Andhra HC (Pre-Telangana)
United India Insurance Co. Ltd., Armoor ... vs Kore Laxmi And Ors. on 5 December, 2001
Equivalent citations: 2003ACJ203, 2002(2)ALD811, AIRONLINE 2001 AP 11
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER
N.V. Ramana, J,
1. This CMA is filed by United India Insurance Company Limited (for short ('the Insurance Company') questioning the order and decree passed by the Motor Accidents Claims Tribunal, Adilabad (for short 'the Claims Tribunal').
2. The respondents 1 to 5-claimants laid a claim before the Claims Tribunal under Section 166(17) (c) of the Motor Vehicles Act, 1988 (for short 'the MV Act'), claiming compensation of Rs. 2.50 lakhs on account of the death of one K. Anand, who is the husband of the 1st claimant, father of the 2nd claimant, brother of the 3rd claimant and son of claimants 4 and 5.
3. The facts leading to the filing of the claim are as follows:
4. The deceased namely K. Anand is the driver of the lorry bearing No. AP-25-T-1452. On 5-2-1995, while on his way from Nagpur to Nizamabad, and on reaching Chincholi village X Road, he lost control over the lorry and rammed into an oncoming lorry bearing No. ATJ 407 (hereinafter referred to as 'the opposite lorry'). The deceased sustained multiple injuries all over his body, and while undergoing treatment at Government Hospital, Nirmal, he succumbed to injuries on the same day.
5. Before the Claims Tribunal, the owner of the lorry was arrayed as 1st respondent and the appellant, which insured the vehicle of respondent No. 1 was arrayed as 2nd respondent. The insurance company filed counter denying the averments made in the claim petition. It took two pleas-Firstly, that the claim petition is bad for non-joinder of driver and owner of the opposite lorry, and the Insurance Company, which insured the opposite lorry, as parties to the claim petition, and secondly, that the claimants have to make the claim before the Commissioner under the Workmen's Compensation Act, 1923 (for short 'the WC Act'). On behalf of the claimants PWs.1 and 2 were examined and Exs.A1 to A5 were got marked through PW1. The 1st respondent remained ex parte. The Insurance Company neither examined any witness nor got marked any documents in support of their case.
6. The Claims Tribunal on perusal of the evidence and the material on record, though held that the accident occurred due to the rash and negligent driving of the deceased, determined and awarded a sum of Rs. 2.59 lakhs as compensation to the claimants. Assailing the validity of the said order and decree passed by the Claims Tribunal, the present appeal has been preferred by the Insurance Company.
7. The learned Counsel for the appellant-Insurance Company contended that the Claims Tribunal was not justified in awarding compensation under the MV Act having recorded a finding that the deceased himself is responsible for the accident. On the other hand, the learned Counsel for the respondents-claimants contended that under Section 167 of the MV Act, the claimants have option either to move the Claims Tribunal or the Commissioner under the WC Act, seeking compensation.
8. In the instant case, the accident in question occurred due to the negligence on the part of the deceased. There is no negligence attributed to the driver of the opposite lorry. The finding that the deceased himself was responsible for the accident was not challenged by the respondents-claimants. The foundation for laying a claim under Section 166 of the MV Act is based on a tort, which flows from wrongful act, neglect or default on the part of the person who is liable to pay compensation either independently or vicariously. But the facts of the present case would disclose that the owner is neither vicariously nor independently responsible for the accident. In this context, a reference to Section 1-A of the Indian Fatal Accidents Act, 1855 may be made, which states that the claimant has to show wrongful act, neglect or default on the person, who is liable to pay compensation. In the instant case also unless the insured is made liable to pay compensation under the provisions of the MV Act, the insurer as indemnifier is not liable to pay compensation.
9. In order to consider the rival contentions of the respective Counsel, it is necessary to look into the provisions of Section 167 of the MV Act, which reads :
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 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".
10. A bare perusal of Section 167 of MV Act, would disclose that the claimants have option either to move the Claims Tribunal under the MV Act or the Commissioner under the WC Act, but not under both. The concept of awarding compensation under the MV Act and the WC Act is quite different and distinct. The provisions of the MV Act would disclose that the motor vehicle when in use causes injury to any person, then the liability to pay compensation arises and the Claims Tribunal can adjudicate upon the liability and determine the just compensation. The administration of justice under the MV Act is based on the principle of law of torts. A reading of Sections 166 to 175 of the MV Act, makes this clear that while determining the quantum of compensation, which a person is liable to pay, the Claims Tribunal has to keep the principle of negligence in view with an exception to Section 140 of the MV Act (no fault liability).
11. Under the MV Act, the Insurer is liable to indemnify the liability, which may be incurred by the insured in respect of death or bodily injury caused to a person by or arising out of the use of the vehicle in a public place. But under the WC Act, unless it is shown that the accident arose out of and in the course of employment, the insurer and the insured are not liable to pay compensation irrespective of whether there is negligence on the part of workmen or not. In the instant case, the claimants did not establish that the accident occurred due to the wrongful act or default or negligence on the part of the owner of the vehicle or any other person. In the absence of such finding, the claim made by the claimants under the MV Act, cannot be sustained. In my view, the Claims Tribunal has not taken into consideration the relevant provisions while determining and awarding the compensation. The claim for compensation under the MV Act can be entertained by the Claims Tribunal only when it is shown that the accident occurred is due to actionable negligence on the part of the driver of the vehicle or its, causing injury or death to a third party. In the instant case, the accident occurred due to the negligence on the part of the deceased on himself, and as such claim by his legal representatives could be entertained by the Claims Tribunal under Section 166 of the MV Act.
12. We may now refer to the decisions relied upon by the learned Counsel for the respective parties.
13. The learned Counsel appearing on behalf of the appellant-Insurance Company, in support of his contention that the Claims Tribunal under the MV Act has no power to grant compensation, which is to be determined and awarded under the WC Act, placed reliance upon the several decisions of various High Courts and apex Court. In APSRTC v. Shaik Ameela Begum, , A Division Bench of this Court upon consideration the said question, held:
We have to hold that the Claims Tribunal cannot enquire into the compensation that can be claimed and be awarded under the Workmen's Compensation Act on the basis of statutorily imposed strict liability under the Workmen's Compensation Act de hors negligence.
14. In Shashi Devi v. Mohd. Ahsan, 1991 ACJ 62, the Allahabad High Court upon considering similar question, held that the Claims Tribunal under the MV Act cannot determine and award compensation under the WC Act. Holding so it set aside the award passed by Claims Tribunal under the WC Act, and remanded the matter to the Commissioner under the WC Act, determination of the compensation thereunder.
15. In Neelabai Mahadeo Salunkhe v. Shammo Tatoba Pawar, , the Bombay High Court dealt with a matter relating to the death of a driver in the course of his employment. The High Court while observing that claim petition under the MV Act is not maintainable, held:
The learned Commissioner for Workmen's Compensation held that the party had a choice to make a claim before either of the two forums and once the claim was made before the Motor Accidents Claims Tribunal, no claim could be made for compensation in respect of the same accident invoking Workmen's Compensation Act, 1923. The proposition formulated by the trial Court is too wide and is incorrect. In my opinion, the learned Commissioner for Workmen's Compensation was clearly in error. In the first instance it is required to be decided as to whether the death or bodily injury in question gave rise to a claim for compensation under the MV Act, 1939 as well as a claim under Workmen's Compensation Act, 1923. The dependents of the deceased may not be aware about the cause for the death of the deceased and may not be able to prove that the deceased had died as a result of accident which occurred due to actionable negligence of the owner or the driver concerned. In such a situation, it shall have to be held that the remedy of filing a claim for compensation under Section 110-A of the MV Act was misconceived by the dependents of the deceased and the applicants could not lawfully make a claim for compensation under Section 110-A of the Act. In such a case, neither Section 110-A of the Act is attracted nor Section 110-AA can be invoked.
In the result the appeal is allowed. The finding recorded by the Commissioner for Workmen's Compensation to the effect that the application made by the claimants under Workmen's Compensation Act, 1923 was not maintainable in law and is set aside.
The application is held to be maintainable. The proceedings are remanded to the Commissioner for Workmen's Compensation for deciding the remaining issues on merits and in accordance with law.
16. In Arun Kumar Rastogi v. Chandra Kumari, 1987 ACJ 149, the facts were this-A truck dashed against a tree and its driver died instantaneously on account of the injuries sustained by him in the accident. The legal representatives of the driver filed a claim petition under Section 110-A of the MV Act before the Claims Tribunal against the owner and the insurer of the truck. The Allahabad High Court after elaborate consideration of the provisions of Sections 110-A, 110-AA, 95 of the MV Act and the provisions of the WC Act, set aside the award passed by the Claims Tribunal holding that the forum opted by the claimants is not the correct one. It further held in para 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 claim for compensation both under the MV 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 MV 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 owner of the truck. The observations contained in a recent decision of the Bombay High Court reported in National Insurance Co. Ltd. v. Gonti Eliza David, 1984 ACJ 8 Bombay, 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 110-AA of the MV 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 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 lee way in the matter of quantification of damages, the process becomes mechanical once the pay packet of the claimant is known. The prove 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, a forum shopping if the workmen has chosen to undertake the responsibility of discharging the onerous burden imposed upon by him by Law of Tort, if follows that he should get the benefit of the expression including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, occurring Clause (a) of Sub-section (2) of Section 95 of MV Act which implies that the insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act.
17. In Hansibal v. National Insurance Company, 1986 ACJ 144, the facts were this; The driver of the bus died in an accident due to his own negligence as the bus, which he was driving fell into a pit. In such circumstances, the Rajasthan High Court held that the accident occurred due to actionable negligence of the deceased himself being a driver, and as such, no claim by his legal representatives can be entertained by the Claims Tribunal under Section 110 of the MV Act. The claim for compensation under Section 110 of the MV Act arises only in cases where an accident occurred due to actionable negligence of the owner of the vehicle and caused some damage or injury to the third parties.
18. In Minu B. Mehta v. Bala Krishna Ramachandra Nayan, 1977 ACJ 118, the apex Court upon considering the aspect of negligence held that it is incumbent upon the claimant to prove negligence, before the owner or insurer could be made liable to pay compensation, as the liabilities to compensate the victim is based on law of torts. Observing that if the compensation is awarded without proof of negligence, it would lead to strange results, and that the concept of vicarious liability without any negligence is opposed to the basic principles of law, the apex Court held:
This plea ignores the basic requirements of the owners liability and the claimants right to receive compensation. The owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate any one else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable the the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appeal to be just. The plea that the claims Tribunal is entitled to award compensation which appear to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.
19. In D. Jayamma v. S. Govindaswamy, 1982 ACJ 467, a similar question arose for consideration before a Division Bench of the Karnataka High Court. Therein, the driver lost control over the lorry while negotiating a curve. The lorry fell into a ditch resulting in the death of the driver. In those circumstances, the High Court observing that legal representatives of the deceased are not entitled to claim compensation under the MV Act, held that their remedy lies under the provisions of the WC Act. In paragraphs 10, 11, 12 and 13, the Division Bench held as follows:
To make a claim under the provisions of the Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu R. Mehta and Anr. v. Balakrishna Ramachandra Nayan and Anr. Therefore, if the accident, as is in the present case, has occurred due to the rash and negligent driving of the lorry by the deceased driver himself, the petition for compensation cannot be under Section 110-A of the Motor Vehicles Act by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle, no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petitioner, and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.
The facts of the case would attract the doctrine of res ipsa loquitor (the thing speaks for itself). While negotiating the curve, the lorry which was under the control of its driver, namely the deceased Ramalingam, left the road and fell into a ditch. Without more, therefore, it is to be presumed that the accident was the result of rash and negligent driving of the lorry by its driver, namely the deceased Ramalingam. Therefore, it is obvious, that his legal representatives cannot claim compensation under Section 110-A of the Motor Vehicles Act.
If the person injured in the accident in this case was an employee, for example, a cleaner in the lorry or a person employed for the purpose of loading and unloading then there would be an option for him either to claim higher compensation under Section 110-A of the Motor Vehicles Act providing actionable negligence on the part of the driver of the vehicle or to approach and get compensation under the Workmen's Compensation Act, without the necessity of proving negligence on the part of the driver. It is in such contingencies that Section 110-AA of the Motor Vehicles Act is attracted. But, where the accident is entirely due to the rash and negligent driving of the lorry by the deceased himself, his legal representatives cannot claim compensation under Section 110-A A of the Motor Vehicles Act as it is not attracted.
In the circumstances, therefore, it is obvious, that the petition for compensation under Section 110-A of the Motor Vehicles Act is misconceived. It should be an application under the Workmen's Compensation Act, if at all, before the concerned authority.
20. The Karnataka High Court in B. Prabhakar v. Bachima, 1984 ACJ 582, upon analysing the provisions of Section 110 of the MV Act held:
Analysing the section, it becomes clear that before an application could be entertained by the Accidents Claims Tribunal under Section 110 of the Motor Vehicles Act, the cause of action should be such as could be entertained by the Claims Tribunal, it must give rise to a claim for compensation under Section 110 of the Motor Vehicles Act. In other words, the accident must have occurred due to actionable negligence of the owner or the driver of the vehicle, causing injury or death of the third party. When the accident occurred due to actionable negligence of the deceased himself being the driver, no claim by his legal representatives can be entertained by the Claims Tribunal under Section 110 of the Motor Vehicles Act. That being so, Section 110-A of the Act would not come into play at all. For, the Claims Tribunal has no jurisdiction to entertain such an application and it has, therefore, rejected the same. (vide: D. Jayamma).
21. The learned Counsel for the respondents in support of his contentions relied upon the judgment of this Court in the United India Fire and General Insurance Co. v. Venkanna, 1985 (2) ALT 248, wherein it was held:
... When choice is given by the Act to the claimants and the remedy under the Act is being more beneficial, it is being pursued by them. So it cannot be said that the Tribunal lacked jurisdiction to award compensation. Accordingly, I reject this contention and hold that the petition is maintainable.
... Here is a case of the driver of the vehicle, who is involved in the accident viz., the vehicle hit the tree and the lorry overturned, and he died as a result thereof. This risk is admittedly covered by the policy. No doubt, normally under the common law when a liability is sought to be fastened against the owner for tortious acts of his driver, proof of negligence on the latter's part is insisted upon. But that situation does not arise here. Ex.B3 (para 10) covers the risk of the death of the driver or cleaner of the vehicle and five workmen and additional premium was paid. Thereby the owner sought to mitigate his liability. Section 110 of the Act postulates adjudication of a claim for compensation in respect of accidents involving the death of or bodily injury to persons arise out of the use of... motor vehicles... or both.
.... From the foregoing conspectus the principle that sprouts is this; when the policy covers the risk in relation to the death of the driver of the vehicle and when it was involved in an accident while it was used in a public place resulting in the death of the driver, the contract of insurance enjoins the Insurance Company to pay compensation in terms thereof and the need to prove negligence of the self-same driver is obviated by necessary implication of the contract. Therefore, the absence of recording a finding by the lower Tribunal in this regard does not militate against the legality of the award....
22. In the above case, it was the specific case of the owner that risk is covered under the Insurance policy by way of payment of additional premium. Basing on the said averment, the Court held that the defendants may pursue their remedy under the MV Act against the Insurance Company. In the present case, it is not the specific case of the claimants that premium has been paid to cover the risk of the driver under the MV Act, in addition to premium payable for covering the risk of the workman under the WC Act.
23. In Venkanna, the Court did not consider the effect of the judgment of the apex Court Minu B. Mehta, as it was not referred before it. By reason of the law laid down in Minu B. Mehta, unless the claimant proves some actionable negligence on the part of the owner, or the owner is negligent in maintaining the vehicle, the Insurance Company is not liable to pay compensation. The apex Court in Minu B. Mehta, at para 28 held that the owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person, who is bound to compensate due to the failure to perform a legal obligation.
24. The remedy under the WC Act is available only when the driver either sustains injuries or dies, during the course of his employment, and irrespective of negligence by reason of the provisions contained therein, the insured and insurer are liable to pay compensation either to the workman or to his legal representatives.
25. Upon hearing the learned Counsel for the parties, and considering the various provisions of the MV Act, and the judgments of various Courts, governing the field, I am of the opinion that for laying a claim under the MV Act, it is necessary to plead and prove that the accident was the result of some actionable negligence of the third party. Without proving such actionable negligence on the part of the respondents, the claim petition for compensation under the MV Act is not maintainable. In the instant case, the facts on record disclose that the driver met with an accident due to his own negligence. Unless the claimants prove and establish that they have some cause of action against the party respondents, they cannot lay a claim under the MV Act. In the instant case, it is not the case of the claimants that the accident occurred due to some mechanical breakdown or the owner is negligent in maintaining the vehicle, and that the owner failed to discharge his duty cast on him or has acted in a careless manner. In the absence of such negligence on his part, the insured and the insurer cannot be made liable to pay compensation. There is neither any pleading nor any evidence on record to show that there is some breach committed by the owner of the vehicle in discharging his legal obligation.
26. In my view, the right to receive compensation can only be against the person, who failed to perform his legal obligation. The Claims Tribunal, constituted under the provisions of the MV Act renders justice on the basis of common law and law of torts. Under the MV Act, unless the owner is legally liable, the insurer who is an indemnifier is not liable to pay compensation.
27. In the background of the legal position, the only question that arises for consideration of this Court is as to whether in the facts and circumstances of the case, the Claims Tribunal was justified in exercising its jurisdiction to determine the compensation that is payable under the provisions of the WC Act.
28. The provisions contained in Chapters X, XI and XII of the MV Act and the provisions of the WC Act, are pieces of social welfare legislations. Upon perusal of the provisions of the MV Act and the WC Act, it is clear that under the MV Act, the compensation payable is on the basis of negligence and the liability is on the basis of tort, with an exception to Section 140 of the MV Act, and whereas under the WC Act, the compensation payable is on the basis of strict liability, which is imposed by the statute itself.
29. In the above view of the matter, I am of the opinion that neither this Court nor the Claims Tribunal has the power to enquire into the question of compensation payable under the WC Act. The said question has to be determined by the Commissioner under the WC Act, on the basis of strict liability, which is imposed by the statute itself.
30. In the facts and circumstances of the present case, I am of the opinion that the claimants have mistakenly moved the Claims Tribunal under the MV Act. It does not mean that the claimants have elected a forum. In the facts and circumstances of the case, even though the claimants/ respondents filed claim petition before the Claims Tribunal under the MV Act, it does not bar them from making a claim before the Commissioner under the WC Act. The claimants are at liberty to file claim petition before the Commissioner for Workmen's Compensation once again to seek redressal of their claim.
31. On 15-11-1999, this Court passed an interim order staying the operation of the order dated 23-6-1998, passed by the Claims Tribunal, subject to the condition of the Insurance Company depositing half of the decretal amount and costs in the lower Court. Pursuant to the said interim order, the Insurance Company deposited the amount in the lower Court. Having regard to the amount deposited by the Insurance Company, this Court again on 16-9-1999, passed an order making the interim stay absolute and permitted the claimants to withdraw the amount deposited by the Insurance Company. Having regard to the fact that this Court has held that the remedy of the claimants is to move the Commissioner under the WC Act, for compensation, I direct that the amount, if any, withdrawn by the claimants, pursuant to the above order, shall be adjusted in the compensation that may be determined by the Commissioner under the WC Act.
32. For the foregoing reasons, I allow the CMA and set aside the impugned order. No costs.