Andhra HC (Pre-Telangana)
New India Assurance Co. Ltd. And Anr. vs V. Raghurami Reddy Alias Raghu And Ors. on 29 April, 1993
Equivalent citations: 1994ACJ614
JUDGMENT G. Radhakrishna Rao, J.
1. The claimant, who is the driver of the lorry bearing No. ATS 1926, met with an accident on 29.5.1988 and sustained injuries. According to the petitioner, the tourist bus bearing No. ADQ 8191 came opposite to his vehicle driven in a rash and negligent manner without blowing horn at about 12.00 midnight and hit on the front side of his lorry resulting in the accident. The petitioner-claimant has filed O.P. No. 228 of 1988 on the file of the Motor Accidents Claims Tribunal, Tirupati, claiming a total compensation of Rs. 3,42,500/-. After considering the entire evidence, both oral and documentary, adduced by both the parties and taking into account the nature of injuries sustained by the petitioner, the Tribunal awarded a total compensation of Rs. 1,98,130/- against all the respondents including both the insurance companies, i.e., New India Assurance Co. Ltd. (respondent No. 2) with which the tourist bus ADQ 8191 was insured and United India Insurance Co. Ltd. (respondent No. 4) with which the lorry ATS 1926 was insured. Having been aggrieved by the award of compensation both the insurance companies have preferred separate appeals, viz, New India Assurance Co. Ltd. has preferred C.M.A. No. 1313 of 1990 while the United India Insurance Co. Ltd. has preferred C.M.A. No. 1401 of 1990.
2. As both the C.M.As. arise out of one and the same judgment of the Tribunal, both the C.M.As. are clubbed together and are being disposed of by a common judgment.
3. It is contended by Mr. Kota Subba Rao, learned counsel appearing on behalf of the appellant, New India Assurance Co. Ltd., that under Section 95 (2) (b) (i) of the Motor Vehicles Act the appellant, New India Assurance Co. Ltd. is liable only to the extent of Rs. 50,000/- but the Tribunal has wrongly taken the new Act into consideration which came into force subsequent to the accident. In support of his contention he has relied upon the following decisions in United India Insurance Co. Ltd. v. Alapati Venkata Subba Rao 1991 ACJ 206 (AP) and National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC). In this connection it is necessary to extract Section 95 (2) (b) (i) of the Motor Vehicles Act, 1939, which is in the following terms:
95. Requirements of policies and limits of liability:
(1) xxx xxx xxx (2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:
(a) xxx xxx xxx
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of employment,--
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
xxx xxx xxx"
From a plain reading of Section 95 (2) (b) (i), as extracted above, it is clear that the limit of Rs. 50,000/- payable in the event of the death is in respect of persons other than the passengers carried for hire or reward. Any person other than a passenger carried for hire or reward is entitled for compensation but the liability of the insurance company as per the statute is Rs. 50,000/-only and over and above that amount, the owner is liable to pay that amount. My above view has been amply fortified by the above-cited two decisions. So the appeal filed by the New India Assurance Co. Ltd. has to be allowed, restricting its liability to Rs. 50,000 only.
4. It is contended by Mr. S. Hanumaiah, learned counsel appearing for the appellant, United India Insurance Co. Ltd., that in view of the provisions contained in Section 110-AA of the Motor Vehicles Act and in view of the finding of the Tribunal that the accident had occurred due to the rash and negligent driving of the driver of the tourist bus, there should not be any liability on the appellant, United India Insurance Co. Ltd. He further contended that the claimant has no right to make a claim for compensation both under Workmen's Compensation Act and under the Motor Vehicles Act and that Section 110-A A gives him an option to claim compensation under either of those Acts but not under both. In other words, the contention of Mr. Hanumaiah is that since the claimant had opted to one forum out of the two forums available, i.e., by approaching the authority under the Workmen's Compensation Act, he has no right to file an application before the Motor Accidents Claims Tribunal. According to him, as the petitioner-claimant has already approached the authority under the Workmen's Compensation Act, he has no right to file the same and the Tribunal under the Motor Vehicles Act has no jurisdiction to entertain the claim.
5. It must be remembered that generally the parties will approach the authority under the Workmen's Compensation Act as proof of negligence is not mandatory whereas under Motor Vehicles Act proof of rashness and negligence in awarding the compensation is necessary. At certain times the claimants were in a confused state to decide about the forum in the case of collision of the vehicles. In the case of collision between the two vehicles, it has to be seen on the material evidence whether there is composite negligence or whether there is negligence on the part of the driver of the one vehicle or the other. It is a mixed question of fact or a disputed question of fact. So, in the case of collision between the two vehicles, the fact that under Section 110-AA of the Motor Vehicles Act the party, who elected the forum under Workmen's Compensation Act, cannot elect the other forum under Section 110-A of the Motor Vehicles Act is not correct. There is no prohibition under Section 110-A of the Motor Vehicles Act for a driver of the vehicle who received injuries to claim compensation against the opposite vehicle which was involved in the accident, under the Workmen's Compensation Act. The remedy of the driver of the vehicle who received injuries on account of the rashness and negligence of the driver of the other vehicle can only be decided by the Tribunal under Motor Vehicles Act. In the case of collision between the two vehicles, one party, who is a driver or worker connected with that lorry, has got a remedy to claim compensation from the authority under the Workmen's Compensation Act and he cannot file a claim petition under the Workmen's Compensation Act against the owner of the other vehicle. When the driver or worker who is involved in the accident feels that there is composite negligence or that there is negligence on the part of the driver of the opposite vehicle, he can approach the Tribunal under the Motor Vehicles Act as the said Tribunal alone is the competent authority to decide whether there is composite negligence or whether there is negligence on part of the driver of the other vehicle, after appreciating the evidence adduced by both the parties. In such a situation it is the duty of the Tribunal to find out the rashness or negligence and fix the liability. While fixing the liability on the two insurance companies with which the vehicles were insured, the Tribunal has to bear in mind the statutory limit that has been fixed under the Workmen's Compensation Act. Where an employee of the vehicle, driver or cleaner connected with the vehicle, who received injuries or was involved in the accident, has got a right to approach the authority under the Workmen's Compensation Act and where he approached the authority under the Workmen's Compensation Act in the case of collision between the two vehicles and where the same party has also approached the Tribunal by impleading the owners and the insurance companies of both the vehicles, the Motor Accidents Claims Tribunal has got jurisdiction to fix the liability as per the statute and in the event the liability has to be fixed on the insurance company with reference to the vehicle he was working on, it will be only to the extent of the payment to be made under the Workmen's Compensation Act. From the above discussion, it follows that where one vehicle alone has been involved in an accident and an employee, say, the driver or cleaner or other employees connected with that vehicle, received injuries or died, he or his LRs. have got a right under Section 110-AA of the Motor Vehicles Act to elect a forum either under Section 110-A of the Motor Vehicles Act or under the Workmen's Compensation Act and if the party elects one forum, he is not entitled to approach the other forum and that the other forum has no jurisdiction. But in the case of collision between two vehicles, the driver or other workers or LRs. have got a right to elect the forum under the Workmen's Compensation Act and the Claims Tribunal under the Motor Vehicles Act. It is not mandatory to prove the negligence in a claim made under the Workmen's Compensation Act. If a party who is involved in the accident on account of collision between the two vehicles has filed an application under the Workmen's Compensation Act, he can as well file an application before the Motor Accidents Claims Tribunal by impleading the owners and the insurance companies of the two vehicles and in such a situation the amount of liability that has to be fixed on the insurance company shall not exceed the amount fixed under the Workmen's Compensation Act and the owner is liable for the amount fixed over and above the amount granted or to be granted under Workmen's Compensation Act. The Motor Accidents Claims Tribunal is directed to make an enquiry with regard to the amount that is payable by the other insurance company as per the table and fix the amount payable basing on the policy and the remaining amount, if any, shall be payable by the owner of the bus. The pendency of an application in a case of collision under the Workmen's Compensation Act is not a bar as it is not specifically excluded by the language employed in Section 110-A of the Motor Vehicles Act. Where an application has been filed under the Workmen's Compensation Act and where it has been determined and where the Motor Accidents Claims Tribunal also has entertained the application in the case of composite negligence, the liability of the insurance company should be restricted to the extent of the amount quantified as per the table under the Workmen's Compensation Act and the remaining amount, if any, has to be paid by the owner of the tourist bus. Under these circumstances the contention that the Motor Accidents Claims Tribunal has no jurisdiction and no power to quantify the amount has no basis.
6. C.M.A. No. 1313 of 1990 is, therefore, allowed. C.M.A. No. 1401 of 1990 is also allowed and the matter is remanded to the Tribunal to find out the amount payable under the Workmen's Compensation Act and to fix the liability on the insurance company. No costs.