Orissa High Court
Orissa State Road Transport ... vs Shankar Sahu on 1 November, 1989
Equivalent citations: II(1989)ACC574
JUDGMENT H.L. Agrawal, C.J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act by the employer against the judgment and order of the Second Motor Accidents claims Tribunal, Sambalpur, awarding Rs. 55,650/- as compensation to the claimant-respondent for the permanent disability suffered by him in an accident, and the question that arises is as to whether the Tribunal could award a higher compensation than that awardable under the Workmen's Compensation Act.
2. The facts: The respondent was a bus driver of the appellant- Corporation. According to the case of the respondent, on 6-11-1979 he was to take a bus of the appellant Corporation from Deogarh to Bamra. When he was asked to take the bus in question, he noticed some defects in the headlight, break system, etc. But be was directed to take that very bus. Unfortunately, the bus met with an accident near a bridge, where there was a stiff curve of 90 degrees as it went beyond the control due to the defective brake. As a result of the accident, the respondent suffered various injuries including two fractures, one in the clavicle and the other in the left forearm. He accordingly filed a claim case before the Tribunal claiming Rs. 1,50,000/- as compensation.
3. In the counter, the allegations and the claim of the respondent were controverted. It was alleged that the accident took place on account of the negligence of the respondent himself in driving the vehicle.
4. Evidence was adduced on behalf of both the parties. On appreciation of the evidence, the Tribunal recorded a finding that the accident was more due to the mechanical defect in the bus than due to the negligence of the claimant. Therefore, this was a case of contributory negligence. He, however, took the view that the contributions of the organisation and the claimant were in equal measures.
5. At the time of the accident, the respondent was drawing a monthly salary of Rs. 490/-and was aged about 35 years. The Tribunal, taking the age of retirement of the respondent to be 58 years, calculated his earning period at 23 years Taking the yearly income at Rs. 6,000/- and multiplying it by 23, he found that the total amount of compensation that way would come to Rs. 1,38,000/-. Then by dividing the amount by 2 on account of the proportionate negligence of the respondent and taking into account also the uncertainties of life and payment of the amount in a lump sum, he fixed the compensation at Rs. 55,500/-. He then allowed Rs. 150/- as cost of treatment, etc. Accordingly, the Corporation has filed this appeal and the respondent a cross-objection.
6. Before the learned single Judge, it was submitted on behalf of the appellant that since the respondent was a 'workman' and the accident had occurred in course of his employment, the amount of compensation could not be more than what was payable to him under the provisions of the Workmen's Compensation Act, which, on the facts of the present case, would be much less than the compensation awarded by the Tribunal under the Motor Vehicles Act. It was further submitted that in view of the special statute governing the case of the respondent, he could not have preferred a claim under the general law, namely, the Motor Vehicles Act. The learned Judge, finding some 'conflict' between the decisions of this Court itself and in view of the authorities of some other High Courts, has referred the matter to a Division Bench for an authoritative decision.
7. Let us first notice the relevant provisions of the law. Section 110-AA of the Motor Vehicles Act was inserted by the Act 56 of 1969 and came into force with effect from 2-3-1970. In view of the controversy, it would be better to quote the provision of this section:
Section 110-AA. 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 (8 of 1923) the person entitled to compensation may, without prejudice to the provisions of Chapter VII-A, claim such compensation under either of those Acts but not under both.
8. It would be relevant to notice that before the creation of the forum under the Motor Vehicles Act in the year 1956, a claimant was entitled to file a suit for damages under the general law in the civil court. Even at that time it was open to the claimant to pursue his remedy either under the general law or under the Workmen's Compensation Act (See Section 3(5) of the Workmen's Compensation Act). Thus, the claimant could seek his relief only in one forum. Later on, the jurisdiction of the civil courts was ousted by insertion of Section 110-F of the Motor Vehicles Act with respect to claims arising out of an accident by a motor vehicle with effect from 16 2-1957. When the Parliament, in its wisdom, inserted Section 110-AA, it definitely intended that a person who is entitled to compensation under both the Acts has to choose either of the forums. Obviously, therefore, a claimant cannot claim compensation under both the Acts and it is for him to choose either of the forums. It will also be useful to refer to the objects and reasons for inserting Section 110-AA, which reads as follows:
At present it is open to workmen to file a claim before a Commissioner for compensation under the Workmen's Compensation Act, 1923, even though he had preferred a claim earlier under the Motor Vehicles Act to a Motor Accidents claims Tribunal and that claim had been adjudicated upon by that Tribunal. It was never intended nor it is desirable to ollow a workman to claim relief under both the Acts. Hence, this proposed amendment--S.O.R.
9. The effect of the above provision is that it gives option to the claimant to seek compensation either under the Workmen's Compensation Act or under the Motor Vehicles Act. But, what is prohibited is that he cannot claim compensation under both the Acts. A plain but careful reading of the above provision would show that an application under Section 110-A would lie under the Motor Vehicles Act only where the facts give rite to such a claim under the provisions of the Motor Vehicles Act. It is the settled law that the person who claims compensation under the Motor Vehicles Act has to show that the accident took place due to the actionable negligence, which has not to be established under the provisions of the Workmen's Compensation Act, where a statutory liability of the employer has been created even if the accident took place on account of the negligence of the employee. The quantum of compensation under the Workmen's Compensation Act is, however, quantified in the Schedule itself. This Act offers no leeway in the matter of quantification of damages; the process becomes mechanical once the pay packet of the claimant is known. But under the common law of Tort, it has to be determined by the Tribunal, which should be the 'just compensation' on the basis of well-settled principles. It was vehemently contended by the learned Advocate for the appellant that the respondent having the cause of action only against his employer, the option of 'forum shopping' was not available to him at all. In any case, it should not entitle him to claim a higher compensation than that quantified in the Workmen's Compensation Act. In other words, he should not be allowed to make a 'profit. As has been held by S.C. Mohapatra, J. in Govind Nayak v. Shyam Sundar Sonl 1988 ACJ 39 (Orissa) : 1986 (1) ACC 19, the Tribunal while determining the compensation is to keep in mind that the compensation is not a source of profit to the claimant. Award of higher compensation would have the effect of deviating from the justness of the compensation determined by the representative of the people. Taking the above view, the learned Judge held:
... By change of forum the standard of justness in the Act and the 1923 Act cannot vary and the rate given in the Schedule to the 1923 Act would be the guideline for the Tribunal for determining the compensation to be awarded.
10. The above decision is the sheet anchor of the learned Advocate for the appellant. I do not find any decision either of this Court or of any other High Court taking a similar view, even remotely. The two decisions of this Court in Oriental Fire and General Insurance Co. Ltd. v. Bidi 1972 ACJ 187 (Orissa) and the Orissa Co-operative Insurance Society Ltd. v. Sarat Chandra Champati 1975 ACJ 106 (Orissa), apart from being prior to the insertion of Section 110-AA in the Motor Vehicles Act, were deciding the question of the liability of the insurer. The point in issue in the present case did not arise there for the obvious reason that the newly inserted section being prospective in nature could not be applied while the matter fell for decision. See Gayatri Devi v. Tani Ram .
11. There is yet another decision of this Court decided by my learned brother Misra, J. in Subasini Panda v. State of Orissa 1984 ACJ 276 (Orissa) : 1984 (2) ACC 13. This was a case in which the accident had taken place on 7-10-1972 where the driver of the jeep belonging to the State of Orissa died in the accident. The claims Tribunal had dismissed the claim on various grounds and, on appeal, the contestant insurance company had set up a plea that compensation was awardable only against the employer, and that the insurance company was not liable. This contention was repelled on the following observation:
...By virtue of Section 95 of the Act, the Tribunal constituted under that Act is competent to determine the liability of the insurance company to the extent the workman was entitled to compensation under the 1923 Act.
12. I find an observation made by the learned Judge in Oriental Fire and General Insurance Co. Ltd. v. Bidi 1972 ACJ 187 (Orissa), where also the driver of the truck had died in an accident and a claim petition was filed under Section 110-A of the Motor Vehicles Act before the claims Tribunal. While answering the question as to whether the liability of the insurance company had ceased when a claim was preferred under the Motor Vehicles Act instead of the Workmen's Compensation Act, the learned Judge observed that:
...If proceedings were instituted before the claims Tribunal and the claimant succeeded in proving negligence, they may get a far larger amount by way of compensation than the amount payable under the Workmen's Compensation Act. In such a case, the liability of the insurance company would be limited only to the amount payable under the Workmen's Compensation Act and the balance amount would in that case be payable by the person through whose negligence the death has occurred...
13. The above observation has not been noticed in Govind Nayak's case, (supra) of this Court.
14. It is now well settled that for the death of or bodily injury to any person, claim for compensation may be adjudicated under the Motor Vehicles Act as well as the Workmen's Compensation Act. While inserting Section 110-A A, the Parliament was aware of the existing law. Therefore, when a new forum is created, it must be deemed that a more benevolent forum was provided for the claimants. A provision which purports to take away or abridge the right to claim compensation must receive strict interpretation. The language of Section 110-A A is clear and unambiguous. The claimant who chooses to prefer his claim under the Motor Vehicles Act cannot be deprived of the advantages that may flow to him like any other claimant simply because he happens to be an 'employee'. It may well be that there may be cases where by exercising malpractice, a shrewd employer may divert the claim against the tortfeasors to the Tribunal, thereby escaping his liability altogether. Similarly, a shrewd tortfeasor may escape his liability by diverting the claim against the employer to the Tribunal under the Workmen's Compensation Act, thus, escaping scot-free.
15. The Allahabad High Court in Kalawati v Balwant Singh 1986 ACJ 550 (Allahabad), while considering the case of a bus conductor who was killed while be was supervising unloading of passengers' luggage from the roof of the bus being hit by a truck has held that the cause of action against a tortfeasor, i.e., the owner of the offending vehicle, was independent of the statutory right of the employee to get compensation from his employer and suggested for suitable amendment of the statute to obviate the above malpractice. I find myself in whole-hearted agreement with the above observation of the learned Judges. In paragraph 26 of the report, the Allahabad High Court has also taken note of the fact that compensation payable under the Motor Vehicles Act is substantially more than the amount awarded under the Workmen's Compensation Act. I, however, find a more direct decision of the same High Court in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Ram Sunder Dubey 1982 ACJ 365 (Allahabad). It has been observed in that case that there is nothing in the Motor Vehicles Act to show that while awarding compensation to an employee under the Motor Vehicles Act, the Tribunal is bound to apply the Schedules framed under the Workmen's Compensation Act for determining the amount of compensation.
16. The observations made in a Bench decision of the Bombay High Court in National Insurance Co. Ltd. v. Gonti Eliza David 1984 ACJ 8 (Bombay) : 1984 (1) ACC 240, also give support to the above view to some extent. It is no doubt true that if the driver had suffered the injury due to his rash and negligent driving, a claim under Section 110-A of the Motor Vehicles Act could not have been Maintainable for the doctrine of res ipsa loquitur (Sic. volenti non fit injuria), as a person cannot claim advantage for his own wrong.
17. In Govind Nayak v. Shyam Sundar Soni 1988 ACJ 39 (Orissa) : 1986 (1) ACC 19 it has been observed by S.C. Mohapatra, J. that no reason has been assigned in the earlier case of this Court for holding that a claim for higher compensation by an employee or his legal heirs can be made before the claims Tribunal. The same criticism may be applicable with equal force to the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Ram Sunder Dubey 1982 ACJ 365 (Allahabad). I, therefore, deem it appropriate to give my reasons for taking the contrary view.
18. Unless there was some necessity, the Motor Vehicles Act would not have been amended by the Parliament in its wisdom, when under the Workmen's Compensation Act, the statutory liability was already there. In my considered opinion, the reason is not too far to seek. If in course of employment a workman dies or suffers any bodily injury, then by applying the Schedule, the employer is bound to pay the compensation even though the accident might have taken place on account of the apparent negligence or mistake of the employee himself. A basic security has been provided to the employees in the Workmen's Compensation Act, and the amount of compensation depends upon the 'pay packet', age, etc., of the employee. No proof whatsoever in support of the accident is necessary. If an employee, however, chooses to go to the other forum, i.e., the Motor Vehicles Act, then he obviously deprives himself of the in-built statutory right of getting the fixed compensation for the chance of getting a higher compensation.
19. Before the claims Tribunal, he can claim damages/compensation against the tortfeasor, i.e., a third party, for causing the injury or even death. In such a case the calculation of compensation will be done by the Tribunal in the same manner as is done in the case of any other claimant. There is no question of enriching him. Similarly, when. The claim happens to be confined only against his employer, where there is no out-sider or a tortfeasor, he can get the compensation from his employer only when be proves that the accident occurred due to the negligence of his employer. In that case, be can get a higher amount than the scheduled amount under the Workmen's Compensation Act. The Parliament has deliberately provided this remedy to him. As stated earlier the accident may occur on account of the negligence of the employer in violating various requirements for the safety of his employees exposing them to the risk of injuries as well as loss of life. In such cases, it might have been thought that the employer should not be let off on payment only of a 'standardised compensation and he must be exposed to the liability of the payment of higher compensation commensurate with the extent of the loss or injury, which could be assessed and found on the evidence brought on the record and might appear to be 'just compensation'.
20. I think, the above principles explain fully the justification for awarding higher compensation to such employees who suffer on account of the laches and negligence of their employees. While coming to the claims Tribunal, the employees or their legal representatives, as the case may be, would be running the risk of not getting any compensation, if it is established that the accident took place only on account of the mistake or negligence of the employee himself. In that event, there is 'no actionable negligence' in the case as was also found by a Bench of the Karnataka High Court in D. Jay ammo v. S. Govindaswamy 1982 ACJ 467 (Karnataka).
21. I would, therefore, reject the submission made by the learned lawyer appearing for the appellant and lay down that in determination of the 'just compensation' in a claim case filed in exercise of the option under Section 110-A A of the Motor Vehicles Act, the claims Tribunal is not bound to confine the amount of compensation to the Schedule in the Workmen's Compensation Act. Once 1 take this view, then it must be held that Govind Nayak's case, (supra), has not been correctly decided.
22. The question that now arises is as to whether the amount of compensation awarded by the claims Tribunal justifies any interference by this Court.
23. We have seen that the Tribunal has found that there was compound fracture of the left ulna and the left clavicle on the basis of evidence of PW 1, the doctor. On the evidence, the Tribunal has recorded the finding that the claimant bad become unfit for any hard work even with his right hand and, therefore, he could not perform his duty as a driver. But I do not find any justification for his conclusion that working, as a driver could be the only way for the claimant for earning his livelihood. It appears from the evidence of PW 1 that if the claimant would have undertaken the operation, as suggested by the doctor, he could have fully recovered. The injury, therefore, could not be said to have rendered the claimant totally disabled in the real sense of the term. However, in any view of the matter, even with that disability and infirmities suffered by the claimant for which he could not do hard work with his left hand, his right hand being alright, it could not be said that he could not earn his livelihood by any other mode altogether. There was no justification for the Tribunal to compute the compensation on the basis of the total loss of the earning capacity of the claimant and calculating on the basis of the entire income of the claimant at the rate of Rs. 6,000/- per year. As some guess work has got to be applied in the matter of computation, particularly when there is no specific evidence, I would reduce the loss of income by 40 per cent only. Calculating the loss of income per year on that basis, it would come to Rs. 3,600/-. Adopting all other principles and the basis applied by the claims Tribunal, the compensation payable to the claimant would be reduced to Rs. 35,200/- (in round figures) which I opine to be the just compensation to him.
24. In the result, the appeal succeeds in part and the amount of compensation is reduced to Rs. 35,200/- (in round figures). Nobody appeared to press the cross-objection, which is dismissed as not pressed. In the facts and circumstances, I shall make no order as to costs.
25. The amount of compensation will carry interest at the rate of 12 per cent per annum which must be paid within six months to the claimant (if not already paid) failing which it will carry interest at the rate of 18 per cent until the date of payment.
P.O. Misra, J.
26. I agree.