Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Devidas (Decd. Through Legal ... on 15 February, 1985
JUDGMENT K.L. Shrivastava, J.
1. This order shall also govern the disposal of Misc. Appeals Nos. 228 of 1977 and 229 of 1977 which also arise out of the motor accident which happened on December 15, 1973.
2. It is not in dispute that the accident truck bearing registration No. MPF 7535 owned by Devidas since deceased and insured with the appellant against third party risks, was being driven by Madanlal when at about 7 a.m. on December 15, 1973, on the Sanwer Road, at the railway level crossing between Railway Station Manglia and Laxmibai Nagar, it collided against a Running train. The accident had resulted in three deaths. The legal representatives of the deceased filed three separate claim petitions and the learned member of the Motor Accidents Claims Tribunal, Indore, by its separate awards dated July 6, 1977, granted Rs. 11,000 as compensation to each set of claimants. The particulars of the claim cases and the connected appeals are as under:
S. No. Name of deceased Claim case No. Misc.
Appeal No.
1.
Kersingh 38 of 1974 228 of 1977
2. Radha 33 of 1974 229 of 1977
3. Nandu 30 of 1974 230 of 1977
3. According to the claimants, the deceased were working as labourers in the truck. At the level crossing, the truck driver did not bring the truck to a halt despite having seen the passing train. He was driving the truck negligently and at high speed and the accident was the result of the same.
4. The owner of the truck and its driver filed a joint written statement. According to it, the deceased persons were in the truck in their capacity as labourers. The truck was being driven at a low speed and with caution. The accident occurred due to the failure of the brakes.
5. The insurer contested the claim on various grounds. In addition to the plea of sudden failure of the brakes of the truck, it was stated that the insured having transferred the truck, prior to the accident, the policy of insurance had lapsed. The truck driver had no driving licence. The liability, if any, for the accident is of the Railway Department.
6. At the conclusion of the trial, the learned member of the Claims Tribunal held that it has not been proved that on the date of the accident the truck had been transferred or that the truck driver had no driving licence. It further held that it has not been proved that there was sudden failure of brakes, as alleged. Finding that the accident was due to negligence of the truck driver, he, the insured, vicariously, and the insurer under the terms of the policy, were all held liable to the claimants.
7. The point for consideration is whether the appeals deserve to be allowed.
8. Shri Behal, learned counsel for the appellant, contended that the testimony of the claimants' witness, Lalsingh, is that the truck was of the ownership of Ramdeo. The learned Tribunal has rightly held that on December 10, 1973, the truck was duly registered in the name of Devidas and in the absence of any other material, the said version of a labourer, without disclosure of its basis, was not sufficient to warrant a finding that there had been transfer of the truck in favour of Ramdeo. In the circumstances of the case, the greater probability is that Ramdeo had been working in the truck for and on behalf of the truck owner, Devidas.
For the same reason, the appellant's further contention that the deceased were not being carried in the truck by reason of or in pursuance of a con tract of employment, but were gratuitous passengers, has also to be negatived.
9. The appellants' learned counsel's next contention based oh Section 96(2)(b)(ii) of the Motor Vehicles Act is that the truck driver had no driving licence and, therefore, the appellant cannot be held liable under the policy for payment of compensation.
10. In the decision in National Insurance Co. Ltd. v. Bhagirath, AIR 1984 MP 24, it has been held that the Burden lies upon the insurance company to establish that the person driving the vehicle was not properly licensed and unless this is done, the insurer cannot avoid its liability to pay compensation to the victims of an accident.
11. In the instant case, the insurer, except giving notice for production of the licence, has done nothing to discharge the burden. Srikrishna as N. A. 1 examined by the insurer is silent on the question of the truck being driven without driving licence. No attempt was made to examine the truck driver or to examine any one from the office of the R. T. O., Indore, in order to find out whether the truck driver was licensed for truck-driving. The presumption is that persons act in obedience to the law of the land. Therefore, on the material on record, it has to be held that the conclusion arrived at by the learned Tribunal on the issue of licence is proper.
12. The contention of Shri Behal regarding liability being that of the Railway Department is, on the face of the evidence on record, devoid of merit. The truck had not been brought to a halt despite seeing the passing train. As to the circumstances in which the liability of the Railway Department arises,, the decision in Shankerrao Laxman Rao v. Union of India, AIR 1959 MP 128, may usefully be perused.
13. Shri Behal, learned counsel for the appellant, relying on the decision in Huseinbhai Ahmad Bhai Memon v. Mangiben Lallubhai Holi [1984] ACJ 701 (Guj), lastly contended that each of the deceased persons was a "workman" within the meaning of the Workmen's Compensation Act, 1923, and, therefore, under the terms of, the policy of insurance, the liability of the insurer, according to Schedule 4, Section 4 of the Act, does not extend beyond Rs. 7,000 as the monthly income of each of the deceased was only Rs. 180.
14. The contention of learned counsel for the claimants is that as laid down in National Insurance Co. Ltd. v. Gonti Eliza David [1984] ACJ 8 ;
[1986] 59 Comp Cas 745 (Bom), when the claim has been laid before the Tribunal, the liability has to be determined in accordance with the pro visions of the Act, In the aforesaid decision, it has been held that when the claimants take upon the themselves the burden of proving negligence, their claim cannot be restricted to the amount payable according to the Schedule under the Workmen's Compensation Act and they are entitled to the common law damages.
15. I am inclined to the view taken in the decision referred to in the preceding paragraph. In paragraph 12 thereof, with reference to the provisions in Sub-sections (1) and (2) of Section 95 of the Act, it has been observed thus (at page 749 of 59 Comp Cas) :
"The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating the language of the proviso to Sub-section (1) of Section 95 with that in Sub-section (2) of that section. The former seems to tell the insurer and the owner : 'as regards third party risks, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmen's Compensation Act'. Sub-section (2), on the other hand, gives a confusing mandate : 'there is an outer limit of one lakh of rupees as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmen's Compensation Act also. The use of an inclusive definition in grafting Sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmen's Compensation Act but also something more. Needless to say, that other species of liability would be the one arising under common law of the tort.
For resolving the ambiguity referred to above, referring to the decision in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi [1982] 52 Comp Cas 454 (SC), it has been stated thus in paragraph 13 of the aforesaid decision (at p. 749 of 59 Comp Cas) :
" The only way to resolve the ambiguity would be, as pointed out by the Supreme Court in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi [1982] 52 Comp Cas 454 (SC), to apply the touchstone that' the purpose of the law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled under Section 110AA of the Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different --a Tribunal would apply the principles of strict liability circumscribed by the Workmen's Compensation Act while, if the aggrieved chooses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining his case. The quantum of compensation under the Workmen's Compensation Act is quantified in the Schedule itself. But the quantum of damages under the common law of tort is subject to determination by the Tribunal on the basis of well-settled principles. The Workmen's Compensation Act offers no leeway in the matter of quantification of damages ; the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a Tribunal which is generally presided over by a senior judicial officer may throw open a number of issues the burden of proving which would lie on the claimant. In this option of forum shopping--if the workman has chosen to undertake the responsibility of discharging the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression " including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 ", occurring in Clause (a) of Sub-section (2) of Section 95 of the Motor Vehicles Act which implies that the insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act."
16. In the ultimate analysis, I find that the impugned awards in the three claim cases are unexceptionable and deserve to be affirmed.
17. In the result, the appeals fail and are dismissed. The appellant to bear its own costs and shall pay those of the claimants. The other respondents shall bear their own costs as incurred. Counsel's fee Rs. 150 only in each appeal, if certified.