Karnataka High Court
The New India Assurance Co. Ltd vs Rekha W/O. Anil Shelke on 16 April, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. A. PATIL
MFA NO.101204 OF 2014(MV)
BETWEEN:
THE NEW INDIA INSURANCE CO. LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, MARUTI GALLI,
BELAGAVI.
NOW IN APPEAL
REPRESENTED BY CHIEF REGIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
T.P.HUB SRINATH COMPLEX, II FLOOR,
NEW COTTON MARKET, HUBBALLI - 580 022.
...APPELLANT
(BY SRI M.K.SOUDAGAR, ADVOCATE)
AND:
1. SMT.REKHA
W/O ANIL SHELKE,
AGED ABOUT 32 YEARS,
OCC:HOUSEHOLD WORK,
R/O: S/O SHRI L.R.PATIL,
H.NO.360, CHAVDI GALLI BACK SIDE,
MADHAVAPUR,
VADGAON, DISTRICT:BELAGAVI.
2
2. KUMAR.PREM
S/O ANIL SHELKE,
AGED ABOUT 10 YEARS,
OCC:STUDENT (II STANDARD),
R/O: S/O SHRI L.R.PATIL,
H.NO.360, CHAVDI GALLI BACK SIDE,
MADHAVAPUR,
VADGAON, DISTRICT:BELAGAVI.
3. KUMARI AMRUTA
D/O ANIL SHELKE,
AGED ABOUT 6 YEARS,
OCC: STUDENT (KINDERGARTEN),
R/O: S/O SHRI L.R.PATIL,
H.NO.360, CHAVDI GALLI BACK SIDE,
MADHAVAPUR,
VADGAON, DISTRICT:BELAGAVI.
(RESPONDENT NO.2 AND 3 BEING
MINORS ARE REPRESENTED BY THEIR
NEXT FRIEND MINOR GUARDIAN
MOTHER RESPONDENT NO.1)
4. SHRI MAHADEV
S/O YASHWANT CHOUGULE,
AGED ABOUT 62 YEARS,
OCC: BUSINESS,
R/O: TANDULWADI,
TALUK: WALAWA,
DISTRICT: KOLHAPUR.
5. SHRI PRASANNA
S/O VASUDEV GHOTAGE,
AGE: MAJOR,
OCC: BUSINESS,
R/O :1088/B, PRERANA HOMMES,
3
RANADE COLONY, HINDWADI,
BELAGAVI - 590 011.
...RESPONDENTS
(BY SRI VITTHAL S.TELI, ADVOCATE FOR R1 TO R3
R2 AND R3 ARE MINOR R/BY R1
SRI S.B.PATIL, ADVOCATE FOR R4
SRI SANGRAM S.KULKARNI, ADVOCATE FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED 25.01.2014, PASSED IN MVC.NO.873/2012 ON
THE FILE OF THE VI ADDL.DISTRICT AND SESSIONS
JUDGE, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 19.2.2018 COMING
ON THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
4
JUDGMENT
The present appeal has been filed by the Insurer, challenging the judgment and award passed by the VI Additional District and Sessions Judge, Belgaum, in MVC.No.873/2012, dated 25.1.2014.
2. Heard the learned counsel appearing for both the parties.
3. For the purpose of convenience, the parties are referred to as they are referred to before the Tribunal.
4. Brief facts of the case are that on 25.12.2011 at about 3.00 a.m., one Anil Mukund Shelke was travelling in a luxury bus bearing Regn.No.KA-22-B- 3237 as a Cleaner and when the said bus reached near Kameri Village, the driver of the said bus drove the same in a rash and negligent manner and tried to 5 overtake a tractor bearing Regn.No.MH-10-H-1178 along with trailor bearing Regn.No.MH-10-W4930, due to which, he hit the said tractor and trailor, as a result of which, the said Anil Mukind Shelke sustained grievous injuries and succumbed to the said injuries on the spot.
5. For having lost the bread earner wife and children of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act ('MV' Act for short), seeking compensation before the Tribunal. It was the contention of the petitioners that at the time of accident, deceased was earning Rs.300/- per day as a Cleaner.
6. In pursuance of the notice issued by the Tribunal, respondent No.2 remained absent and placed ex parte, whereas respondent Nos.1 and 3 entered appearance and filed their objections denying 6 the contents of the petition contended that the accident in question has occurred due to rash and negligent driving of the driver of the bus. It was contended by respondent No.3 that risk of the deceased who was working as a Cleaner in the said bus, is not covered under the policy. Respondent No.2 has appointed the deceased as a Cleaner and hence he is liable to pay the compensation. On these grounds, they prayed for dismissal of the claim petition.
7. In order to prove the case of the petitioners, first petitioner came to be examined as PW.1 and got marked the documents as per Exs.P1 to P14. Respondents have not led any evidence, but they got marked the documents at Exs.R1 and R2. After framing necessary issues and after hearing the parties to the lis, the Tribunal has passed the impugned judgment awarding compensation of Rs.13,22.000/- 7 with interest at 7% per annum in favour of the claimants. Against the said judgment and order, the Insurance Company is before this Court.
8. Leaned counsel for the appellant-Insurance Company has contended that the liability of the insurer is not in existence as the policy does not cover the risk of the Cleaner as it is an act policy. The Tribunal has erred in computing compensation towards loss of dependency as the deceased was working as a Cleaner, and hence the provisions of Employees' Compensation Act ('EC Act' for short) is applicable at a relevant point of time. The Tribunal, ought to have deducted 50% of the wages and thereafter in accordance with the EC Act ought to have determined the compensation. But the Tribunal has applied the general principles, after deducting 1/3rd towards personal expenses and after applying the multiplier, has awarded the compensation towards 8 of loss of dependency. The said method adopted by the Tribunal is erroneous and not sustainable in law. He has further contended that the liability of the appellant is restricted only to the compensation as per the EC Act and there is no material to show that the claimants have any difficulty in recovering the award amount if it is ordered to be paid by the insured. In that context, he has relied upon a decision in the case of Oriental Insurance Co.Ltd., Vs. Rajakumari & others, reported in [2008] SCCR 331. By relying on a decision in the case of Smt. Bhimavva & others Vs. Shankar @ Adya & others, reported in ILR 2003 KAR 3538 he has contended that under the act policy the legal representatives of the deceased are liable to recover the limited liability and the order passed by the Tribunal is not sustainable in law. He has also relied upon the decisions in the case of United India Insurance Co.Ltd., Vs. 9 C.S.Anilkumar & others, reported in 2008 Kant M.A.C.752 (Kant) and in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Limited, reported in 2013 ACJ 2205. He has further contended that the Insurance Company would be of limited liability to the amount as admissible under WC Act and the balance compensation would have to be paid by the owner- insured. On these grounds, he prayed for allowing the appeal by modifying the impugned judgment and award.
9. Per contra, the learned counsel appearing on behalf of the respondents-claimants has vehemently argued and contended that the claimants are having both the options to file a claim petition before the Commissioner for Workmen's Compensation under EC Act or they can also choose to file a claim petition before the Tribunal under the MV Act. When once 10 they filed a claim petition before the Tribunal and the same is entertained and if the employer has not raised any objections, then it can be presumed that the petitioners have opted to claim the compensation under the provisions of the MV Act. In order to substantiate the said contention, he relied upon a decision in the case of Oriental Insurance Company Limited Vs. Dyamavva & others, reported in 2013(4) KLJ 482(SC). By relying upon a decision in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Limited, reported in 2014 (1) KLJ 374(SC), he further contended that when once the claim Tribunal has awarded the compensation directing that the appellant-Insurer shall pay the amount even beyond its limit along with interest to the claimants and thereafter if at all there is no liability, the same has to be recovered from the owner-insured. In the instant 11 case, the Tribunal has rightly awarded the compensation and the appellant-Insurer has not made out any good grounds to interfere with the impugned judgment and award. On these grounds, he prayed for dismissal of the appeal.
10. The accident in question is not in dispute, so also the death of the deceased in the said accident and the involvement of the offending vehicle which is insured with the appellant -Insurance Company.
11. It is the contention of the learned counsel for the appellant-Insurance Company that death of the employee at the relevant time is not in dispute and in that context, he contended that the provisions of the EC Act are applicable. After assessing the wages of the deceased under the EC Act and after deducting 50% of the wages, the compensation ought not to have been awarded under multiplicand method. For 12 the purpose of brevity, I quote Section 167 of MV Act, 1988., 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 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."
12. On going through the aforesaid provision, it makes clear that an employee who suffers bodily injury or death whereunder it gives rise to a claim for compensation, then under such circumstances, he can file a petition either under the Workmen's 13 Compensation Act, 1923 or he can also proceed under the MV Act. The only restriction which has been imposed under the aforesaid Section is once the claimants exercise the action and an award is passed either of the Acts, it is not open to the claimants to avail the remedy under the other Act. When admittedly, the claimants have made a claim against the employer and the insurer by filing a petition before the Tribunal, then in that way it can be said that the they have opted to be compensated under the MV Act and in that event the MV Act operates and the Tribunal has to assess the compensation as per the MV Act. This proposition of law has been laid by the Hon'ble Apex Court in the case of Oriental Insurance Co.Ltd., Vs. Smt. Rajkumari & others (cited supra). Keeping in view the aforesaid facts and circumstances, the contention raised by the learned counsel for the appellant-Insurance Company 14 does not have any force and the same is hereby rejected.
13. The second contention of the learned counsel for the appellant-Insurance Company is that the policy which has been issued by them is only liability policy or an act policy which does not cover the risk of the Cleaner, who has travelled in the luxury bus. Though in the objections the Insurance Company has contended that the risk of the Cleaner has not been covered and the policy is an act policy, in order to substantiate the said fact, neither they have led any evidence nor proved any documents except producing the policy at Ex.R1. If they take up a specific defence to avoid the liability, then under such circumstances, their liability can be restricted only on proof of such contention taken by them. When no such evidence has been led, the said contention has remained as a contention without there being any proof of the same. 15
14. Be that as it may, the Hon'ble Apex Court has widened the scope of Section 173(1) of the Act regarding the liability and in an unequivocal terms it has held that the Insurance Company shall pay beyond the limit of compensation prescribed under the Act or policy. If at all there is liability to the limited extent, the Insurance Company has to pay the amount to the claimant/s and then thereafter the said amount has to be realized from the owner of the vehicle in accordance with law. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Limited (cited supra), wherein at paragraphs-26 and 27, it has been observed as under:-
"26. In the instant matter, we have noted that the High Court although had granted liberty to the Insurance Company 16 to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent-Insurance Company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent-Insurance Company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent-Insurance Company shall pay the balance amount also beyond Rs.32,091/- along with interest to the claimant expeditiously but not later than a period of six weeks from the date of receipt of this order.17
27. We are, thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmen's Compensation Act and not under the Motor Vehicles Act stands set aside and the liberty granted to the respondent- Insurance Company to realise the amount from the owner without a corresponding direction to the respondent-Insurance Company to pay the amount to the claimant/appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore. The appeal accordingly is allowed but we refrain from making any order as to costs."
15. Keeping in view the ratio laid down in the aforesaid decision and as the Insurance Company has failed to prove the said contention, the grounds urged in this behalf by the learned counsel for the appellant- 18 Insurance Company is not sustainable and as such the same is rejected.
16. In view of the aforesaid facts and circumstances, I am of the considered opinion that there are no good grounds made out by the appellant- Insurance Company so as to interfere with the impugned judgment and award.
Accordingly, the appeal is dismissed being devoid of merits.
The amount in deposit shall be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE *ck/-