Madhya Pradesh High Court
Krishna Wd/O Shiv Prasad Mourya And Ors. vs J.P. Sharma And Ors. on 25 June, 1997
Equivalent citations: 1998(1)MPLJ697
Author: Rajeev Gupta
Bench: Rajeev Gupta
ORDER S.K. Dubey, J.
1. Aggrieved of the dismissal of the application under Section 166 of the Motor Vehicles Act, 1988, for award of compensation for the death of Shiv Prasad Mourya, arising out of an accident by the use of a two-wheeler Kinetic- Honda scooter, the appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act').
2. Facts giving rise to this appeal are this: The deceased a daily wager was getting Rs. 627 per month working as a peon in O.F.K. Government College, Khamariya, Jabalpur, of which the respondent No. 1 was the Principal. The respondent No. 1 is a cardiac patient, therefore, the deceased used to bring him on the said scooter bearing registration No. MP-20 C/2737. On 18-5-1991, which was a holiday, the deceased went to the residence of the respondent No. 1, where he was asked by the respondent No. 1 to fill up the fuel and to check the air of the wheels of the scooter. While the deceased was coming back with a pillion rider Akaldas, the scooter struck with an electric pole, as a result of which the deceased who was driving the scooter died at the spot. The pillion rider received multiple injuries. The appellants legal representatives of the deceased filed an application under Section 166 of the Act to claim compensation for the death of the deceased arising out of and during the course of employment. No averment was made of negligence in the application, so as to hold the owner and insurer of the vehicle liable for the tortious act. After recording the evidence, the Tribunal dismissed the application for compensation holding that it has no jurisdiction to pass an award, as the appellants have failed to establish the negligence on the part of the owner of the vehicle. The Tribunal further observed that the appropriate remedy if any, in the circumstances, is to claim compensation under the provisions of the Workmen's Compensation Act, 1923. (for short the 'W.C. Act').
3. Shri S. K. Jain learned counsel for the appellants submitted that the Tribunal illegally dismissed the application for compensation ignoring Section 167 of the Act which gives an option regarding claim for compensation, where the death or of bodily injury to any person gives rise to a claim for compensation under this Act, and under the W. C. Act, the person entitled to compensation may without prejudice to the provisions of the said Act claim such compensation under either of these Acts, but not under both.
4. Ku. Tanu Tondon for respondent No. 1 and Shri N. S. Ruprah for respondent No. 2 submitted that the Tribunal rightly dismissed the application as the appellants did not discharge the burden to prove negligence so as to make owner and insurer liable to pay compensation which is sine qua non to get an award of compensation under Law of Torts.
5. The question for consideration before us is whether a workman in case of injuries or the legal representatives of a workman for the death caused in motor accident arising out of and during the course of employment can claim compensation before the Tribunal without proof of tortious act of the owner of the motor vehicle. It would be appropriate to refer to Section 167 of the Act (Section 110-AA of the repealed Motor Vehicles Act, 1939) which reads thus:
"167 Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury, to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
From a bare reading of Section 167, it is evident that it gives an option to the claimants to claim compensation on either under the Workmen's Compensation Act or under the provisions of this Act. It is the election of the claimant/s under Section 167, if the claimant/s to claim compensation who have been found to be a tort feaser by the Tribunal, it is not open to the Tribunal to fasten the liability on the owner, driver and insurer on the basis of the liability created under the Workmen's Compensation Act, but, the claimant/s would be entitled to get the entire compensation as determined for the injuries suffered or death of a person/workman caused in an accident arising out of use of motor vehicle. Norms of Workmen's Compensation Act cannot be applied. See Suresh Chandra v. State of U. P., (1995) 6 SCC 623, Mangilal v. Pramod, 1988 JLJ 121, K.K. Jain v. Smt. Masroor Anwar, 1989 MPLJ 690 = AIR 1990 MP 87 and a Division Bench decision of this Court in Oriental Insurance Company Limited v. Sudha Devi wd/o Gopal Singh, 1997 (1) MPLJ 362.
6. It is well settled that to succeed a claim for compensation for the injury suffered or for the death caused in accident by the use of Motor Vehicle, for holding the owner, driver and insurer liable to pay compensation proof of negligence is necessary. Therefore where a workman or the legal representatives of the deceased workman prefer the forum of the Tribunal to claim compensation for the injury suffered or for the death of a workman in a motor accident, they undertake the burden of proving of negligence of owner/insurer so as to make them liable to pay compensation. See the decisions of this Court in Mangilal's case (supra) and Babi v. Sona Khan, 1996 MPLJ 988.
7. In the case in hand, neither in the application for compensation the negligence on the part of the owner has been pleaded, nor it has been proved before the Tribunal that the vehicle was not in road worthy condition which resulted in the accident. On the other hand, the circumstances speak that it was the deceased himself who was driving the scooter struck with the pole, as a result of which he and the pillion rider fell down, and the deceased died. Therefore, in the absence of proof of negligence on the part of the owner of the vehicle, the appellants cannot seek compensation on the basis of the provisions of the Workmen's Compensation Act, where if the accident occurs arising out and during the course of employment, the employer's liability is to pay compensation under Section 3, to be calculated in accordance with the provisions contained in Chapter II of the Workmen's Compensation Act.
8. However, as the Insurance Company has paid an amount of Rs. 25,000/- with interest in compliance of the order passed under Section 140 of the Act, we direct that because of the dismissal of the application for compensation the said amount would not be recovered by the Insurance Company from the appellants. To say so we take support from the decision of the Supreme Court in K. Nanda Kumar v. Managing Director, Thanthal Periyar Transport Corporation, (1996) 2 SCC 736.
9. In the result, the appeal fails and is dismissed with no order as to costs.