Kerala High Court
National Insurance Co. Ltd. vs Veena on 14 January, 2004
Equivalent citations: II(2004)ACC362, 2004ACJ1492, 2004(1)KLT869
Author: J.B. Koshy
Bench: J.B. Koshy, K. Thankappan
JUDGMENT J.B. Koshy, J.
1. Insurance company is the appellant herein. It challenges the order of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV) No. 226 of 1994 insofaras it covered compensation amount under the Workmen's Compensation Act in a petition under Section 166 of the Motor Vehicles Act. Respondents 1 to 4 are the legal representatives of a driver who lost his life in a motor vehicle accident. While the deceased was driving the vehicle, bearing No. KL-14/4399, owned by the fifth respondent and insured by the appellant insurance company, it collided with another stage carriage vehicle, CNO 9172. The Tribunal found that the accident happened due to the negligence of both drivers and 50% liability was cast on both drivers. The Tribunal calculated a total compensation of Rs. 2,80,000/- and directed the owner and insurance company of the vehicle, bearing No. CNO9172 to pay 50% of the above amount. The Tribunal held that the owner of the vehicle KL-14/4399 is not liable to pay compensation under the Motor Vehicles Act. Thereafter, the Tribunal found that apart from the third party liability which is to be satisfied by the insurance company and owner of the vehicle CNO 9172, owner of the vehicle KL-14/4399 and the fourth respondent insurance company are liable to pay workmen's compensation liability amounting to Rs. 85,000/-. The quantum of compensation and finding of negligence are not questioned in this appeal.
2. The main contention raised by the appellant is that the Tribunal cannot award compensation under Section 166 of the Motor Vehicles Act and workmen's compensation liability together in one and the same case. Section 167 of the Motor Vehicles Act reads as follows:
"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 provision's of Chapter X claim such compensation under either of those Acts but also under both."
There is a statutory ban in claiming compensation under both heads. Therefore, a person cannot file claims under the Motor Vehicles Act and then also under the Workmen's Compensation Act or the Tribunal cannot award compensation under both Acts. Section 19 of the Workmen's Compensation Act gives exclusive jurisdiction to decide the matters arising under the above Act and Section 19(2) specifically bars the Civil Court from deciding such issues. Section 13 of the above Act also provides remedies against tort-feasors. But in a claim for compensation under the Motor Vehicles Act by an employee where claim can be granted only under the Workmen's Compensation Act, and Tribunal calculated compensation under the Workmen's Compensation Act, this Court may not interfere merely because forum was incorrect. The learned Counsel for the respondents relied on the decision of the Punjab and Haryana High Court in Smt. Shanti Devi v. General Manager, Haryana Roadways (AIR 1972 Punjab & Haryana 65) where the dictum of the Court is that the Claims Tribunal is a Court and, therefore, Letters Patent Appeal will lie. That is not a matter to be considered in this case. Secondly, it is submitted that in Tribhuwan Singh v. Ramesh Chandra and Ors. (1998 ACJ 579) the Rajasthan High Court held that notwithstanding the benefits under the Employees' State Insurance Act, claim for compensation under Section 166 of the Motor Vehicles Act can be filed. In that case the Court specifically found that there was no employment injury, which shows that no compensation was given for disablement and loss of earning power, though claimant got ESI benefits from ESI Corporation. In such cases, Court held that receipt of ESI benefit will not disentitle him from claiming compensation under the Motor Vehicles Act. Thirdly, it is contended that in Oriental Fire & Genl. Ins. Co. Ltd. v. Duryodhan Swain and Ors. (2000 ACJ 160) it was held that if there is composite negligence, passenger in one of the vehicles can claim compensation equally from both the insurance companies which insured the vehicle. Here the deceased was not a mere passenger but the driver of the vehicle and 50% negligence was apportioned on his part for causing the accident. That finding is not questioned. Dependents filed claim under Section 166. The Tribunal found that there is 50% negligence on his part and only 50% compensation can be directed to be paid in a claim under Section 166 of the Act by the insurer of the other vehicle. At the time, Tribunal held that being a workmen's compensation liability, his employer as well as the appellant insurance company should pay the amount of compensation under the Workmen's Compensation Act, over and above the compensation awarded under Section 166 of the Act.
3. The matter is now directly covered by the Supreme Court decision in Tamil Nadu State Transport Corporation v. Natarajan and Ors. ((2003) 6 SCC 137) wherein in an identical situation at paragraph 9 the Court held as follows:
"9. From the facts of the case and nature of the claim stated above, we find absolutely no jurisdiction in law for the Division Bench of the Madras High Court in its impugned order imposing liability to the extent of 50% on the appellant Corporation. The Division Bench of the High Court completely overlooked that the clamant himself was the driver of the corporation bus and was found negligent to the extent of 50% for causing accident. In view of the above finding of contributory negligence on the part of the claimant as driver of the corporation bus, the Corporation as an employer cannot be held to be vicariously liable for the negligence of the claimant himself. The claim petition did not make the Corporation a party to the claim obviously because the claimant exercised option of approaching the Claims Tribunal under the Motor Vehicles Act against the owner and insurer of the private bus. He did not file any claim under the Workmen's Compensation Act against the employer. Since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held liable under the provisions of the Motor Vehicles Act. It was not a claim based on "no fault liability". It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent Insurance Company as insurer of the private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800 (Rupees two lakhs nine thousand and eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900 (Rupees one lakh four thousand and nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded".
4. In this case also the claimants did not claim under the Workmen's Compensation Act at all. They claimed under Section 166 of the Motor Vehicles Act. The Tribunal has to pass an award under Section 168 of the Act in a claim filed under Section 166. How the compensation is to be calculated in an award is specifically mentioned in Section 168. In support of the contention urged by the insurance Company, the learned counsel for the insurance company also cited the following decisions: New India Assurance Co. Ltd. v. Pennamma Kurien, 1995 (1) KLT 96; New India Assurance Co. Ltd. and Anr. v. V. Raghurami Reddy alias Raghu and Ors., 1994 ACJ 614; United India Insurance Co. Ltd. v. Anipeddi Dhanalakshmi and Ors., 1994 ACJ 98, New India Assurance Co. Ltd. v. Kamar Jahan and Ors., 1994 ACJ 100; United India Insurance Co. Ltd. and Ors. v. Smt. Kadarbi, Major and Ors., AIR 1992 Karnataka 342; National Insurance Co. v. Narayanan Nair 1988 (1) KLT 794; Harivandan Maneklal Modi and Anr. v. Chandrasinh Chhatarasinh Parmar and Ors., AIR 1988 Gujarat 69; Supdt. of Post offices, Rajkot and Ors. v. Pratap Gahelabhai Maru and Ors., 1987 SCJ 674; Smt. Kalawati v. Balwant Singh and Anr., AIR 1985 Allahabad 124; Subasini Panda and Ors. v. State of Orissa and Ors., 1984 ACJ 276; Kanoria Overseas Corporation v. Dama Yanti Vyas and Ors., AIR 1983 Patna 95; Anthony Lobo and Ors. v. C.M. Merchand, 1979 Lab.I.C. 61; Smt. Gayatri Devi v. Tani Ram and Ors., AIR 1976 Himachal Pradesh 75; Oriental Fire & General Insurance Co. Ltd. v. Bidi and Ors., 1972 ACJ 187 and Kunhappa Haji v. Vasudevan, 1990 (2) KLT SN 50. In view of the authoritative decision of the Supreme Court in (2003) 6 SCC 137 we are of the view that the claimants are entitled to only the amount awarded under Section 166 of the Motor under the Workmen's Compensation Act over and above the amount awarded under the Motor Vehicles Act in the same petition, specially in the absence of such claim in the claim petition. Therefore, direction of the Tribunal to pay compensation under the Workmen's Compensation Act by the appellant insurance company is set aside.
The appeal is allowed.