6/12 award passed by the Tribunal, which is appealable under Section 173 of the MV Act. If such an order were not treated to be an award in the eye of law, no appeal under Section 173 against such an award could have been filed by the aggrieved party. But, now the law is settled and needs no further elaboration on this aspect.
9. Sections 141, 143 and also 144 of the MV Act, as rightly submitted by the learned counsel for the appellant, throw a useful light in according a well entrenched independent status to the liability under Section 140 MV Act, in the eye of law. Section 141 makes it clear that right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in Section 163-A, based upon the principle of fault to claim compensation in respect thereof under any other provisions of MV Act or of any other law for the time being in force. Section 143 specifically prescribes that provisions of this Chapter (Chapter X) shall also apply in relation to any claim for compensation resulting from an accident of the nature referred to in sub- section (1) of Section 140 raised under the provisions of the WC Act. Section 144 gives an overriding effect to the provisions of Chapter X by laying down that notwithstanding anything contained in any other provision of MV Act or any other law for the time being in force, these provisions shall have effect.
10. It is clear from these provisions of law that the liability to pay ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 7/12 compensation created under Section 140, Chapter X, of the MV Act is a liability which stands in addition to the liability to pay compensation under Section 166 of the MV Act or under the provisions of WC Act and that the provisions of Chapter X have overriding effect, so far as the provisions relating to liability to pay compensation under the other provisions of the MV Act or any other Act are concerned. They also clarify, by removing doubt, if any, that provisions of Chapter X shall have specific application in relation to any claim for compensation lodged under the WC Act. As if this is not enough, Section 167 of the MV Act also makes the position clear. It lays down that when a person is entitled to claim compensation under the provisions of the MV Act and also under the provisions of the WC Act, such person can claim compensation under either the provisions of the MV Act or the WC Act but not under both. But, the prohibition so created has a rider to it. It says that this is without prejudice to the provisions of Chapter X and when it says so, the inference is loud and clear. It only means that the option so given to proceed only under the provisions of one of the Acts and not both the Acts has no application to the provisions of Chapter X of the MV Act. In other words, the liability to pay compensation under Section 140 of the MV Act which creates a corresponding right to claim the same in the affected person, stands as it is and it has to be discharged in addition to liability to pay compensation imposed under the other provisions of the MV Act based upon the fault principle or the WC Act.
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11. In the case of Mastan and another (supra) relied upon by the learned counsel for the respondent, the Hon'ble Apex Court has held that in a proceeding under the WC Act, the applicability of the provisions of the MV Act is confined to a matter coming within the purview of Chapter X only and it cannot be stretched any further. In other words, the Hon'ble Supreme Court has made it clear that in a proceeding under WC Act, only the provision of Chapter X of MV Act are applicable and the other provisions of the MV Act are not. This should be enough for us to conclude that the right to claim compensation on no fault principle is an independent right, it can be asserted not only in a proceeding filed under Section 166 of the MV Act but also under the provisions of the WC Act and that it is taken out of the prohibition contained under Section 167 of the MV Act which lays down that a claim for compensation can be made either under the MV Act or the provisions of the WC Act, if both such remedies are available, which option, however, does not prejudicially affect the right to claim compensation under Section 140 of the MV Act. This is also the ratio of the case of Dyamavva and others (supra) relied upon by the learned counsel for the respondent No.2. Learned Single Judge of the Delhi High Court has followed the ratio of these two cases in EIsamma John and others (supra).
12. The result of the above discussion would constitute the precise answer to the substantial question of law on which this appeal has been admitted. The answer would be in the nature that a claimant ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 9/12 or the appellant who has received compensation on no fault principle under Chapter X of the MV Act would not forfeit his right to claim compensation under the provisions of the WC Act. The question is answered accordingly.
13. Now, it would have to be seen whether on merits of the case, the appellant has succeeded in proving his sustaining of permanent disability in an accident which occurred during the course of his employment and his entitlement to receive compensation as per the provisions of the WC Act or not. In the opinion of the learned counsel for the respondent No.2, the appellant has miserably failed in doing so and in support he has invited my attention to the evidence available on record. This is seriously disputed by the learned counsel for the appellant, who has also taken me through the evidence available on record.
14. The appellant is the only witness who has entered the witness box. He tendered his oral evidence as PW 1. No witness was examined by the respondent No.2. The evidence of PW 1, Maroti, shows that at the time of accident he was under the employment of the respondent No.1 and that he was driving the truck during the course of his employment. This evidence has not been controverted by the respondent in any manner, if one takes a close look at the cross examination of this witness taken on behalf of the respondent. On the contrary, there is an admission appearing in the cross-examination ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 10/12 regarding the appellant being in the employment of the respondent No.1. There is also admission about the income of the appellant. The appellant claimed himself to be of 22 years at the time of accident. He also stated that in this accident, which was in the nature of head on collusion between two vehicles one driven by the appellant himself, bearing registration No.MH-31-4091, owned by respondent No.1 and insured with respondent No.2, and the other vehicle of which registration number the appellant was not aware of, the appellant lost his forearm from the wrist. The F.I.R. vide Exh.-17 as well as spot panchanama vide Exh.- 90 clearly show that this portion of the right forearm of the appellant termed as paw, had got severed from the wrist and was lying at the spot of accident. There is no cross-examination of this witness taken by the respondents on this point.
15. Such evidence, therefore, would be sufficient for me to reasonably conclude that the accident occurred on 22.3.1991 which was the result of head on collusion between two vehicles, one driven by the appellant and insured with respondent No.2 and the other about which no details are coming forth. In this accident, the appellant sustained grievous injuries which resulted in his losing a portion of forearm from wrist thereby sustaining of permanent disability by him. This evidence would also lead me to find that the accident had occurred at a time when the appellant was discharging his duty in the course of his employment with respondent No.1. Therefore, respondent Nos.1 and 2 would be ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 11/12 jointly and severally liable to pay compensation to the appellant, which now would be computed.
16. At the time of accident, the appellant was 22 years of age and his income, on admitted facts, was of Rs.1,350/- per month inclusive of daily allowance at the rate of Rs.50/-. With the able and fair assistance of Shri Raipure, learned counsel for the respondent No.2, I could calculate the compensation amount in this case which is as follows :
(i) Monthly income : Rs.1,350/-;
(ii) Sixty percent of monthly income
as per Section 4(1)(b). : Rs.810/-;
(iii) At the time of accident,
age of appellant. : 22 year;
(iv)Applicable factor,
for the age, 22 year. : 221.37
(v) Multiply (ii) by (iv) : Rs.1,79,309.70
17. Thus calculated, the total amount of compensation payable to the appellant would be Rs.1,79,309.70/-. This amount as per the dictate of provision of Section 4-A(3)(a) shall carry interest at the rate of 12% p.a. from the date of accident till realization of this amount and same shall paid by the respondent Nos.1 and 2 jointly and severally to the appellant within three months from the date of payment of Court fees, on enhanced compensation, if any, failing which appellant shall be entitled ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 ::: J-fa593.05.odt 12/12 to recover the same through coercive method. Court fee on enhanced compensation, if payable, be paid within one month from the date of order.
18. Accordingly, the impugned award is quashed and set aside.
19. The appeal is allowed in above terms.
20. The parties to bear their own costs.
JUDGE wadode ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 01:37:18 :::