Andhra HC (Pre-Telangana)
Adhikarala Jagadeeswara Rao vs Gopala Krishna Transport And Ors. on 7 July, 2004
Equivalent citations: 2005(1)ALD111, 2005 A I H C 471, (2005) 1 ANDHLD 111
JUDGMENT B.S.A. Swamy, J.
1. This appeal arises out of O.P. No. 718 of 1988 on the file of Motor Accidents Claims Tribunal, Vizianagaram.
2. This appeal is filed by the claimant having not satisfied with the compensation awarded by the Tribunal. His case was that he was working as a driver on a passenger bus bearing No. AP 35 T 3337, which was given on hire to A.P.S.R.T.C. On 21.6.1997 while the bus was going with passengers at about 6.00 a.m., a lorry bearing No. AP 31 T 7074 came in the opposite direction at a high speed in a rash and negligent manner and hit the bus near Dwarapudi Junction. As a result of the accident, the claimant (i.e.,) driver of the bus under hire to A.P.S.R.T.C. and the passengers travelling in his bus received injuries. As far as the claimant is concerned, he received fracture of femur on the right thigh and other simple injuries. Hence, he filed M.V.CP.No. 718 of 1998 claiming compensation of Rupees two lakhs by impleading the owner of the lorry, its insurer, owner of the bus and the insurer of the bus. The Tribunal having held that on the basis of the evidence available on record, that the accident has taken place due to rash and negligent driving of the lorry by its driver, who died in the same accident, held that the Respondents 3 and 4 (i.e.,) owner of the bus and its insurer are not liable to pay compensation to the claimant herein, since the claimant was not at fault and fastened the liability on the owner of the lorry and its insurer i.e., Respondents 1 and 2 in the claim petition.
3. To prove his case, the claimant examined himself as P.W.I and marked documents Exs. Al to A21. While Ex. Al is the copy of the FIR, Ex.A2 is the wound certificate, Ex.A3 is the copy of M.V.I report, Ex.A4 is the salary certificate of P.W. 1 and Ex.A5 is the disability certificate issued by the District Medical Board, Vizianagaram and as per that certificate he received 20% disability. Without reference to the salary certificate-Ex.A4 filed before the Tribunal, a compensation of Rs. 2,000/- for each of the three simple injuries, Rs. 12,500/- for the fracture, Rs. 6,408-73 Ps. towards medical expenses and Rs. 20,000/- for permanent disability was awarded by the Tribunal. Thus, the total compensation amount payable to the claimant was fixed at Rs. 44,408-73 Ps, which was rounded up to Rs. 44,409/- and the amount is recoverable with 12% interest from the date of filing of the petition, till the date of realisation from Respondents 1 and 2 i.e., the owner of the lorry and its insurer and absolved the owner of the bus and its insurer, since the driver of the bus was not at fault in the accident that occurred. In the evidence, the claimant stated that he was removed from service by the 3rd respondent because of the shortening of the leg and did not pay him any compensation for removing him from job.
4. Before going into the merits of the case, Mr. Kota Subba Rao, Counsel appearing for the National Insurance Company Limited i.e., insurer of the lorry raised a contention that as the claimant received injuries in the course of his employment and the liability of the employer under Workmen's Compensation Act to pay compensation to the employee who met with death or bodily injury is retained intact under proviso to Section 147(1)(b) of the Act, any compensation payable to the claimant for the injuries sustained by him in the accident is to be apportioned between the insurer of the vehicle which was hit by the other vehicle driven in a rash and negligent manner by its driver.
5. The issue raised is an interesting one and is having far reaching consequences. Mr. N.V. Jagannadh, Counsel appearing for the United India Insurance Company Limited, with which the bus was insured, resisted the plea on various grounds. During the course of hearing apart from this issue certain grey areas are left open and on some issues the Courts expressed divergent views, at times without noticing the legal aspects of the issue involved and the judgments wherein a contrary view is expressed. Hence, for a comprehensive pronouncement on these issues, this Court directed all the Counsel appearing for the Insurance Companies, claimants and the owners of the vehicle to address arguments on the issues framed hereunder for consideration.
(I) Without filing an appeal whether the respondents can get the finding of the Tribunal displaced in an appeal filed by the claimant under Order 41, Rule 33;
(II) In an appeal filed by the claimant whether the Insurance Company is prohibited from canvassing the correctness of the award?
(III) Whether the Insurance Company can contest the claim on grounds other than the grounds specified under Section 149(2) of the M.V. Act?
(IV) Principles for fixing the compensation under Motor Vehicles Act and Workmen's Compensation Act are altogether different, whether the Tribunal created under M.V. Act can entertain any claim by a driver of the vehicle against his employer for awarding compensation under Workmen's Compensation Act;
(V) Whether a driver is responsible for causing the accident can file a claim petition under the provisions of M.V. Act?
(VI) Whether the benefits received under the provisions of any other Acts are to be deducted from the compensation payable under the provisions of M.V. Act?
(VII) Whether the compensation payable under the provisions of M.V. Act are apportionable between the insurers of the vehicles involved in the accident?
6. Mr. N. V. Jagannadh, Counsel appearing for the Respondent No. 4 contends that in this case the 2nd respondent did not even file appeal against the award and the finding recorded by the Tribunal that 3rd and 4th respondents are liable to pay compensation became final. Hence the 3rd respondent cannot be fastened with liability of, paying compensation and as such the 2nd respondent cannot be permitted to raise this issue in this appeal.
7. On the other hand, Mr. K, Subba Rao contends that he is not questioning the quantum of compensation awarded by the Tribunal and he is only agitating against the action of the Tribunal in not apportioning the compensation awarded in this case. Since the Tribunal completely missed this aspect, the issue being purely legal, he can raise the same as the appeal is continuation of the original proceedings.
8. First I would like to deal with the objection of Mr. N.V. Jagannadh with regard to the admissibility of the contentions raised by Mr. K. Subba Rao. In support of his contention Mr. Jagannadh cited several judgments.
Issue Nos. I and II
9. Under Section 169(2) of the M.V. Act, the Claims Tribunal is vested with all the powers of a Civil Court in deciding the claim petitions. In fact, a Division Bench of this Court in APSRTC rep. by its Divisional Manager, Ongole v. Shaik Aneela Begum, (DB), held that the Tribunal under the M. V. Act came in the place of a Civil Court by virtue of Section 110-F of the M.V. Act (old) corresponding to Section 175 of the New Act, 1988 and where a Claims Tribunal has been constituted for an area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon, by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court, since the provisions of C.P.C. are applicable mutatis mutandis to the claims arising out of M.V. Act."
10. Order 41 deals with appeals from original decrees and under Rule 33 the Appellate Court is having power to pass any decree and make any order as the case may require, and this power can be exercised by the Court even in cases, where appeals are filed against a part of the decree and may be exercised in favour of all or any of the respondents or parties, where such respondents or parties filed any appeal or objection or not. For brevity and better understanding of the matter, it is useful extract Order-41, Rule-33, which is as follows:
"Order 41, Rule 33: The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."
11. From this it is seen that the appeal is not only continuation of the original proceedings, but the Appellate Court is given ample powers to pass a decree or an order in the ends of justice, where parties preferred an appeal or cross-objections or any such thing.
12. In support of his contentions Mr. Kota Subba Rao relied on a judgment of the Honourable Supreme Court reported in Delhi Electric Supply Undertaking v. Basanti Devi, 1999 (2) UJ 1536 (SC), wherein the learned Judges considered the scope and ambit of Order 41, Rule 33 in Paras 18 and 19 of the judgment, which reads as under:
"18. This provision was explained by this Court in Mahant Dhangir and another v. Madan Mohan and others, 1987 Supp. SCC 528, in the following words:
"The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co- respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The Appellate Court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the Appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities."
19. Conditions as laid in provision of Order 41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers."
Countering the arguments of Mr. Kota Subba Rao, Mr. N.V. Jagannadh cited the following judgments:
13. In Tummalla Atchaiah v. Venka Narasingarao, , the Honourable Supreme Court held that without a specific ground in the cross-objection and without payment of Court-fees on the said amount the party is not entitled to get any relief from the Court, under Order 41, Rule 33 C.P.C.
14. In Choudhary Sahu (dead) by LRs. v. State of Bihar, , the Honourable Supreme Court explained the object of the rule in Paras 12 and 13 as hereunder:
"12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from.
13. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself not the provisions of other laws, viz.,-the Law of Limitation or the Law of Court-fees etc."
15. In Oriental Insurance Co. Ltd. v. G. Seshamma, I (2003) ACC 160 (DB), wherein the Counsel for the claimant placing reliance on a decision reported in A.P.S.R.T.C. v. Salvaraj Vijaya, 1995 (2) ALD 423 = I (1996) ACC 133, under Order 41, Rule 33, contended that the claimants are entitled for more compensation without filing cross-objections by placing reliance on Order-41, Rule-33 C.P.C. Rejecting that contention a Division Bench of this Court held that "......We are not in agreement with the view expressed by the learned Single Judge in the above ruling. As a matter of fact, though the Court has all powers to pass any decree or to make any order which ought to have been passed and made by the original Court but this can only be done if the claimants filed cross-obiections and not otherwise."
16. In T. Veerendra Pai v. Karnataka State Road Transport Corpn., 1999 ACJ 56, Karnataka High Court held that out of two claims arising out of the same accident, only one claimant filed appeal for enhancement of the compensation awarded by the Tribunal, the Corporation cannot file cross-objections questioning the finding of the rash and negligent driving, since the award passed in the other claim covering the issue of rash and negligent driving has become final.
17. In Superintending Engineer v. B. Subba Reddy, , the Honourable Supreme Court explained the nature and scope of cross-objections under Order 41, Rule-22. After reviewing the case law on the subject, the Supreme Court held in Para 24 as follows:
"24. From the examination of these judgments and the provisions of Section 41 of the Act and Order 41, Rule 22 of the Code, in our view, following principles emerge :
(1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred.
(2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court-fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross- objection.
(4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.
(5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.
(6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.
18. From the above, it is seen that the judgment of the Honourable Supreme Court in Delhi Electric Supply Undertaking's case (supra) is more reasoned order than other two judgments referred supra i.e., Tummalla Atchaiah's case (supra) and Choudhary Sahu (dead) by LRs. 's case (supra) which are cryptic and this Court has taken the view that unless cross-objections are filed, the Court cannot exercise the powers under Order 41, Rule 33 CPC.
19. While I am not seriously disputing the fact that if no appeal is filed, the order of the Tribunal to that extent attained finality and it cannot be reopened in the appeal by the other party. Filing cross- objections and payment of Court fee are more procedural, more so, in the case of Motor Vehicles Act, since the Court fee payable is fixed at Rs. 10/- a nominal one. Since this issue raised in the appeal, being first of its kind on which no Court in the country applied its mind and this issue is having a far-reaching consequences, I granted leave orally and permitted the Counsel to address arguments on the issue raised by him. Subsequently, a formal application was also filed seeking leave of the Court. Accordingly, these two objections raised by Sri N. V. Jagannadh are rejected.
Issue No.III
20. Again Mr. N.V. Jagannadh and other Counsel appearing in the case strenuously contended that the Insurance Company can contest the claim only on the grounds specified in Section 149(2) of M.V. Act, but not otherwise, unless the Company obtained leave of the Court for the reasons to be recorded in writing. To put it the other way, if the Insurance Company wants to contest the claim on any ground other than the grounds mentioned in Section 149(2) of the Act, the leave of the Court in writing duly recording the reasons is necessary under Section 170 of M.V. Act.
21. In Sadhana Lodh v. National Insurance Co. Ltd., 2003 (3) ALD 63 (SC), 2003 (2) ALT 38 (SC). Their Lordships of the Supreme Court, considering the issue whether grounds of challenge can be enlarged other than the grounds mentioned in Section 149(2) of M.V. Act by filing writ petition under Article 226 or 227 of the Constitution of India and held in Paras 2, 3 and 4 as follows:
"2. It is not disputed that under Section 173 of the Act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal.
3. However, learned Counsel for the respondent argued that since an insurer has limited grounds available under Section 173 of the Act, it is open to an insurer to file a petition under Article 226/227 of the Constitution."
4. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (See National Insurance Co. Ltd. v. Nicolletta Rohtagi, ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in. such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a Trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution."
22. From this it is seen that in the event that the insured does not contest the claim, it is open to the insurer to seek permission of the Tribunal and contest the claim available to the insured or to a person against whom the claim has been made. The grounds on which an insurer can file appeal are limited under Section 149(2) of the Act and the insurance company cannot be permitted to file a petition either under Article 226 or 227 of the Constitution for enlargement of grounds of attack.
23. A learned single Judge of Patna High Court in a case reported in Oriental Insurance Co. Ltd. v. Suresh Kumar, 2003 ACJ 1170, held that an appeal by the Insurance Company is maintainable and it can file an appeal challenging the principles applied by the Tribunal in calculating the amount of compensation, but it is not entitled to challenge the compensation fixed.
24. In United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel, 2003 ACJ 2107, the Supreme Court held that the Tribunal cannot grant leave by a cryptic order "granted as prayed for". The Tribunal was bound to record reasons while granting permission to the Insurance Company to contest the claim on grounds beyond statutory defences. Their Lordships further held that the Insurance Company could be legitimately considered to be "Person aggrieved" within the meaning of Section 173 of the Act and it shall not suffer injustice for the failure of the Tribunal to record reasons.
25. In Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801, the Honourable Supreme Court held that an appeal filed by the Insurance Company under Section 173 of the M.V. Act without obtaining leave of the Tribunal as required under Section 170 of the M.V. Act is not maintainable in law.
26. In Shankarayya v. United India Insurance Co. Ltd., 1998 (6) ALD (SCSN) 27 = I (1999) ACC 497 (SC), the Honourable Supreme Court commenting on Section 170 of the Act observed in Para 5 as follows:
"5. It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined Respondent 1, Insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance "Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, Respondent 1, Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal."
27. A Full Bench of the Supreme Court considered the issue elaborately in National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 (6) ALD 1 (SC), III (2002) ACC 292 (SC) and in Paras 24, 27 and 31 held as follows:
"24. We have earlier noticed that motor vehicle accident claim is a tortuous claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.
27. We have noticed the legislative development in regard to third party rights in England and found that the object of those legislations was to protect the interest of third party rights. The 1939 Act as well as 1988 Act both were enacted on pattern of English statute with the object to relieve the distress and miseries of victims of accidents and reduce the profitability of the insurer in regard to occupational hazard undertaken by them by way of business activities and not to promote business interests of Insurance Companies even though they may be Nationalised Companies.
31. For the aforesaid reasons, our answer to the question is that even if no appeal preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle."
28. The next portion of the judgment deals with a different situation i.e., the role of insurer in case where the claimant and the insured acting hand in glove and thereby an award was obtained by playing fraud, the Honourable Supreme Court held in Paras 29 and 30 as follows:
"29. It was then urged that if there is a collusion between the claimants and the insured or the insured does not contest the claim and the Tribunal does not implead the Insurance Company to contest the claim on grounds available to the insured or the persons against whom claim has been made, or in such a situation when the insurer files an application for permission to contest the claim on merit and the same is rejected or where claimant has obtained an award by playing fraud, in such cases the insurer has a right of appeal to contest the award on merits and the appeal would be maintainable.
30. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, an Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the Insurance Company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the" insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award."
29. Whatever may be said in the entire judgment, these two paras of the judgment made it very clear that when compensation is obtained by fraud by the claimant, since the entire proceedings are vitiated and fraud unravels everything, it is open to the insurer to apply to the Tribunal for rectification of the award?
30. For the foregoing discussion, it is evident that normally the Insurance Company cannot contest the claim on the grounds other than the grounds mentioned in Section 149(2) of M.V. Act without obtaining leave of the Court in writing. But if the claimant obtained an award by playing fraud on the Court in collusion with the insured, it is open to insurer to apply to the Tribunal for rectification of the award even on merits. In this case the issue raised by the Counsel for the respondent is that whether the compensation awarded by the Tribunal should be apportioned between the insurance company with which the vehicle dashed the other vehicle due to rash and negligent driving of its driver and the insurance company with which the driver of the other vehicle received the injuries, since the employer is under an obligation to pay compensation to his employee under Workmen's Compensation Act apart from other question whether the Tribunal under M.V. Act is empowered to entertain a claim under Workmen's Compensation Act also in view of the conflicting decisions on the issue. After giving my considered thought, to obviate any future difficulty, I directed the Insurance Company to seek leave of the Court in writing and granted leave to the Insurance Company to raise these issues. Hence, the objection raised by Mr. N.V. Jagannadh holds no water and it is accordingly rejected.
Issue No. IV :
31. To answer this question we have to look at the provisions of the Motor Vehicles Act. Chapter XI of the Motor Vehicles Act deals with Insurance of Motor Vehicles against third party risks. Section 145 deals with the definitions. The Legislature made insurance of the vehicles compulsory to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has no enough means to meet his liability. Section 146(1) deals with the class of vehicles that are required to take Insurance policy compulsorily and Section 146(2) deals with the class of vehicles that are exempted from obtaining an Insurance Policy. Section 147(1) deals with the issuance of Insurance policy and the persons or classes of persons covered under the policy to the extent specified. Section 147(l)(b)(i) covers the liability of the insured, which may be incurred by him in respect of death or bodily injury to any person including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of vehicle in a public place (ii) any liability to any passenger of public service vehicle caused by or arising out of the use of the vehicle in a public place. As per the 1st proviso to Section 147(4)(b) of the Act, the liability of the insurer under the policy issued under Section 147 of M.V. Act no policy is required in respect of death or bodily injury sustained by categories of employees mentioned therein in the course of their employment under Workmen's Compensation Act (a) the driver of the vehicle (b) if it is a public service vehicle the Conductor and Examiner in examining the tickets on the vehicle (c) if it is a goods carriage being carried in the vehicle or to cover any party on the contracted liability under second proviso. Under sub-section (2) the Insurance Company shall cover any liability incurred in respect of any accident (b) in respect of damage to any property of a third party up to Rs. 6000/- Under sub-clause (5) the insurer is liable to indemnify the person or classes of persons specified in the policy in respect of any liability and this provision was given overriding effect over any other provision contained in any law for the time being in force. From this it is seen that under the policy issued under Section 147 of Motor Vehicles Act that the employees like drivers, cleaners, ticket examiners working on the vehicles are entitled to receive compensation on account of accident arising out of the use of a motor vehicle in a public place both under the provisions of M.V. Act as well as the Workmen's Compensation Act if the accident has taken place during the course of employment without obtaining a separate policy for the coverage under Workmen's Compensation Act. Under Section 149 of the Motor Vehicles Act, the victims of the motor vehicles are to be fully compensated and fully protected by the owner of the vehicle since he is having vicarious liability to compensate the victim as well as his own employee under Workmen's Compensation Act, when his vehicle is covered by the Insurance Policy as contemplated under Section 146 of the Act a duty is cast on the insurer issuing policy to satisfy the decree to the extent of assured sum. Under Section 167 of the M.V. Act where the death of or bodily injury to, any person gives raise to a claim for compensation under the Motor Vehicles Act as well as 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. To put it aptly a person entitled to claim compensation under the provisions of the Motor Vehicles Act as well as Workmen's Compensation Act, 1923 is given option to file application seeking compensation either under the provisions of the M.V. Act or under Workmen's Compensation Act but not in both the forums.
32. The preponderant view of the Courts with regard to payment of compensation is that the liability of the owner of the vehicle to compensate the victim in road accident due to the negligent driving of his servant is based on law of Torts i.e., the owner is made liable to pay compensation to the victim of an accident due to negligence of his driver on the basis of vicarious liability. Before compensation could be awarded, it is necessary to prove that the servant was acting during the course of employment and that he was negligent.
33. Now the first question that falls for consideration of this Court would be if the claim is covered by Workmen's Compensation Act whether the claimant can approach the Tribunal under Motor Vehicles Act or the Commissioner under Workmen's Compensation Act.
34. On this aspect different views have been expressed by different Courts. In Oriental Insurance Company Limited, Warangal v. Thudi Mallamma, , the claimant's husband was engaged along with others as labourer on 7.4.1991 to load and unload bamboo sticks on a tractor. In their return journey the tractor was driven at high speed in a rash and negligent manner by the driver thereby the deceased fell down from the tractor and came under the wheels of the tractor. Thereafter the deceased succumbed to injuries in the Headquarters Hospital at Karimnagar. On a claim petition filed by his legal representatives, the Tribunal awarded compensation of Rs. 1,00,000/- The Insurance Company having filed the appeal contended that the claimants are not entitled to compensation under Motor Vehicles Act but are entitled to seek compensation from the forum prescribed under the Workmen's Compensation Act (for short the Act, 1923) against the Insurance Company, a learned Judge of this Court having held that the claimants are entitled to claim compensation as per the formula prescribed under the provisions of Workmen's Compensation Act restricted the compensation payable under that Act.
35. But in subsequent judgment in United India Insurance Company Limited v. Kore Laxmi , the same learned Judge held that the legal heirs of the driver who died in a road accident due to his own negligence cannot file a claim petition under Section 166 of the Motor Vehicles Act. For maintaining claim petition-under Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of actionable negligence on the part of his employee to make the owner vicariously liable to pay the compensation on the basis of strict liability, which is imposed by the statute itself. Otherwise, the owner of the vehicle is under no obligation to pay the compensation. The learned Judge further held that in an application filed under Section 166 of the Motor Vehicles Act, the Tribunal cannot determine the compensation payable to a workman or his legal representative in case of injury or death of a workman under Workmen's Compensation Act and the question has to be determined by the Commissioner under Workmen's Compensation Act. The learned Judge after referring to various decisions observed in Para 24 as follows:
24............"I am of the opinion that for laying a claim under the M.V. Act, it is necessary to plead and prove that the accident was the result of some actionable negligence of the third party. Without proving such actionable negligence on the part of the respondents, the claim petition for compensation under the M.V. Act is not maintainable........"
In fact the two conflicting decisions made me to probe into the matter thoroughly in the light of the provisions of Motor Vehicles Act and also the Workmen's Compensation Act.
36. In the cases where the Courts held that a petition claiming compensation under Workmen's Compensation Act, the Courts proceeded on the assumption that for an actionable claim under the Motor Vehicles Act it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle by its driver resulting in the accident and the owner of the vehicle is vicariously held responsible for the wrong done by his employee to a third party and the right to receive compensation by the third party can only be against the person who failed to perform his legal obligation. From the above it is seen that the liability to pay compensation by the owner of the vehicle or insurer is based on the provisions of the Motor Vehicles Act and the same is based on the law of torts based on negligence whereas the payment of compensation under Workmen's Compensation Act is statutorily imposed without pleading and proving negligence. Hence the Tribunal exercising powers under Motor Vehicles Act cannot award compensation under Workmen's Compensation Act. In fact in Minu B. Mehtaq v. Balkrishna Ramachandra Nayan, 1977 ACJ 118, their Lordships of the Supreme Court held in Para 28 as follows:
"28. This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate any one else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appear to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results."
But this view underwent radical changes. In Gujarat State Road Transport Corporation v. Ramanbhat Bhai, 1987 ACJ 561, their Lordships of the Supreme Court held as follows:
"Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicle accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, (1868) LR 3 HLO 330. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and ran" cases where the drivers of the motor vehicles who have caused the accidents are not known, are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicle accidents as a liability without fault."
37. To my mind, the charging-sections under Motor Vehicles Act did not speak of strict liability to plead and to prove negligence on the part of the driver of the vehicle involved in the accident. The Courts interpreted that the payment of compensation under Motor Vehicles Act is based on common law principle which is acceptable to our jurisprudence and held that it will be better to follow the principle in Rylands v. Fletcher, 1861-73 All ER 1, at least until any other new principle can be evolved or at least any other new principle which exercises can be evolved until Legislature provides it. Section 140 deals with liability to pay compensation in certain cases on the principle of no fault liability. The words used in this section is where death or permanent disablement of any person has resulted from an accident arising out of the use of motor vehicle or motor vehicles etc., the owner of the vehicle is liable to pay compensation in respect of death or disablement in accordance with that section without raising the plea of negligence. Under Section 146 of the M.V. Act a policy of insurance has to be obtained for the use of the vehicle in public place. Under Section 147(1) of the M.V. Act the Insurance Policy taken under Section 146 of the M.V. Act shall cover any liability including the policy to be taken under Section 146 of the M.V. Act and cover the liability of the insured arising out of the use of the vehicle in a public place for any third party or passenger or owner of the goods. As per Section 163-A of the M.V. Act introduced by amending Act 54 of 1994 compensation for no fault liability has to be paid on the basis of structured formula also used the word "due to accident arising out of the use of the motor vehicle". Under Section 165 of the Act, the Claims Tribunals are constituted by the State to adjudicate on the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Under Section 168 of the Act the claims Tribunal while determining the compensation payable to the victim shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. Their Lordships opined that the provisions of M.V. Act permit deduction of compensation paid under 'no fault liability' under Section 140 of the Act from the final amount awarded by the Tribunal and as such these two are resting on two different premises.
38. In D. Kaukshnuma Begum v. New India Assurance Company Limited, 2001 (1) ALD 95 (SC), 2001 (1) ACJ 428, their lordships of the Supreme Court in Para 19 observed as follows:
"19. No fault liability envisaged in Section 140 of the M.V. Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the M.V. Act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting two different premises. We are, therefore, of the opinion that even apart from Section 140 of the M.V. Act a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them."
From this it is seen, apart from a claim for no fault liability under Section 140 of the Act a victim in an accident, which occurred while using motor vehicle is entitled to get compensation from a Tribunal unless any one of the exceptions specified in Rylands 's case (supra), they are: (1) Consent of the plaintiff, i.e., volenti non fit injuria; (2) Common benefit, i.e., where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape; (3) Act of stranger, i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply; (4) Exercise of statutory authority i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise; (5) Act of God or vis major, i.e., circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility; (6) Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply; (7) Remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even according to the formulation the rule made by Blackburn, J. The defendant is answerable only for the damage " which is the natural" consequence of its escape.
39. From this, if a case does not fall in any of the exceptions the victim in an accident is entitled to get compensation from the Claims Tribunal. In fact in this judgment, their Lordships held that jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles in the following words:
"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action."
40. In this case the jeep involved in the accident was capsized while it was in motion. The cause of capsize was due to bursting of the front tyre of the jeep. In the process of capsizing the vehicle was hit against one Haji Mohammad Hanif who was walking on the road at that ill-fated moment and consequently that pedestrian was crushed and subsequently succumbed to the injuries sustained in that accident. The owner of the jeep disclaimed the liability by denying even the fact of the accident in which his jeep was involved. The Tribunal as well as the High Court held that whatever may be the circumstance the rashness and negligence of the jeep is not established. But at the same time, their Lordships held that the owner of the vehicle is liable for damages to a person who suffered on account of accident even if there is no negligence on the part of the owner or driver. From this it should be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles only. Negligence is only one of the species for the cause of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.
41. In Rita Devi's case (supra), the facts of this case are that Mr. Dasarath Singh a driver of an autorickshaw owned by Lalit Singh which was registered as a public vehicle used for hiring by passengers was hired by unknown passengers between 5 to 6 p.m., on 22.3.1995. Later it came to light that the autorickshaw was stolen and the dead body of Dasarath Singh was recovered by the police on the next day. One Dasarath Singh claiming to be a power of attorney holder along with appellants filed a petition under Section 163-A of the Motor Vehicles Act claiming damages for the death caused to the deceased Dasarath Singh during the course of his employment under Lalit Singh as the death was caused in an accident arising out of use of the vehicle. The Tribunal having held that the death of the driver was caused by an accident arising out of use of the vehicle held that the owner of the vehicle is liable to compensate the death of the driver in money value. On an appeal preferred by the Insurance Company the High Court held that there was no motor accident as contemplated under the Act and the award passed by the ' Tribunal was set aside. Their Lordships of the Supreme Court while considering the contention of the appellants that the deceased being an employee under Lalit Singh is entitled for compensation under Motor Vehicles Act and Workmen's Compensation Act, 1923. However, under Section 167 of the M.V. Act the heirs of the deceased are at liberty either to claim compensation under the Act or under Workmen's Compensation Act. The Tribunal was wholly justified in awarding compensation, held as in Paras 14 and 15 as follows:
"14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act" of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autorickshaw.
15. Learned Counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word 'death' and the legal interpretations relied upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act, the same will not be applicable while interpreting the word 'death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the autorickshaw. We are unable to accept this contention; advanced on behalf of the respondents. We do not see how the objects of the two Acts, namely the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts is to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours, we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also."
42. In New India Insurance Company Limited, Nagercoil, Kanyakumari District v. Rajamani, 2002 (2) An. WR 267 (Mad.), it was held that "if it is established that the accident occurred "in a public place" and arose out of the use of a motor vehicle, then Section 167 permits the choice of claiming compensation under either of the two Acts as per the decision of the Supreme Court in Smt. Reeta Devi's case (supra)."
Their Lordships relying on the Division Bench decision held:
"Public Place" for the purpose of Chapter 8 of the Motor Vehicles Act will cover all the places even those which are privately owned where public have access, whether free or controlled."
In this case the injured was engaged as a load man for transfer of crushed stones into the lorry from crushing unit. At the time of loading of crushed stones a wall standing in the quarry fell down resulting injury to the claimant.
43. Mr. K. Subba Rao, Counsel for Respondents 1 and 2 relied on the decision in Hellen C Rebello v. Maharastra State Road Transport Corporation, 1998 (6) ALD (SCSN) 1, 1999 ACJ 10, while considering the issue whether insurance amount has to be deducted from the compensation awarded for the accident, the Supreme Court held in Para 38 as follows:
"38. As we have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is beneficial legislation, the intention of the Legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of the 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92-A of 19/39 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is an addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the Legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation viz., benefit to the subject should be accepted. In the present case, two interpretations have been given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life Insurance amount should be accepted and the other set, which interpreted to deduct is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the Legislature under various provisions of the Motor Vehicles Act, 1939"
44. In The General Assurance Society Limited, Madras v. N.A. Mohammed Hussain, 1966 ACJ 203, the claimant travelled in a delivery van belonging to his employer and was injured. The learned Judge negatived the contention of the Insurance Company that the injured cannot be treated as a passenger in a vehicle and was not a third party and held that the Insurance Company was liable to pay compensation to the injured within the prescribed limits under the Act. This case was decided under Section 95 of the Old Act. Section 95 of the Act was considered in Para 7 of the judgment:
"7. This section has been introduced by the Amending Act 100 of 1956. The injured person can always get a remedy in the common law to claim compensation for tortuous liability. He has also got a further right to claim compensation under the Workmen's Compensation Act. In the instant case, when the injured man is employed under one who has insured his vehicle and when he sustains an injury in the course of an accident to the vehicle, though he has right to get compensation under the Workmen's Compensation Act, it is not necessary for him to go to the Workmen's Compensation Tribunal, when he has the right to claim compensation along with his employer under the Motor Vehicles Act. Though the employer has got a liability under the general law to pay compensation to the injured person, since the employer happens to be the insured as in this case, as per the provisions of the Motor Vehicles Act, the Insurance Company has to indemnify the employer in spite of the fact that there are provisions in the policy to exclude a liability of this claim. It has been specifically stated that under Section 95 of the Act, in order to comply with the requirements of Chapter relating to insurance of motor vehicles against third parties, the policy of insurance must be a policy which should comply with the requirements of the Act. Therefore, no useful purpose will be served by inserting in the policy that condition that they are not liable to pay compensation to the persons employed who would be entitled to get compensation under the Workmen's Compensation Act. In effect, if the employee is injured in an accident arising out of this employment under the employer, the insurance company is liable to pay compensation not only to the owner of the vehicle for the loss or damage, but also pay compensation to the injured person who will be entitled to get compensation under the Motor Vehicles Act. I am therefore of opinion that under the provisions of the Motor Vehicles Act, the Insurance Company is liable to pay compensation both to the insured and the injured of course, within the limited liability prescribed under the Act."
In this case the learned Judge took the view that the Insurance Company is liable to pay compensation under the provisions of the Workmen's Compensation Act even in a claim petition under Motor Vehicles Act.
45. In The Orissa Co-operative Insurance Society Limited v. Sarat Chandra Champati, 1975 ACJ 196, the workman-claimant while working as kalasi in a truck met with an accident on 30.8.1971 as a result of which his right leg has been amputated. The Insurance Company contended that it is not liable under the policy to pay compensation to the claimant under the provisions of Section 95(1) of the old Act. Rejecting the said contention, the learned Judge held in Para 5 as follows:
"............If a workman under the Workmen's Compensation Act was not covered by such a policy, there would, to my mind, have been no necessity of specifically referring to liability arising under the Workmen's Compensation Act in proviso (i) of sub- section (1) and clause (a) of sub-section (2) of Section 95 and in Section 110AA of the Motor Vehicles Act. I have no doubt in my mind that the "Act policy" really covers the liability arising in respect of the bodily injury caused to the claimant who was an employee of the truck owner at the time of accident.
My aforesaid view is supported by the decision in the case of Venkataraman v. Abdul Munsaf Sahib, 1971 ACJ 77. In that case the cleaner of a lorry died in an accident which took place on account of negligence of the driver. The cleaner was undoubtedly a workman and the liability to compensation arose under the Workmen's Compensation Act, and it was contended that the insurer was not required to meet this liability arising under the Workmen's Compensation Act. This contention was negatived. It was held that under Section 95 of the Motor Vehicles Act a statutory duty was cast upon the insurance company to indemnify the insured against any liability to pay compensation to his employee under the Workmen's Compensation Act, and the company could not contend that it was absolved of the liability to pay compensation merely because the claimants had initiated proceedings under the Motor Vehicles Act instead of the Workmen's Compensation Act."
46. In Lanka Sarmma v. Rajendra Singh, 1984 ACJ 198, wherein a workman was hired for loading and unloading stones into the truck to be delivered at the dam site. The truck over turned due to rash and negligent driving of the driver as a result the workman died. The Insurance Company contended that the insurance cover required to be taken under Section 95(1)(b)(i) of the Motor Vehicles Act cannot be spread to cover the liability arising out of an accident in the course of the use of motor vehicle in any place other than a public place. The Insurance Company contended under Section 95(l)(b)(i) of the Motor Vehicles Act which is to be found in Chapter VIII of that Act read thus:
"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."
Since the accident took place in a private place to which the general public is not admitted such a road cannot be called as a public place. The liability to pay insurance cannot be fastened on the Insurance Company under the Act with respect to the accident that occurred in such a private place. The Insurance Company in support of its contention relied on the decisions of Madras, Orissa and Gujarat High Courts. Justice P.A. Chowdary as he then was in Para 9 of the judgment held as follows:
"9. For the reasons which I have mentioned ' above, I am unable to agree with the above judgments of the Madras, Orissa and Gujarat High Courts. In my respectful opinion, these judgments did not take into account the legal possibility that workmen can be part of the public and that.... right of access to the place of their work can be gained by them not necessarily by dedication or by any Parliamentary Statute, but also by a private act of grant of an owner or an occupier of the place. In my opinion, the words in the definition Section 2(24) of the Act, "thoroughfare or not" point out to this meaning only. These judgments did not also consider the implications arising out of the reference to Workmen's Compensation Act, made by Section 95 of the Motor Vehicles Act. That would clearly indicate that claims for compensation made against the Insurance Companies by the dependents of the workmen killed or injured within the premises of a factory, cannot be defeated by the insurance companies on the ground that the general public have no right of access to such factory premises."
In the light of the above view the learned Judge increased the compensation payable as per Schedule IV of Workmen's Compensation Act. From this it is seen that the learned Judge approved the action of the claimant in filing the claim petition under Motor Vehicles Act. Sri N. V. Jagannath referred to the decision in Ramashray Singh v. New India Assurance Company Limited, , wherein proviso to Section 147(1)(b) was considered in Para 10 of the judgment, which is as follows:
"10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and "any passenger" in Clauses (i) and (ii) of sub-section (b) to Section 147(1) are of wide amplitude, is correct (See New India Assurance Company v. Satpal Singh and others, . However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured. In other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147(1) (b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless first, the liability of the insured arises under the Workmen's Compensation Act, 1923 and second, if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger". If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger."
47. From the above decision it is seen that in case of employees covered under proviso, the employer is not required to take a policy under Section 146 to cover the liability in respect of the death or injury arising out of and in the course of any employment.
48. In United India Insurance Company Limited v. P. Venkanna, 1987 ACJ 48, a lorry driven by the deceased driver hit the tree and turtled resulting in his death. His legal representatives has given notice to the owner of the vehicle under Workmen's Compensation Act and filed claim petition under the provisions of the Motor Vehicles Act. The learned Judge posed the question whether petition under Section 110-A is maintainable and answered the question as hereunder:
"2................."No doubt, if the claim is laid before the Commissioner for Workmen's Compensation and being pursued by operation of Section 110-AA, the legal representatives are precluded to pursue their remedy under the Act because they elected to pursue the remedy under Act 8 of 1923. When choice is given by the Act to the claimants and the remedy under the Act being more beneficial, it is being pursued by them. So it cannot be said that the Tribunal lacked jurisdiction to award compensation. Accordingly, I reject this contention and hold that the petition is maintainable."
49. In an unreported judgment in New India Assurance Company Limited v. V. Raghurami Reddy (AAO Nos. 1313 of 1990 and 1401 of 1990 dated 29.4.1993) Justice G.Radhakrishna Rao as he then was held that in case of collusion between the two vehicles the driver or other worker or their legal representatives has got a right to choose the Forum i.e., either under the Workmen's Compensation Act or under the Motor Vehicles Act but not under both the Fora. It is not mandatory to prove negligence in a claim under Workmen's Compensation Act if a party had involved in the accident of two vehicles. The L.Rs. of the deceased can file application before the Motor Accidents Claim Tribunal by impleading owners and the Insurance companies of the two vehicles and in such a situation the amount of liability has to be fixed on the Insurance company shall not exceed the amount fixed under the Workmen's Compensation Act. Accordingly, an award was passed directing the Insurance Company to pay the amount insured under the policy and the rest of the amount if any payable by the owner of the vehicle.
50. In Ved Prakasdh Garg v. Premi Devi, , this issue came up for consideration before the Honourable Supreme Court wherein it was held that "where an employee receives a personal injury in a motor accident arising out of and in the course of his employment while working on the motor vehicle of the employer, whether the insurance company, which has insured the employer-owner of the vehicle against third party accident claims under Motor Vehicles Act, 1988 hereinafter referred to as the M.V. Act and against claims for compensation arising out of proceedings under the Workmen's Compensation Act, 1923 hereinafter referred to as the Compensation Act in connection with such motor accidents, is liable to meet the awards of Workmen's Commissioner imposing penalty and interest against the insured employer under Section 4-A(3) of the Compensation Act."
51. The Learned Judges having noted the contention of the Counsel appearing for the Insurance Company held that "it may be mentioned at this stage that learned Counsel for the contesting respondent insurance companies made it clear before us that it is not their contention that the insurance companies which have insured the employers against such risks and claims are not liable to make good the principal amount of compensation as awarded by the Commissioner to the claimants and that the insurance companies under the contracts of insurance would remain liable to make good the said claims. But their only grievance is against the liability sought to be enforced against them for reimbursing the claims for additional compensation by way of penalty and interest as imposed on the insured employers under Section 4-A(3) of the Compensation Act."
52. Their Lordships having considered Sections 146(1) and 147 of the Motor Vehicles Act held that "Sub-clause (b) of Section 147(1) read with the proviso lays down a statutory scheme of compulsory coverage of the liability incurred by the employer vis-a-vis his employees when they sustain injuries by the use of motor vehicles during their employment and on account of the motor accidents arising out of and in the course of their employment. But the statutory coverage for such liability would be limited to the extent of liability of the insured employer arising under the Workmen's Compensation Act in respect of death or bodily injury to such employees......."
53. In New India Assurance Company Limited rep. by its Divisional Manager, Kurnool v. Thippamma, , this Court held that in case of death of labourer employed by the owner of the vehicle the liability of the Insurance company could be restricted to the terms of the policy agreement only where the claimants can approach the Commissioner either under Workmen's Compensation Act or the Tribunal constituted under the Motor Vehicles Act unless the Insurance company had recovered additional premium for covering high liability. As far as the liability of the owner of the vehicle is concerned it is complete and it will be to the extent of award/decree passed in that case.
54. To the same effect is the judgment of this Court in New India Assurance Company Limited v. Voika Marrubai, 2000 ACJ 647, whereunder the award of the compensation by the Tribunal was modified under the provisions of the Motor Vehicles Act, 1939 and restricted the liability of the Insurance Company to the amount payable under Workmen's Compensation Act under proviso to Section 95(1)(b)(ii) of the M.V. Act, 1979 which is corresponding to Section 147(1)(b)(ii) proviso of the Act.
55. In Y.R. Shanbhag v. Mohammed Gouse, 1991 ACJ 699, a Division Bench of Karnataka High Court held that the liability of the owner to compensate the victim in an accident caused due to negligent driving of his servant is based on Law of Torts.
56. This Court in United India Insuranced Company Limited's case (supra), a learned Judge of this Court held the death of the driver in an accident occurred due to driver's own negligence responsible for the accident cannot claim and is not entitled to any compensation under Section 166 of the M.VAct.
57. In Tamilnadu State Transport Corporation v. Natarajan, 2003 (4) ALD 59 (SC), 2003 ACJ 1002, the Supreme Court held that in case of contributory negligence on the part of the claimant as a driver of the Corporation bus, the Corporation as an employer of the injured held to be vicariously liable to the claimant himself since the Corporation was not at fault as the accident was caused due to contributory negligence of both the drivers of the private and Corporation Vehicles. Hence the Corporation could not be held liable under the provisions of the Motor Vehicles Act. At the same time, their Lordships noted the submission of the driver that since the Corporation has given compassionate appointment he decided not to obtain any compensation from his employer and as such he is justified in not filing a claim petition under the provisions of Workmen's Compensation Act against the employer.'
58. In Shivaji Dayanu Patil v. Smt. Vatschala Uttammore, , a petrol tanker as a result of collision with the truck turtled and was lying at a distance of 20 ft. from the road. Because of overturning, petrol in it leaked at about 7-15 a.m., an explosion took place in the petrol tanker resulting number of persons gathering near thereby sustained burn injuries and some of them succumbed to injuries. The legal representatives of the deceased persons and the injured persons field claim petitions under Motor Vehicles Act. The Insurance Company raised an objection with regard to the jurisdiction of Claims Tribunal to entertain such petitions. Their Lordships of the Supreme Court considering the words of expression "arise out of as used in Section 92(a) of the old Act having reviewed the case law on that aspect held in Para 36 as follows:
"36. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on slopping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker it cannot be necessarily inferred that there was no casual relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam. More was due to an accident arising out of the use of the motor vehicle viz., the petrol tanker No. MKL 7461."
59. In United India Insurance Company Limited, Nirmal v. Syed Anwar Ali, , a learned Single Judge of this Court, Justice B. Seshasayana Reddy, placing reliance on Section 147(l)(b) of M.V. Act held that the Insurance Company cannot disown its liability on the ground that the claimant is a second driver and held as follows:
"Sub-clause (b) of Section 147(1) read with the proviso lays down a statutory scheme of compulsory coverage of the liability incurred by the employer vis-a-vis his employee when they sustain injuries by the use of motor vehicles during their employment and on account of the motor accidents arising out of and in the course of their employment and on account of the motor accidents arising out of and in the course of their employment. But the statutory coverage for such liability would be limited to the extent of liability of the insured employer arising under the Workmen's Compensation Act in respect of death or bodily injury to such employees. As the motor accident resulted in fatal injuries to the employees who were either driving or being carried in the goods carriage as employees, whatever liability was incurred by the insured owners of goods vehicles in connection with proceedings arising out of the Compensation Act was covered by the statutory liability of the Insurance Company."
60. From the foregoing discussion, it is seen that the principle underlying the judgment wherein the Tribunal constituted under the Motor Vehicles Act cannot award compensation under Workmen's Compensation Act unless it is pleaded and proved that the accident 'has taken place due to rash and negligent driving of the vehicle by its driver, the liability of the Insurance Company to pay compensation does not arise has been watered down in the subsequent decisions and their Lordships of the Supreme Court in Rita Devi's case (supra) clearly held that under Section 167 of M.V. Act the Tribunal constituted under M.V. Act is fully competent to adjudicate the claims even under Workmen's Compensation Act.
As far as the employees covered by proviso to Section 147(l)(b) of the Act, the employer is not required to take a policy under Section 146 of the M.V. Act to cover the liability in respect of death or injury arising out of and in the course of any employment and while the liability of the insurer under the provisions of Workmen's Compensation Act is limited to the extent of coverage, the employer is liable to pay the rest' of the compensation awarded by the Tribunal. Further, we should not forget the fact that both M.V. Act and the Workmen's Compensation Act being beneficial enactments, the victims of the accident have to be rehabilitated at the earliest possible time. Hence, an employee due to whose fault the accident might have taken place might have approached the Motor Vehicles Claims Tribunal under Section 166 of the M.V. Act without knowing the legal position and on that ground, the Tribunal need not necessarily relegate him to the authority under the Workmen's Compensation Act.' It can itself award compensation under the provisions of Workmen's Compensation Act as long as he has not chosen the other Forum to claim compensation. In Helen C. Rebello's case (supra) the Supreme Court observed that while interpreting a beneficial legislation held that the view that subserves the object of the legislation should be accepted in the following terms.
"Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have been given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions which applied the principle of no deduction of the life insurance amount should be accepted and the other set which interperpreted to deduct, is to be rejected."
61. Hence, the judgment in United India Insurance Company Limited's case (supra) rendered without considering the case law on the other point of view cannot be considered as a good law in the light of the decisions of the Supreme Court and other superior Courts.
Issue No. V
62. The Insurance Policy obtained under Section 146 of the Act by the owner of the vehicle is not required to take a separate policy to cover his liability in case of death or bodily injury of his employee arising out of his employment under Workmen's Compensation Act for the class of employees referred to under the Workmen's Compensation Act. The employees for whom no policy is required to be taken are specified in the proviso to Section 147(l)(b) of the Act including the employee engaged in driving of the vehicle in the normal course. If an accident takes place due to rash and negligent driving of the vehicle by the driver and he got himself injured resulting in his death or bodily injury he is not entitled to claim compensation under the provisions of the Motor Vehicles Act. As the very driver is responsible for accident resulting in his death or bodily injury the owner is not liable to pay any compensation to him under the provisions of the Act and the insurer is under no obligation to indemnify the owner. But at the same time under the provisions of the Workmen's Compensation Act a statutory liability is cast on the employer to pay compensation as per the schedule appended to the Act without reference to his negligence. To put it aptly even if the employee is responsible for the accident caused, though the employer is absolved from paying compensation under the Motor Vehicles Act, his liability to pay compensation under Workmen's Compensation Act remained in tact and no policy to cover the liability under the said Act is required. To put it aptly the policy taken by the employer for use of the Motor Vehicle under Section 146 itself cover the liability of the employer under Workmen's Compensation Act and the insurer has to indemnify him to that extent. Hence an application claiming compensation by a driver who is responsible for causing the accident is maintainable both under the provisions of M.V. Act as well as Workmen's Compensation Act in any of the two Forums. But he is entitled to receive compensation as per the provisions of Workmen's Compensation Act only and this position is made clear in the proviso to Section 147(l)(b) of M.V. Act.
Issue No. VI :
63. In Helen C. Rebello's case (supra) the question that fell for consideration before their Lordships of the Supreme Court was whether amount received by the claimants under Life Insurance Policy of the deceased is deductible from the compensation computed under the Motor Vehicles Act, 1939. Their Lordships having referred to a passage on the Law of Torts by Fleming held in Para 29 as follows:
"The pecuniary loss of each dependant can only be ascertained by balancing, on the one hand, the loss to him of future pecuniary benefit, and, on the other any pecuniary advantage which from whatever sources, comes to him by reason of the death....There is a vital distinction between the receipt of moneys under accident insurance and life assurance policies. In the case of accident policies, the full value is deductible on the ground that there was no certainty, or even a reasonable probability, that the insured would ever suffer an accident. But since man is certain to die, it would not be justifiable to set off the whole proceeds from a life assurance policy, since it is legitimate to assume that the widow would have received some benefit, if her husband had predeceased her during the currency of the policy or if the policy had matured during their joint lives. The exact extent of permissible reduction, however, is still a matter of uncertainty."
Having surveyed the case-law under Life Insurance Act and Motor Vehicles Act, their Lordships held in Paragraphs 35 and 36 as hereunder:
"35. Thus, it would not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable to deduction. However, our Legislature has taken note of such contingency, through the proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death arising out of, (sic and) in the course of employment of an employee.
36. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the Legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction viz., same accident. It is significant to record here in both the sources viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings etc., either for himself or for his family, which such person knows, under the law has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of once accidental death. This of course, is a pecuniary gain but how this equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no correlation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any correlation with an amount earned by an individual, Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or, any provisions of law."
64. Their Lordships further held that the amount received by the claimants under Motor Vehicles Act is without any contribution where as amount received under the Life Insurance Policy is contractual and he has to pay the premium fixed under the policy from time to time. Accordingly it is held that any compensation or benefit receivable under the provisions of other beneficial legislations either statutorily or by virtue of his contribution are not deductable from the compensation payable under the provisions of M.V. Act.
65. As regards the compensation payable to the victim under the Workmens Compensation Act is concerned, it is excluded since the victim is covered by the policy issued under M.V. Act. This position is made clear by their Lordships of the Supreme Court in Helen C. Rebello's case (supra).
Issue No. VII:
66. Sri Subbarao, the learned Counsel appearing for Respondent No. 2 submits that the vehicle of the 1st respondent was insured with the 2nd respondent i.e., his client and due to the rash and negligent driving of its driver, the accident occurred. He also submits that under the provisions of M.V. Act the owner of the vehicle is vicariously liable to pay compensation to the third party as a tortfeasor and he is also liable to pay compensation to his own employee even if the accident takes place due to his fault under the provisions of Workmen's Compensation Act. A combined reading of Sections 146 and 147 makes it abundantly clear that under the Insurance Policy taken by the owner of the vehicle, the insurer is liable to indemnify the insured under both the counts i.e., the compensation payable to third party under the provisions of M.V. Act and the statutory compensation payable to the workman of the insured under the provisions of W.C. Act. Hence, while awarding compensation under the Motor Vehicles Act when two vehicles are involved in the accident, whether the driver of a particular vehicle is responsible for causing the accident or not, the Tribunal has to take into consideration the liability of the owner of the vehicle to pay compensation to his employee under the provisions of Workmens Compensation Act and apportion the compensation between the owners of the two vehicles. In other words, the insurers of both the vehicles to minimise burden of the insurer of the vehicle, which caused the accident, since it has to pay compensation to the driver of the other vehicle treating him as third party in the accident apart from paying compensation to the driver of the vehicle insured with it under Workmen's Compensation Act. For the first time, this issue has cropped up for consideration before this Court and since there is no decided case on this issue, I was forced to consider the same.
67. It is true that when once a policy is taken by the owner of the vehicle under Section 146 of the Motor Vehicles Act, it covers the liability of the owner of the vehicle to pay compensation to the third party (victim in the accident) as well as his own driver who caused the accident under Workmen's Compensation Act. I have already taken a view that in case of bodily injury or death, under the provisions of the Workmen's Compensation Act, the owner of the vehicle is liable to pay compensation to his employee, if a policy is taken under Section 146 of the Motor Vehicles Act as per proviso to Section 147(b)(l) of the Act. As such, an employee covered by this proviso is entitled to file a claim petition claiming compensation both under the Motor Vehicles Act and the Workmen Compensation Act as well. What all is prohibited under Section 167 of the Motor Vehicles Act is that he should not approach both the Forums simultaneously and in the light of the view taken by me in this judgment, the Motor Vehicles Claims Tribunal constituted under the Motor Vehicles Act is empowered to adjudicate the claims of the employees arising under proviso to Section 147(l)(b) of the M.V. Act under Workmen's Compensation Act, without relegating him to go to the competent authority under that Act. Sri Subbarao, learned Counsel also contends that since the liability of the insurer of the vehicle to pay compensation to the employee of the insured who is responsible for causing the accident is also there, and if the insurer has to pay the entire compensation awarded by the Tribunal for the accident caused to a third party as well as the compensation to the employee of the insured under Workmen's Compensation Act, the insurance company will be over burdened to pay the compensation. In other words, the insurer has to satisfy the claim of the third party as well as the person who caused the accident under different enactments. Hence, to obviate the difficulties, Sri Subbarao, learned Counsel suggests that since the liability of the owner to pay compensation to the driver whether he is responsible for causing accident or not under the Workmen's Compensation Act is retained intact, which has to be indemnified by the insurer, the Tribunal has to limit the compensation payable to the third party under the provisions of M.V. Act after deducting the compensation payable to the victim by his employer under Workmen's Compensation Act and direct the insurer of the other vehicle to pay that compensation. In doing so, the interests of victim of the accident is in no way effected and the compensation payable to him will be shared by both the insurers, since the victim is injuncted from claiming compensation under both the Acts. Opposing this contention, Sri Jagannadh, learned Counsel appearing for the 4th respondent with whom the vehicle caused the accident is insured, contended that in case the compensation payable under the Workmen's Compensation is more than the compensation payable to the third party under the provisions of the Motor Vehicles Act, the tortfeasor would escape the liability altogether and the owner of the vehicle, whose employee is nowhere responsible for causing the accident has to pay the compensation and his insurer has to indemnify him to that extent. At the same time, the learned Counsel Sri Jagannadh and Sri Venkateswararao appearing for the appellants admitted that the compensation payable to the victim being a statutory one under the Workmen's Compensation Act will be always less than the compensation payable under the provisions of the Motor Vehicles Act. Assuming for a moment that the compensation payable under Workmen's Compensation Act is less than the compensation payable under the Motor Vehicles Act, in case of injury, the owner of the vehicle has to satisfy the claim of the driver who caused the accident and in case of death, he has to pay compensation to his legal heirs. By following this procedure, the burden of the tortfeasor will be reduced to some extent. Otherwise, he has to satisfy the award of the Motor Vehicles Appellate Tribunal as well as the award to be passed by the competent authority under Workmen's Compensation Act, by paying compensation to the third party as well as the driver, who caused the accident by driving the vehicle in a rash and negligent manner. Sri Venkateswararao, learned Counsel appearing for the appellant contends that this proposition may work out well in cases where both the vehicles are insured. But in cases where there is negligence on the part of the driver of the vehicles belonging to the Andhra Pradesh State Road Transport Corporation and other Government vehicles, which are exempted from obtaining the Insurance Policy and other vehicles, it will be difficult for the third party to recover the compensation. I do not find much substance in this contention because though the APSRTC as the owner of its vehicles is exempted from taking Insurance Policy, under Workmen's Compensation Act, they are not exempted from paying compensation to the third party for the rash and negligent driving of the vehicle by its driver or to its own employee, who caused the accident. Hence, I feel that when two vehicles are involved in an accident and the driver of one vehicle is responsible for causing the accident, it will be fair to work out the compensation payable to the injured person of the other vehicle, by treating him as a third party and thereafter, ascertain the liability of his employer to pay compensation under Workmen's Compensation Act. Then, the Tribunal should pass an award directing the insurer with which the vehicle involved in the accident is insured to pay compensation to the employee of the insured who is nowhere responsible for causing the accident under Workmen's Compensation Act and the rest of the claim has to be fastened on the insurer of the vehicle that caused the accident due to rash and negligent driving of the vehicle by its driver. In other words, after ascertaining the compensation, the Tribunal shall direct the insurers of both the vehicles to pay compensation as per their liability. I am constrained to take this view keeping in mind the liability of the owner of the vehicle to pay compensation to his employee without reference to any negligence on his part, as per the provisions of the Workmen's Compensation Act, is retained in tact under the provisions of M.V. Act. Otherwise, it will be burdensome for the Insurance Company to satisfy the claim of the third party as well as the employee of the tortfeasor. In case of contributory negligence also, after ascertaining the compensation payable under the provisions of the Motor Vehicles Act, the compensation payable by the employer to his employee under Workmen's Compensation Act has to be worked out and the award has to be apportioned between both the insurers. By virtue of this judgment, the Tribunal constituted under the Motor Vehicles Act has to pass an award under the provisions of the Motor Vehicles Act and also an award under Workmen's Compensation Act in case of an employee covered under proviso to Section 147(1) (b) of the Motor Vehicles Act and apportion the compensation as directed above. This issue is answered accordingly."
68. Coming to the merits of the case, the Tribunal found that the driver of the vehicle owned by the first respondent caused the accident by rash and negligent driving of the lorry, in which the driver of the opposite vehicle coming in the opposite direction sustained injuries. As per Ex.A2-Wound Certificate, the claimant apart from receiving a fracture in his right thigh, received simple injuries and as per the evidence of the claimant, he was in the hospital for nine days. As per Ex.A5- Disability Certificate issued by the District Medical Board, there was shortening of the right leg by one inch and the disability is estimated at 20%. As per Ex.A4-Salary Certificate of PW1, the claimant is receiving salary of Rs. 2,290/- per month. Without working out the compensation as per the provisions of the Act, the Tribunal simply awarded Rs. 12,500/- for the grievous injury, Rs. 6,408-73 ps. towards medical bills and receipts (Ex.A6 to A21), apart from awarding compensation at the rate of Rs. 2,000/- for each of the simple injuries and Rs. 20,000/- for the disability. In all the Tribunal awarded a total compensation at Rs. 44,409/-. In awarding the compensation towards loss of earning, the Tribunal is expected to take into consideration the Salary Certificate and work out the compensation as per Sehecule-II of the Motor Vehicles Act. But that was not done in this case. As per the Salary Certificate-Ex.A4, the claimant is receiving salary of Rs. 2,290/- per month. Though the owner of the vehicle was not examined to prove this aspect, the fact remains that the documentary evidence produced by the claimant remained un- rebutted. In these circumstances, I am inclined to take the monthly salary of the claimant as Rs. 2,000/-. As per Schedule-II of the Motor Vehicles Act, the multiplier to be applied for a person of 34 years is 16. The compensation works out to Rs. 3,84,000/- and 20% of the disability works out to Rs. 76,800/-.
69. Accordingly, I modify the award passed by the Tribunal towards disability and award Rs. 76,800/-. The other sums awarded by the Tribunal do not call for any interference. At the same time, it is noticed that the claimant was in hospital for nine days and he would be in plaster for nearly two months and the Tribunal did not award any compensation for pain and suffering. Accordingly, I award Rs. 5,000/- towards pain and suffering. In all, the compensation payable under the Motor Vehicles Act, works out to Rs. 1,01,709/-. Now, I have to work out the liability of the employer under the Workmen Compensation Act. As per Schedule-IV of the Workmen's Compensation Act, in case of permanent disability resulting from an injury, 60% of the monthly wages could be multiplied with the multiplier shown in Schedule IV. For a person aged about 34 years, the multiplier to be applied is 199.40 and it is rounded to 200. If we take the salary of the claimant at Rs. 2,000/-, 60% of the salary works out to Rs. 1,200/- and 20% of it works out to Rs. 240/-. If this amount is multiplied with 200, as per Schedule-IV of the Workmen's Compensation Act, it comes to Rs. 48,000/-. Accordingly, the liability of the owner of the vehicle which was driven by the claimant is fixed at Rs. 48,000/- under Workmen's Compensation Act. After deducting this amount from the total compensation payable under M.V. Act, the liability of the respondent-insurer of the vehicle which caused the accident works out to Rs. 53,709/-. Accordingly, the award is passed fixing the liability of the 2nd respondent at Rs. 53,709/- and the liability of the 4th respondent at Rs. 48,000/-. The said amount shall carry interest at the rate of 9% from the date of filing of the application, till the date of realization.
70. Accordingly, the appeal is allowed and the award passed by the Tribunal is modified. If any amount is paid by the 2nd respondent, he is entitled to Claim set off and the balance amount has to be paid. The Tribunal awarded 12% interest on the meager award. Hence, I am not inclined to reduce the interest on that amount, more so, in the absence of any appeal by the Insurance Company. The enhanced compensation alone shall carry 9% interest from the date of filing of the application.
71. In the light of the foregoing discussion, the legal issues raised in the Cross-objections by the 2nd respondent are answered in favour of the 2nd respondent. Accordingly, Cross-objections filed by the 2nd respondent are allowed. No costs.