Madhya Pradesh High Court
Ramji Porte And Ors. vs Premabai Patel And Ors. on 9 January, 1998
Equivalent citations: 2000ACJ1359, AIR1998MP257, 1998(2)MPLJ442, AIR 1998 MADHYA PRADESH 257, (1998) 2 TAC 918, (1998) 2 JAB LJ 34, (1998) 2 MPLJ 442, (2000) 2 ACJ 1359, (1999) 1 CIVLJ 511
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S. K. Dubey, J.
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988(for short 'the Act') against the award dated 9-2-1996, passed in Claim Case No. 20/94, by IInd Additional Motor Accidents Claims Tribunal, Bilaspur.
2. The appellants are the legal representatives of the deceased Sunder Singh, aged about 35 years, who was employed as a driver on monthly wages of Rs. 1500/- on truck No. CIL 5248 owned by respondent No. 1 and insured with respondent No. 2. The appellants filed an application under Section 166 of the Act to claim compensation Rs. 5,40,000.00 for the death of Sunder Singh caused in motor accident on 5-11-93, on the averments that the accident was caused due to negligence of the owner of the truck as the truck was 15 years old and was not kept in roadworthy condition. Though, the truck had a fitness certificate, but the deceased complained about its condition as on road it used to go of and on out of order. On the fateful day of accident the truck after loading the fire wood of about 80 quintals beyond its capacity was coming from Chiran. Because of the heavy load first one of its tyres got punctured and thereafter near Saraiya barrier its arm bolt got broken as a result of which the vehicle did not remain in control, it turned turtle resulting in instantaneous death of the deceased driver. The claim was contested by the respondents.
The respondent No. 1 contended that truck was in good road worthy condition which at the relevant time was loaded with 80 quintals of fire wood only while loading capacity of the truck was 10 quintals. The deceased used to consume liquor. On the day of occurrence also the deceased was driving the truck after consuming the liquor and, therefore, could not control the steering wheel as a result of which the truck turtled down. The accident was caused due to the own fault and negligence of the deceased, hence the claimants are not entitled to claim any compensation from the employer/owner of the truck. The respondent No. 2. the insurer denied its liability to pay compensation. The claimants examined AW 1 Ramji the father of the deceased, who deposed that he had also worked as a helper in the truck, the truck was an old truck of 10-15 years, which was not. kept in roadworthy condition. A. W. 2 Jawar. a co-employee on the truck, who at the relevant time was sitting by the side of the driver, stated that near Kewchi mal tyre of the truck got punctured which was got repaired. At that time the deceased and he took their meals. Thereafter, they proceeded, when the truck reached near Sarai barrier the arm bolt of the truck got broken as a result of which the steering wheel did not remain in control of the driver, because of that the truck turned turtle. In this he fell down on the seat of the driver while Sunder Singh was crushed. He denied the suggestion that Sunder Singh used to consume liquor. He also denied that after taking liquor Sunder Singh was driving the truck. The respondents did not lead any evidence in rebuttal about the condition of the truck and the pleas raised in defence. The Tribunal after appreciation of evidence dismissed the claim holding that the deceased himself was responsible for the accident.
3. Section 167 of the Act, corresponding to Section 110-AA of the repealed Motor Vehicles Act, 1939 (for short the Act of 1939') gives an option to the person entitled to claim compensation to choose and claim compensation either under Chapter XII of the Act, corresponding to Chapter IV of the Act of 1939, or under the provisions of Workmens Compensation Act, 1923 (W.C.Act). What is prohibited is that the person entitled to claim compensation cannot claim the compensation under both the Acts. It is well settled that if the person entitled elects to claim compensation against a tort feaser under Chapter XII of the Act, he takes the burden upon himself to establish the negligence of the owner of the vehicle. On establishment of negligence, the Tribunal has to determine compensation in accordance with the provisions of the Act for the death or injury caused to a workman in motor accident by the use of motor vehicle wherein norms of W.C. Act in computing the compensation cannot be applied and such claimant would be entitled for 'just' compensation under common law. See, Suresh Chandra v. State of U.P., (1995) 6 SCC 623, Oriental Insurance Co. Ltd. v. Sudha Devi.
1997 (1) MPLJ 362, K.K. Jain v. Smt. Massor Anwar, AIR 1990 MP 87, Divisional Engineers MPEB v. Mantobai, 1988 JLJ 625 : 1989 ACJ 498, Mangilal v. Pramod, 1988 JLJ 121 : 1998 ACJ 307, Madulova Satyanarayana v. Bodirador Lokeshwari, AIR 1991 AP 123, National Insurance Co. Ltd. v. Gonti Eliza David, 1984 ACJ 8 (Bom), Oriental Fire and General Insurance Co. Ltd. v. Ram Sunder Dubey, 1982 ACJ 365 (All) AIR 1982 All 198.
4. As the appellant have approached the Tribunal by an application under Section 166 of the Act we have to consider whether the accident was caused due to negligence of the deceased or the accident occurred as the vehicle was not kept in a roadworthy condition. The claimants have come with a specific case that the vehicle was quite old, the deceased complained to respondent No. 1 about the condition of the vehicle at several time and to keep the vehicle in a roadworthy condition, but the vehicle was not kept in roadworthy condition. It has also come in evidence that on the day of accident the truck was heavily loaded. Because of heavy load truck tyre was punctured and thereafter its arm bolt was broken resulting in loosing the control of the vehicle by the deceased. The respondents have not led any evidence that before the vehicle left, it was checked and was found to be in a roadworthy condition and the accident was not due to mechanical defect but was due to own default of the deceased.
5. From the evidence it is established that the accident occurred due to breakage of arm bolt. When the accident occurs due to mechanical defect the owner of the vehicle has to prove that he had taken all necessary precautions and kept the vehicle in a roadworthy condition and that the defect occurred in spite of reasonable care and caution taken by the owner. In order to sustain a plea that the accident was due to the mechanical defect the owner must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The burden of proving that the accident was due to mechanical defect is on the owner and it is his duty that he had taken all reasonable care like a prudent man and despite such care the defect ramained hidden and, therefore, the accident was inevitable so as to absolve from the liability. See, Minu B. Mehta v. Balkrishna Ramchandra Nayan, AIR 1977 SC 1248, Babi v. Sona Khan, 1966 MPLJ 988 (Sic) and a recent decision of this Court in State of M.P. v. Smt. Kishori, M. A. No. 602 of 1992, decided on 24-6-97. In view of the settled position of law in case of accident occurring due to mechanical defect and in the absence of any evidence in support of the defence raised by the owner of the vehicle, we are of the view that the accident occurred due to the breakage of the arm bolt as a result of which the deceased lost control of the vehicle which turned turtle.
6. Compensation. It is not in dispute that the deceased was aged 35 years and was drawing Rs. 1500/- per month as his wages. He had left behind four dependents. Therefore, if one-third is deducted for personal living "expenses of the deceased, the dependency would come to Rs. 1000/- per month yearly Rs. 12,000/-. Applying the multiplier of 16 the amount would work out at Rs. 1,92,000/-. In this Rs. 8000/- is added for consortium to the widow and Rs. 8000/- for loss of estate and Rs. 2000/- towards funeral expenses, the total would come to Rs. 2,10,000/- which the appellants would be entitled as just compensation with interest thereon at the rate of 12% per annum from the date of application 21-4-1994.
7. As to liability of the Insurance Company: Shri N.S. Ruprah, learned counsel for the respondent No. 2 submitted that so far as the liability of the insurer is concerned the policy was a 'Policy for Act liability' only. Therefore, according to Section 147(2) of the Act corresponding to Section 95(2) of the Act of 1939, as the deceased was an employee, the liability of the respondent No. 2 would be limited to what is contained in W.C. Act. He cited a recent Single Bench decision in, National Insurance Co. Ltd v. Rainki Bai, M.A. No. 941/94 decided on 12-5-97 : 1997 (2) MPLJ 455, wherein the decisions of Karnalaka and Orissa High Courts in New India Insurance Co. Ltd. v. Smt. Meenaxi, AIR 1981 Kant 68, New India Assurance Co. v. Budhei Bewa, AIR 1985 Orissa 191, were placed reliance. The learned counsel also cited the decisions in case of, Oriental Insurance Co. Ltd. v. Hanumantappa, 1992 ACJ 1083 (Kant), Oriental Insurance Co. Ltd. v. Guru Charan Saren, AIR 1991 Orissa 294 : 1992 ACJ 693, Oriental Insurance Co. Ltd. v. Chandra Panigrahi, 1995 ACJ 733 (Orissa).
8. In order to decide the question it is necessary to refer to the provisions of Section 147 of the Act corresponding to Section 95 of the Act of 1939, which reads thus:
"147. Requirements gf policies and limits of liability - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which --
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specifying in the policy to the extent specified in sub-section (2)
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) 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 or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising out under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of this vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place not withstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:
(a) save as provided in Clause(b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithatanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
9. A learned Judge of this Court Dr. T.N. Singh, J. considered the question in Oriental Fire and General Insurance Company Ltd. v. Dhanno, 1987 MPLJ 328 : 1987 ACJ 759 and after referring to proviso (ii) to Sub-section (1)(b) of Section 95 of the Act of 1939 corresponding to the proviso to Section 147(l)(b) of the Act, observed in para-5 thus:
"The provision aforquoted explicitly accepts the requirement of a Policy in the case contemplated thereunder, and it has also not excluded the insurer from entering into a contract of indemnity to cover circumstances and conditions embraced by the provision. Indeed, because of this statutory entitlement, an employee or his legal representatives is/are entitled to exercise option under Section 110-AA to sue the owner of the motor vehicle either under the Workmen's Compensation Act or file claim against him under the Act, as contemplated under Sections 110 and 110-A. Reading clause (i) carefully, I do not see any inhibition or limitation even therein to suggest that when a liability is taken by an insurer thereunder, the extent of liability in such a case would be limited to that as allowed under the Workmen's Compensation Act. What it has merely said is about the nature of the liability and not about the extent of the liability. Shri Singhal, therefore, placed for my consideration the Insurance Policy and relied on endorse No. T.M.T. 16, which is to the effect that, "Company shall indemnify the Insurer against his legal liability under the Workmen's Compensation Act." Herein also, I do not read any limit of liability being explicitly reserved by the Insurer by the terms of the contract that is entered with the owner of the motor vehicle."
10. The decision in, Dhanno's case (supra) was followed by R.K. Varma J. in, Kishori v. Gulab Khan, 1988 (II) ACJ 860 (MP) and also by one of us (S.K. Dubey, J.) in, New India Assurance Co. Ltd. v. Anokhilal, 1993 ACJ 216, wherein para 4 was observed thus:-
"In my opinion, the law has been settled by the decisions of this Court, wherein it has been laid down that a statutory duty is cast upon the insurer under Sub-section (1) read with proviso (1) of Section 95 to indemnify the insured against any liability to pay the compensation to his employee under the Act and such a provision has been made in the insurance policy. As the choice is with the heirs and the heirs have chosen the forum of the Claims Tribunal Judge, instead of the Commissioner for Workmen's Compensation, they are entitled to receive the compensation to the extent of insured's liability fixed by the Motor Vehicles Act, 1939 and the insurance company cannot be allowed to say that insured's liability is limited under the Act."
11. In case of, Mangilal (supra) where the claim was contested by the insurer alone the Division Bench observed that where the claimant prefers the forum of the Tribunal and undertakes the burden of proving negligence there is no reason why his claim should be restricted with reference to the provisions of the W.C. Act. It is under Section 110B of the M.V. Act that the legislature has provided for compensation to the victim of a motor accident. The provision thereunder requires the Tribunal to make an award determining the amount of compensation which appears to it to be just.
12. A Division Bench of Allahabad High Court in case of, Oriental Fire and General Insurance Co. Ltd. v. Ram Sunder Dubey (supra) observed in para 15 thus:
"15. Coming to the argument of Sri. A.B. Saran based on Section 95(2)(a) of the Motor Vehicles Act, the interpretation of the section is that first there is a limit of Rs. 50,000/- in respect of death or bodily injury to an employee. This limit also applies in the case of a claim for the compensation under the Workmen's Compensation Act. The words 'a limit of Rs. 50000/- in all, including the liabilities if any, arising under the Workmen's Compensation Act' in the section indicate that the provision is inclusive i.e. in other words, it provides for a liability of the insurance company both under the Motor Vehicles Act and also under the Workman's Compensation Act. If the words 'if any, arising under the Workmen's Compensation Act, 1923 had not been in the section, it had been open to the insurance company to urge that the liability of an insurance company is limited to the Motor Vehicles Act and would not extend to the Workmen's Compensation Act. These words have been incorporated to prevent any such argument."
13. A Division Bench of AndhraPradesh High Court in, Mandulova Satyanarayana's case (supra) after referring to Section 95 of the Act, overruled its Single Bench decision, in case of New India Assurance Co. Ltd. v. Kamparaju Sunkamma, 1981 ACJ 441 (AP) and observed in para 2 thus:
"In this provision there is nothing to indicate that when a liability is passed on the insurer, the extent of liability should not extend beyond what is provided in the Workmen's Compensation Act. The above said provision accepts the requirement of a policy in the cases contemplated thereunder and it has also not excluded the insurer from entering into a contract of indemnity to cover circumstances and conditions countenanced by the provision. Because of this statutory entitlement, an employee or his legal representatives.
are entitled to exercise option under Section 110AA to sue the owner of the motor vehicle either under the Workmen's Compensation Act or file claim against him under the Act as contemplated under Sections 110 and 110-A. There is nothing in the aforementioned section to suggest that when a liability is taken by the insurer thereunder, the extent of liability in such a case would be limited to that as allowed under the Workmen's Compensalion Act. What is said under Section 95 is only the nature of the liability and not the extent of the liability. The section itself is captioned as 'Requirements of policies and limits of liability. 'The proviso shows that the policy shall not be required to cover the liability in respect of the death arising out of and in the course of his employment, of the employee of a person incurred by the policy or in respect of bodily injury sustained by such an employee other than the liability arising under the Workmen's Compensation Act. It is an exception to an obligation of taking a policy in respect of the liability arising under the Workmen's Compensation Act. But where an agreement was entered into and a policy is taken under which the company undertakes the liability prescribing a limit, it is bound by the policy. Otherwise, the provisions of the Motor Vehicles Act empowering the persons to claim compensation either under the Motor Vehicles Act or under the Workmen's Compensation Act would be defeated. The provisions contained in Section. 110-AA are beneficial and intended to enable the workmen or the legal representatives of the deceased workmen to claim higher compensation if the same can be awarded either under the Motor Vehicles Act or under the Workmen's Compensation Act. If the liability of the Insurance Company is restricted to that specified under the Workmen'sCompensation Act, the object of Section 110-AA of the Motor Vehicles Act would be frustrated."
14. A Division Bench of Bombay High Court in, National Insurance Co. Ltd. v. Gonti Eliza David (supra) after referring to Sub-section (2) of Section 95 of the Act of 1939 observed in paras 12 and 13 thus:
"12. The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating the language of the proviso to sub-section (1) of Section 95 with that in Sub-section (2) of that section. The former seems to tell the insurer and the owner: "as regards third party risk, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmen'sCompensation Act." Sub-section (2) on the other hand gives a confusing mandate: "there is an outer limit of one lac of rupees as respect the liability incurred as a result of an accident but that liability would include a liability arising under the Workmen's Compensation Act also." The use of an inclusive definition in draft-ing Sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmen's Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of Tort."
"13. The one way to resolve the ambiguity would be, as pointed out by the Supreme Court in. Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059 : 1981 ACJ 507 (SC), to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under Section 110-AA 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 choses 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 leeway in the matter of quantification of damages; the process becomes mechanical once the pay packer of the claiment 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 Tort law, 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 Section 95 of the Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act."
15. In the two Division Bench cases of this Court in case of Babi (supra) (Sic) and in case of Oriental Ins. Co. Ltd. (supra) though the question was not directly dealt with, but after holding that there is nothing in the Act to show that while awarding compensation to the claimants, the legal representstives of the deceased or the injured employee, the Tribunal is bound to apply the norms of W.C. Act for determination of compensation and directed the payment of compensation by the Insurance Company as to satisfy the judgment or award under Section 96 of the Act as a judgment-debtor. Thus, this Court's consistent view is that the insurer's liability is not limited in case of claim made by the legal representatives of the deceased or the injured employee who approaches the Tribunal to claim compensation to the extent of liability arising under the W.C. Act. The view taken in, National Ins. Co. Ltd. v. Rainikabai (supra) that as per Section 95(2) of the Act of 1939 the liability of the Insurance Company for the death of an employee is limited to what is contained in W.C. Act runs counter to the decisions of this Court which were not brought to the notice of the learned single Judge. Therefore, we respectfully are unable to subscribe the view taken in National Ins. Co. Ltd. v. Rainikabai (supra) and hold that it does not lay down the correct law.
16. We respectfully also unable to agree with the view taken in the decisions relied by Shri Ruprah and respectfully agree with the view taken by Allahabad. Andhra Pradesh and Bombay High Court in the decisions referred to above which are in line with the consistent view of this Court.
17. As a result of aforesaid discussion, we hold that the respondent No. 2 the insurer would be liable to pay the compensation as awarded by us with its accrued interest and shall deposit the same within a period of two months from the date of supply of certified copy. On deposit the amount shall be distributed keeping in mind the guidelines laid down by the Supreme Court.
18. In the result appeal is allowed with costs.
The award passed by the Tribunal is set aside. Counsel's for Rs. 1500, if pre-certified.