Jammu & Kashmir High Court
State Of J And K And Ors. vs Mst. Jali And Ors. on 10 October, 2006
Equivalent citations: 2007(1)JKJ510, 2007 A I H C 1644, (2007) 4 TAC 683 (2008) 2 ACC 682, (2008) 2 ACC 682
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This Civil First Appeal is directed against the judgment/award dated 1st June, 2005 passed by Motor Accident Claims Tribunal, Pulwama, in a claim petition titled Mst. Jali and Ors. v. State and Ors., which shall be hereinafter referred to as impugned award. Factual Background;
2. Claimants-respondents filed a claim petition before Motor Accident Claims Tribunal, Pulwama, on 9th May, 2001 for grant of compensation on the grounds that deceased Mohammad Ashraf Kumar, was an employee in the office of appellants-non-applicants and was working in the office of the Executive Engineer, Mechanical Division, Srinagar, as Helper Deceased was holding a driving licence and came to be directed to drive vehicle bearing registration No. BL-B Model BEHL vide order dated 18th December, 1997 as averred in the claim petition and met with an accident on 22nd September, 1998 while performing his duties, at Pahlipora road. Deceased in order to save his life jumped out of the vehicle but he sustained injuries and succumbed to injuries. Further, it is averred in the claim petition that deceased was 35 years of age at the time of accident and was drawing salary of Rs. 3,383/-. Deceased left behind widow, children and parents i.e. claimants-respondents.
3. Respondents filed written statement/objections and following issues came to be framed:
1. What was the income and age of the deceased at the time of accident?....OPP
2. What was the dependency of the deceased at the time of death and whether the petitioners are entitled to any compensation, if so, how much and from whom?....OPP
3. Whether the court has no jurisdiction to try the case?....OPP
4. Whether the petition is not maintainable?....OPR
5. Relief
4. Exparte award dated 27th November, 2002 came to be passed, which came to be assailed by the appellants-non applicants by the medium of C1MA No. 79/2003. The said appeal came to be allowed and award came to be set-aside and case was remanded back.
5. Parties examined witnesses. Claimants-respondents examined Mohammad Sultan Kumar and Mst. Jali, claimant, also appeared as witness. Witnesses deposed that deceased was on duty at Shopian and was driving Dozer -vehicle of the non applicants- appellants. Deceased was 35 years of age and was drawing Rs. 3300/- and left behind widow, children and parents i.e. claimants-respondents. Deceased was maintaining the claimants.
6. Appellants have examined only one witness, Mohammad Yousuf Shah, who has deposed that deceased was employee of non applicants-appellants. On 22nd September, 1998 deceased was driving a Loader at Shopian, and accident occurred and he died on spot. The date of birth of the deceased was 61h January, 1963 as per service record and was working in the grade of Rs. 750-900 and was drawing Rs. 3300/- as salary per month. The non-applicants-appellants have granted all benefits in favour of the widow in terms of SRO 122 read with SRO 43.
Issuewise finding:
Issue No. 1.
7. There is clinching evidence on the file that deceased was 35 years of age at the time of accident and was drawing Rs. 3500/- per month and accordingly Tribunal rightly held that deceased was drawing Rs. 3500/- as salary per month. The finding returned by the trial court is perfectly correct, needs no interference.
Issue No. 2.
8. The averments contained in the claim petition that the claimants-respondents have lost source of dependency and were dependent on deceased stands proved and appellants have not rebutted the said averment. There is sufficient proof on the file that claimants-respondents were dependents of the deceased and have lost source of dependency.
Issue Nos. 3 and 4.
9. It appears that this claim petition came to be filed under Section 163A of the Motor Vehicles Act and accordingly compensation came to be awarded.
10. Learned Counsel for the non-applicants-appellants argued that claim petition was not maintainable for the reasons that deceased was driver and claimants or his legal heirs cannot claim compensation in terms of provisions of the Motor Vehicles Act.
11. I am of the considered view that this argument of learned Counsel for non applicants-appellants is not tenable and is devoid of force for the following reasons.
12. It is profitable to reproduce Section 163A of the Motor Vehicles Act, herein:
163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation, For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act. 1923 (8 of 1923).
(2) In any claim for compensation under Sub-section (1), the claimant shall not be 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 or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
13. While going through this provision of law one comes to an inescapable conclusion that the claimants can file claim petition in terms of Section 163A of Motor Vehicles Act and have to prove only two following points:
(a) age of the deceased; and
(b) income of the deceased.
14. In the instant case both age as well as income of the deceased has been proved. Thus, claimants-respondents are within their rights to claim compensation in terms of Section 163A of Motor Vehicles Act without proving by whose negligence the accident has occurred.
15. Workman-legal representatives of the deceased workman have two remedies for claiming compensation; one in terms of mandate of Workman's Compensation Act and second in terms of mandate of the Motor Vehicles Act. But the choice of exercising option lies with claimant-legal representatives of the deceased for the following reasons:
16. It is profitable to reproduce Section 167 of the Motor Vehicles Act, herein, which reads as under:
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 Act, 1923 the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts hut not under both.
17. This provision of law clearly provides option to the claimants and it is their choice to invoke jurisdiction under Workmen's Compensation Act or under Motor Vehicles Act and choice of election lies with them.
18. Apex Court in case titled National Insurance Co. Ltd. v. Mastan has held as under:
23. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act 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. Section 167 contains a non-obslante clause providing for such an option notwithstanding anything contained in the 1923 Act.
24. The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, form asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.
35. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act. 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act 1988 deals with what is known as 'no fault" liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasizes what is emphasized by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act. 1988, would apply even if the claim is made under the Workmen's Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act. 1988 overriding effect.
19. Andhra Pradesh High Court in case titled Kore Laxmi and Ors. v. United India Insurance Co. Ltd. and Ors. has held that the workman or his dependents can seek compensation from Tribunal under Motor Vehicles Act or from the Commissioner under Workmen's Compensation Act. It is profitable to reproduce paras 5 and 6 of the said judgment herein:
5. Aggrieved by the said award and decree, the insurance company carried the matter in appeal to this court. The insurance company before this court contended that since the accident has taken place due to the negligence of the driver, he cannot approach Motor Vehicles Tribunal Claiming compensation and the only course open to him is to approach the Commissioner under the Workmen's Compensation Act. This contention found favour with the learned Judge and the award of the Tribunal was set aside on the ground of want of jurisdiction to adjudicate the dispute under Motor Vehicles Act. Hence, the claimants preferred the present L.P.A.
6. Learned Counsel for the appellants having brought to our notice that Section 163A of the Motor Vehicles Act stated that though this provision was brought to the notice of the learned single Judge, the appeal was dismissed by the learned Judge without adverting to their contention, we do not want to go into the controversy as to whether this section was brought to the notice of the learned single Judge or not. It is suffice to state that the general rule of proving rash and negligent driving to claim compensation under Motor Vehicles Act was diluted by introduction of this section. This being welfare legislation is intended to provide financial assistance to the dependants of the person involved in a road accident and incurred inability or suffered death. Hence, we have no hesitation hold that the dependants of the deceased person are having option either to approach the Commissioner under Workmen's Compensation Act since the person died during the course of his employment or under Section 163A of the Motor Vehicles Act. Since the provisions of Motor Vehicles Act are more beneficial, the claimants rightly approached the Tribunal under the Motor Vehicles Act. The learned Counsel for the insurance company strenuously contended that the claimants filed application under Section 166 of the Act and as such the court below gravely erred in applying the "fable given in Second Schedule to Motor Vehicles Act under Section 163A of the Act. This objection cannot be sustained at this point of time, since the Supreme Court as early as in 1950 held that even if a party approaches the court invoking a wrong provision, the court is always bound to do justice by applying the correcdt law. Though the learned District Judge did not specifically state that he was passing the award under Section 163A of the Motor Vehicles Act, the very fact that he applied the section in awarding compensation indicates' that he is conscious of the fact that he was passing the award under Section 163A. Hence, this contention cannot hold water.
20. Thus, it cannot he said that Motor Accident Claims Tribunal was not competent and, having jurisdiction to entertain the claim petition and award compensation. Thus, argument of learned Counsel for appellants-non applicants is devoid of any force.
21. Keeping in view the above discussion, issue Nos. 3 and 4 came to be rightly decided by the Tribunal by holding that tribunal is having jurisdiction to try the claim petition.
22. Third question which needs adjudication is whether awarded amount is adequate?
23. Claimants-respondents have proved age of the deceased and income of the deceased. Keeping in view the age of the deceased, the tribunal has rightly applied multiplier 15 and held that the loss of dependency to the claimants is Rs. 2500/- after making one third deduction. I am of the considered view that trial court has awarded just and appropriate compensation in favour of the claimants/respondents.
24. Having glance of the above discussion, I am of the considered view that trial court has rightly entertained the petition and awarded compensation.
25. In view of the above discussion, appeal is dismissed and impugned award is upheld, Registry is directed to release the awarded amount in favour of the claimants in terms of the judgment passed by the Tribunal.
Send down the record along with a copy of this order. Appeal dismissed.