Chattisgarh High Court
The Oriental Insurance Company Limited vs Smt Manorama Devi on 4 October, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
M A No 628 of 2006
The Oriental Insurance Company Limited
...Petitioners
Versus
1 Smt Manorama Devi
2 Ku Poonam
3 Churaman Sao
4 Smt Sona Devi
...Respondents
! Shri Manish Upadhyay and Shri K N Chaturvedi Advocates for the appellant
^ Shri P P Sahu counsel for respondents No 1 to 4 None for respondent No 5
CORAM: Honble Shri Justice R L Jhanwar
Dated: 04/10/2010
: Judgement
ORDER
Passed on 4102010 APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT The Oriental Insurance Company has filed this appeal for setting aside award dated 30.01.2006 passed by the 12th Additional Motor Accidents Tribunal (F.T.C.), Durg in claim case No. 39/2005 whereby the Claims Tribunal awarded a sum of Rs.2,91,400/- as compensation to the claimants No. 1 to
4.
2. Brief facts, in a nutshell, are that on the date of incident i.e. 23.10.2002 deceased Alakh Bihari Sao was the driver carrying Tomatoes from Bhilai to Jagdalpur in vehicle 407 bearing No. C.G.07ZB/1078 (offending vehicle). At one kilometer away from Parasgaon, due to his own rash and negligent driving, the offending vehicle became uncontrolled, resulting into, hit against the mango tree, and Alakh Bihari has died instantaneously on the spot.
3. On account of death of Alakh Bihari, the legal representatives of the deceased preferred a claim petition under Section 166 of the Motor Vehicles Act.
4. Respondent No.5/Owner of the offending vehicle filed his written statement contending that he had no knowledge as to how the accident took place; on the date of accident the said offending vehicle was insured with the appellant/insurance company, therefore, insurance company is liable for payment.
5. The appellant/insurance company also filed its written statement denying all the facts as mentioned in claim petition. It was specifically pleaded therein that on the date of accident, the vehicle was being driven against the terms and conditions of the insurance policy.
6. After affording opportunity of hearing to the parties and recording evidence of the parties, the Claims Tribunal, on close scrutiny of the evidence led before it, inter alia holding that the driver of the offending vehicle was himself negligent in driving the offending vehicle rashly, due to which, the said offending vehicle was uncontrolled, resulting into, death of driver on the spot, awarded a sum of Rs.2,91,400/- as total compensation to the claimants with interest at 7% per annum from the date of filing of claim petition till the date of actual payment. It is this order; the appellant/insurance company preferred this appeal.
7. Learned counsel for the appellant argued that basic premium of Rs.30/- was paid by the owner to cover the risk of driver and cleaner of the vehicle but under Annexure A-2 of policy of insurance the basic premium did not cover the risk of driver. He also argued that since the appellant / insurance company was restricted to Workmen Compensation Act (for short `the Act') and covered the risk of driver & cleaner under the Act, therefore, for the death of driver the appellant is not liable under Motor Vehicles Act. He also argued that legal liability for paid drivers / workmen No.2 was mentioned in the policy, therefore, the liability of the insurance company was fixed statutorily under Workmen Compensation Act. It was also argued that the insurance policy is in fact a contract between the parties and the policy being in nature of contract, the parties are bound by the insurance policy. It was also argued that under Workmen Compensation Act, the claimant is entitled to receive compensation of Rs.2,26,044/- instead of Rs.2,91,400/-. Lastly, it was urged that compensation of Rs.2,91,400/- awarded by the Tribunal is on higher side.
8. On the other hand, learned counsel for the respondents/claimants No. 1 to 4 while supporting the impugned award argued that compensation awarded by the learned Tribunal is just and proper compensation.
9. Having heard learned counsel for the parties, I have perused the record of the Claims Tribunal and impugned order.
10. In this case, for the death of driver - Alakh Bihari on account of motor accident, the legal representatives of the deceased filed claim petition under Section 166 of the Motor Vehicles Act and the learned Claims Tribunal also awarded compensation under the provisions of M.V.Act, to the claimants. Section 167 of the M.V. Act starts with non- obstante clause and under this Section, option was provided to the claimants to file claim application for compensation before the Claims Tribunal or before the Commissioner for Workmen Compensation. Section 167 of the M.V. Act reads as under:
Section 167: Option regarding claims for compensation in certain cases.-- Notwithstanding any contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
After perusal of above, it is clear that the above section gives claimant to make claim one of the two forums but not before both meaning thereby the claimant has to make a choice either to claim compensation under the Workmen's Compensation Act or to claim damages under the General Law (i.e. Motor Vehicles Act). If once that option was exercised and an award has been passed under Workmen's Compensation Act, then it is not open to the claimant to avail the remedy under the Motor Vehicles Act and if the award has been passed under the Motor Vehicles Act, then the claimant cannot claim compensation under Workmen's Compensation Act. The choice is left with the claimant or dependents of the victim in case of death. That choice must be exercised and once so exercised, the Act under which they pursue the remedy must decide the quantum of compensation in accordance with the facts of the case.
11. I am fortified in my view by the judgment of the Apex Court in the matter of National Insurance Co. Ltd. v. Mastan, 2006 ACJ 528 (SC), in para 22 held as under:
"Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act."
Thus, it is clear from the above Section that the claimant or legal representatives of deceased has option to choose their remedy under one forum but not under both the forums.
12. So far as insurance policy is concerned, IMT - 17 is relevant and reads as under:
IMT - 17 Legal Liability to persons employed in connection with the operation and/or Maintaining and/or Loading &/or unloading of motor vehicles:
In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured against his legal liability under:
The Workmen's compensation Act 1923 and subsequent amendments of that Act prior to the date of the Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/or engaged in the services of the insured in such occupation in connection with the ....and not exceeding six in number (excluding driver) and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium having been calculated at the rate of Rs.15/- per driver (and/or cleaner) or conductor and or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner).
PROVIDED ALWAYS THAT
1. This Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurance Company or group of Underwriters a Policy of insurance in respect of liability as herein defined for his general employees.
2. The insured shall take reasonable precaution to prevent accident and shall comply with all statutory obligations.
3. The insured shall keep a record of the name of each driver, cleaner, conductor or person employed in loading and or unloading and the amount or wages salary and other earnings paid to such employees and shall at all times allow the company to inspect such record.
4. In the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed Subject otherwise to the terms, exceptions, conditions and Limitations of the Policy except in so far as necessary to meet the requirements of section 147 of the Motor Vehicles Act, 1988.
On perusal of above condition, it is clear that claim application can be filed by the claimants, or legal representatives or bodily injury of person by filing application either under Workmen's Compensation Act or Fata Accidents Act, 1855 or under Common Law. Thus, the claimants in the present case has filed this case under M.V. Act (Common Law), and therefore, the argument advanced by the learned counsel for the appellant that the policy being restricted to Workmen's Compensation Act, the claimants are not entitled to receive any compensation has no force. It is also pertinent to mention here that as per the policy, Rs.30/- was charged for paid drivers/workmen No.2 employed in connection with the operation, maintenance, loading and unloading of the motor vehicle. I am of the considered opinion that this clause of the policy cannot override the statutory provisions of Section 167 of the Motor Vehicles Act which starts with non obstante clause that notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) in case of death or bodily injury, the claimants shall be entitled to file claim petition under the Motor Vehicles Act or under the Workmen's Compensation Act, 1923. In the present case, the legal representatives of the deceased rightly chose one option under Motor Vehicles Act and according to Motor Vehicles Act, the learned Tribunal has awarded compensation. The learned Claims Tribunal has not committed any illegality or irregularity to award compensation under the provisions of the M.V.Act.
13. So far as compensation of Rs.2,91,400/- awarded by the Tribunal is concerned, in my opinion, it is neither meager nor bonanza, in the facts and circumstances of the case. The Tribunal has awarded just and reasonable compensation to the claimants.
14. The law in relation to awarding compensation in accident cases is well settled. Under the Motor Vehicles Act, the Tribunals are under obligation to award `just and reasonable' compensation to the genuine claimants after determining the factum of accident as also the factum of rash and negligent act on the part of driver of the offending vehicle. It has to be borne in mind that the compensation is not expected to be windfall for the victim. The statutory provisions clearly indicate that the compensation must be just and it cannot be a bonanza. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just and which would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is pivotal consideration and requires judicious approach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness. Please see State of Haryana and another -Vs- Jasbir Kaur and others, (2003) 7 SCC 484 and Helen C. Rebello (Mrs.) and others -vs- Maharashtra State Transport Corporation and another, (1999) 1 SCC 90.
15. For the foregoing reasons, I do not find any substance in the appeal; therefore, the appeal filed by the appellant/insurance company is liable to be and is hereby dismissed. No order as to costs.
JUDGE