Allahabad High Court
Arun Kumar Rastogi And Anr. vs Chandra Kumari And Anr. on 28 July, 1986
Equivalent citations: I(1987)ACC46, [1988]63COMPCAS266(ALL)
JUDGMENT B.D. Agarwal, J.
1. These connected appeals under Section 110D, Motor Vehicles Act, are directed against an award of the Motor Accidents Claims Tribunal (Additional District Judge, Allahabad) dated December 20, 1977.
2. The claim petition was filed by Smt. Chandra Kumari alleging that her husband, Jaskaran Singh, deceased, was aged about 28 years. He was employed as a driver in truck No. UTE 1447 belonging to Arun Kumar Rastogi and his brother, the appellants. The salary paid was Rs. 400 per month besides Rs. 10 per day as diet allowance. On October 1, 1976, at about 11 p.m., Jaskaran Singh was driving the truck loaded with bricks from the brick kiln of Iradatganj, District Banda, when it met with an accident having dashed against a tree. Jaskaran Singh died instantaneously on account of the injuries sustained in the accident. The owners of the truck resisted the claim pleading that the accident took place due to rash and negligent driving by the deceased and that they are not liable to pay any amount by way of compensation in these proceedings. Other pleas were also taken including that the claimant is not the wife of Jaskaran Singh and that the petition is bad due to the mother of the deceased being not impleaded. The quantum of compensation claimed was also assailed as excessive and arbitrary. The insurer put in a separate written statement refuting the claim and contending that the deceased was not driving in the course of employment. The accident took place due to the negligence on his part and there was contravention also of the terms of the insurance policy.
3. The Tribunal came to the finding that the claimant is the wife of Jaskaran Singh, deceased. The mother of the deceased may have been a proper party to the proceedings, but her non-impleadment is not fatal. The accident took place while Jaskaran Singh was driving the truck in the course of his employment with the owners thereof. He was drawing a salary of Rs. 300 per month in addition to diet allowance at the rate of Rs. 5 per day. There was no negligence or rashness on his part. At the time of the death he was about 29 years of age and the compensation awarded was a sum of Rs. 36,000 besides interest at the rate of 6% per annum.
4. Aggrieved, Arun Kumar Rastogi and his brother have preferred First Appeal From Order No. 259 of 1978. The other appeal has been filed by the insurance company. Both were heard together.
5. Learned counsel for the appellants urged in the first place that the claim petition was not maintainable before the Tribunal under Section 110A, Motor Vehicles Act. The submission made is that the accident in question was caused when Jaskaran Singh, the deceased, was himself driving the truck and neither of the owners of the truck was in the picture. There is no negligence or anything of that sort attributed to the owners in this respect. It has nowhere been alleged or shown that any of the owners was a passenger on the truck at the relevant time. The foundation for the liability under Section 110A is laid in tort. This flows from a wrongful act, neglect or default on the part of the person alleged to be liable. A reference to Section 1A of the Fatal Accidents Act suggests as well that there has to be shown wrongful act, neglect or default of the person who is made liable to compensate. Section 92A has been introduced in the Motor Vehicles Act by way of exception to liability to pay compensation in certain cases on the principle of no fault. Sub-section (3) of Section 92A provides that in claims arising on the principle of no fault, the claimant is not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle concerned or of any other person. This provision introduced as an exception is also suggestive, in my opinion, that to other cases based or laid under Section 110A, it is a necessary ingredient for the claimant to plead and establish that there was a wrongful act, neglect or default of the owner of the vehicle or of any other person. Section 92A is itself of no avail to the claimant respondent for the obvious reason that Chapter VIIA comprising this provision was introduced with effect from October 1, 1982, by Central Act 47 of 1982. The view taken by this court is. that the provision is not retrospective in effect, vide Ram Mani Gupta v. Mohd. Ibrahim [1985] ACJ 476 (All). In the absence, therefore, of the requisite ingredients of Section 110A being made out by the claimant-respondent, the claim petition could not lie thereunder. The Tribunal has not taken into consideration the relevant provisions in this behalf, and the question being one of law, counsel for the appellants were permitted by me to agitate the same.
6. In this connection it is relevant also to refer to certain relevant provisions contained in the Workmen's Compensation Act. Section 2(1)(n) of this Act defines "workman " as meaning, inter alia, a person employed for the purpose of the employers' trade or business on monthly wages not exceeding Rs. 1,000 in a capacity specified in Schedule II. In Schedule II, there is mention also of a person employed as a driver, as appearing from Clause (xxv). The definition given to the expression "workman" includes a reference to his dependants and the widow is a dependant too, vide Section 2(1)(d)(i). Section 3(1) lays down that personal injury caused to a workman by accident arising out of and in the course of his employment has to be compensated by the employer. The employer is made liable, in other words, for personal injury which may have resulted in death arising out of and in the course of employment of the deceased workman. Section 4(1)(a) read with Schedule IV may be said to specify the amount admissible in such a case. Section 10(1) provides the limitation for the claim under this Act if preferred which may be read alongside with the fifth proviso that lays down that upon sufficient cause being made out, the period is open to be extended by the Commissioner appointed under the Act. The claimant-respondent had thus, it seems, to pursue her remedy under the Workmen's Compensation Act on the facts and circumstances of the case, instead of taking recourse to Section 110A of the Motor Vehicles Act.
7. In so far as the liability of the insurer is concerned, a reference is relevant to proviso (i)(a) to Sub-section (1) of Section 95 of the Motor Vehicles Act. Thereunder, a policy is not required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy, other than a liability arising under the Workmen's Compensation Act, in respect of the death of any such employee engaged in driving the vehicle. For a liability arising under the Workmen's Compensation Act, therefore, there has to be coverage under the insurance policy in relation to an employee engaged in driving the vehicle. This would suggest that against the insurer also the forum opted by the respondents is not the correct one.
8. In the course of arguments, my attention has been drawn also to the provisions made in Section 110AA, Motor Vehicles Act, which reads as under :
"Notwithstanding anything contained in the Workmen's Compensation Act, 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 VII-A, claim such compensation under either of those Acts but not under both,"
9. This also is of no assistance to the claimant-respondent, the reason being that, as explained above, this is not a case giving rise to a claim for compensation both under the Motor Vehicles Act and the Workmen's Compensation Act ; the case is one, on the other hand, where the claim arising, if any, may be under the Workmen's Compensation Act, but not under the Motor Vehicles Act. The claimant-respondent has not in the present proceeded to allege or establish, as stated above, any wrongful act, neglect or default on the part of the owners of the truck. The observations contained in a recent decision of the Bombay High Court in National Insurance Co. Ltd. v. Gonti Eliza David [1986] 59 Comp Cas 745, at page 749, elucidate the difference between taking recourse to the provisions under either of the two Acts in this connection :
" Undoubtedly, an aggrieved employee is entitled under Section 110AA of the Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two acts would be different--a tribunal would apply the principles of strict liability circumscribed by the Workmen's Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmen's Compensation Act is quantified in the Schedule itself. But the quantum of damages under the common law of tort is subject to determination by the Tribunal on the basis of well-settled principles. The Workmen's Compensation Act offers no leeway in the matter of quantification of damages ; the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a tribunal which is generally presided over by a senior judicial officer may throw open a number of issues the burden of proving which would lie on the claimant. In this option of forum shopping, if the workman has chosen to undertake the responsibility of discharging the onerous burden imposed upon him by the law of tort, it follows that he should get the benefit of the expression 'including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 ' occurring in Clause (a) of Sub-section (2) of the Motor Vehicles Act which implies that the insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act."
10. The claimant respondent having not chosen in the present case to undertake the responsibility to discharge the heavy burden imposed upon her by the law of tort, the provisions of the Motor Vehicles Act are not of avail against the insurer either.
11. For the above reasons, the appeals succeed and are allowed. The award dated December 20, 1977, is set aside and the claim petition is dismissed. Costs shall be borne by the parties.