Telangana High Court
The New India Assurance Co Ltd vs Byagari Lachamma And 2 Ors on 18 July, 2023
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
M.A.C.M.A.No.460 of 2008
JUDGMENT:
This appeal is preferred by the Insurance Company aggrieved by the award and decree dated 28-09-2007 in O.P.No.803 of 2004 on the file of the Motor Accident Claims Tribunal-cum-III Additional District and Sessions Judge (Fast Track Court) at Medak.
2. When the matter came up on 06-06-2023, it is submitted that Sri Ravi Shankar Jandhyala, learned counsel for the Insurance Company, is designated as senior counsel and as this appeal is of the year 2008, this Court has appointed Smt. Sathya Manjula, to represent on behalf of the appellant- Insurance Company. Heard learned counsel for the appellant Smt. Satya Manjula and learned counsel for respondent No.1-claimant and perused the record.
3. The brief facts are that on 18-02-2004, while the deceased B. Anil Kumar was driving an auto bearing No.AP-23-V-532 along with one C. Bikshapati from Jogipet to Sangareddy and when it reached near Chowtkur village at about 4.00 PM., a lorry bearing No.AP-28-T-6619 came in opposite direction at high speed and in a rash and negligent manner and dashed against the auto, due to which said Bikshapati died on the spot and B. Anil Kumar has received grievous injuries on his head and right hand and immediately, the injured was shifted to Gandhi Hospital, where he succumbed to the injuries on 28-04-2004. The mother of the deceased filed claim petition claiming compensation of Rs.2,00,000/- for the death of the deceased in the accident. z 2 LK, J MA CMA.No.460 of 2008
4. Respondent-Insurance Company filed counter denying the manner of accident and the death of the deceased in the accident. It is stated that the claim is excessive.
5. The Tribunal, on issue No.1 held that the accident occurred due to rash and negligent driving of the driver of lorry. When it comes to issue No.2, the Tribunal discussed that to award compensation, the claimant has to prove that respondent No.3, who is the wife of the deceased, as legal heir of the deceased and further observed that it is an admitted fact that the wife of deceased, who is petitioner in W.C.No.184 of 2004 on the file of the Assistant Labour Commissioner-III Hyderabad and petitioner in O.P.No.365 of 2004 on the file of II Additional District Judge, Rangareddy, has filed two claims and she claimed compensation under the Workmen's Compensation Act against owner and insurer of auto as deceased was working as driver of the auto. The Tribunal further discussed the judgment of the High Court of Andhra Pradesh in State of A.P. and another vs. Smt. K. Pushpalatha and others1 and observed that this Court has categorically enunciated the law that whatever exgratia payment on humanitarian ground received by the legal heirs of deceased and whatever the group insurance or provident fund received by the legal heirs of deceased they are entitled for compensation under Motor Vehicles Act and considering the same, the Tribunal has granted compensation of Rs.4,50,000/- with interest at 7.5% per annum from the date of petition till realization with proportionate costs.
1 2006(5) ALT 789 3 LK, J MA CMA.No.460 of 2008
6. Learned counsel for the appellant submits that for the very same accident, the Insurance Company is liable to pay compensation under the Workmen's Compensation Act as it is an admitted fact that the wife has claimed the amount by filing a petition under the Workmen's Compensation Act. She submits that as the mother of the deceased has preferred this petition under the Motor Vehicles Act seeking compensation, the Insurance Company has not paid compensation twice because of the same accident. She submits that in view of the bar under Section 167 of the Motor Vehicles Act, a person is entitled to claim compensation either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both the Acts. Learned counsel has relied on the judgment of the Apex Court in National Insurance Company Limited vs. Mastan and another2 and submits that as per Section 167 of the Motor Vehicles Act, 1988, a claimant having opted 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 and it was also observed by the Apex Court that 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. In the said case, the 2 (2006)2 SCC 641 4 LK, J MA CMA.No.460 of 2008 claimant has not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under the Workmen's Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen's Compensation Act by Section 167 of the Motor Vehicles Act and the claimant is not entitled to do so.
Learned counsel appellant-Insurance Company further submits that when the wife has claimed compensation and the same was granted, no share was given to the mother of the deceased. She relied on the judgment of the Kerala High Court in Commissioner for Workmen's Compensation3, wherein it was held that the claimant has to choose either of the remedies. She has also relied upon the judgment of the Kerala High Court in United India Insurance Company Limited vs. Jayaprakash; Biju M S, Sunil V. Baby, Managing Director State Express Transport Corporation Limited, Perumal v. Thiruvalluvar Transport Corporation Limited4, wherein it was similar ratio was laid down in the said judgment. Learned counsel has also relied upon the judgment of the Madras High Court in R. Geethabanu and others V. Government of Tamil Nadu, Commercial Tax Officer (Administration)5.
7. Learned counsel for the respondent-claimant has relied upon the judgment of the Gauhati High Court in M/s.New India Assurance Company 3 2010(2) KLT 822 4 2015 (1) KerLT 211 5 2022(2) LW 576 5 LK, J MA CMA.No.460 of 2008 Limited vs. Rina Mech and others6 wherein it was held that Section 167 of the Motor Vehicles Act, 1988, will not apply. The Court has observed that Section 167 of the Motor Vehicles Act gives an option to a party to elect the Forum in which a claim arising out of use of a motor vehicle would be made. This statutory principle is to ensure that there should not be two claims against the same parties i.e., owner of the vehicle or its insurer. The underlying object of the said Section, as held in a number of judicial pronouncements is to avoid double jeopardy to the owner of the vehicle or its insurer. Thus the test, therefore would hinge upon the fact against whom the claim is made. If in a given case, like the instant one, the claim in the WC Court has got nothing to do with the owner of the vehicle or the Insurance Company, in the opinion of this Court, the absolute bar of Section 167 would not come in and accordingly held that they can maintain an application under Section 167 of the Motor Vehicles Act.
8. The judgment of Gauhati High Court will not apply to the facts of the present case as the Insurance Company is also a party and it paid the compensation. As per the Workmen's Compensation Act, the insurer and the owner are jointly and severally liable to pay compensation. In view of the same, the judgment cannot be applicable to the case on hand.
9. Learned counsel for respondent-claimant has also relied on the judgment of the Karnataka High Court in National Insurance Company Limited vs. Vijayalaxmi and others 7 wherein it was observed that the 6 2019(2) GauLT 361 7 2017 ACJ 2129 6 LK, J MA CMA.No.460 of 2008 contention of the claimants is that immediately on the death of the deceased, they have filed a claim petition under the Workmen's Compensation Act with regard to the Group Insurance Policy taken by the employer for employees working at work site by paying separate premium to the Insurance Company. Hence, the Court held that the claimants are entitled to claim both under the Group Insurance Policy if separate premium was paid to the Insurance Company and also under the Motor Vehicles Act for a third party claim. Even, this judgment also does not apply to the facts of this case.
10. Before adverting to the respective arguments on behalf of the parties, it is appropriate to look at Section 167 of the Motor Vehicles Act. A bare perusal of Section 167 of the Motor Vehicles Act makes it clear that the claimant has an option either to make an application under the Workmen's Compensation Act or under Section 166 of the Motor Vehicles Act. In this case, the wife of the deceased has made an application under the Workmen's Compensation Act and there is no dispute about the fact that she has received the claim. Under the Workmen's Compensation Act, the Presiding Officer has to make an enquiry about who are the family members and after such enquiry, whether a notice was given or not or whether the mother of the deceased has questioned the said proceedings before the Workmen's Compensation Forum. The fact remains that the Insurance Company, who has paid the entire amount to the party under the Workmen's Compensation Act, cannot be compelled to pay the amount under the Motor Vehicles Act on the ground that the mother of the deceased has not received the amount.
7 LK, J MA CMA.No.460 of 2008
11. In this case, compensation that was granted by the Tribunal is Rs.4,50,000/-. The Insurance Company, at the time of admission of the appeal, has paid the amounts and certain amounts must have been withdrawn by the claimants. After these many years and at this point of time, this Court cannot direct the Insurance Company to recover the said amounts.
12. Accordingly, the appeal is allowed and the Insurance Company shall not recover the amounts, which were already withdrawn by the claimants. No order as to costs.
13. Miscellaneous petitions, if any pending in this appeal, shall stand closed.
____________________________ SMT LALITHA KANNEGANTI, J 18thJuly,2023.
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