Himachal Pradesh High Court
New India Assurance Co. Ltd. vs Phulma And Ors. on 30 August, 2005
Equivalent citations: II(2006)ACC686, 2006ACJ2537
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This appeal has been filed by New India Assurance Co. Ltd. against order dated 15.12.1993 passed by the Commissioner under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') vide which a sum of Rs. 76,000 was awarded to the claimants besides interest and penalty.
2. The facts, which are relevant for the decision of the present appeal, are that the claimants Phulma, etc., had filed a petition before the Commissioner under the Act for the grant of compensation to the extent of Rs. 3,00,000 against Bhagat Ram (owner) and New India Assurance Co. Ltd., insurer of the vehicle involved in the accident resulting in the death of Balak Ram deceased. It was alleged in the petition that the accident in question had taken place on 8.8.1986 and that Balak Ram deceased was employed as a driver in the truck owned by Bhagat Ram and he was drawing a salary of Rs. 2,100 per month and was aged 36 years at the time of accident and that as a result of the said accident he died on the same day. Claimants claimed Rs. 3,00,000 as compensation for the death of deceased, alleging therein that he had died at the spot during the course of his employment. It was further alleged that the claimants had previously filed a petition under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the 1939 Act') and that the same was dismissed by the Motor Accidents Claims Tribunal holding that the deceased was driving the said vehicle at the time of the accident. Since the petition filed by the claimants was barred by limitation, an application under Section 5 of the Limitation Act was also filed seeking condonation of delay in filing the petition.
3. The petition and the application were contested by the owner and the insurer by filing replies. It was alleged by the insurance company that since the petition filed by claimants before the Motor Accidents Claims Tribunal was dismissed, the present petition under the Act was not maintainable. It was further alleged that the truck in question was not insured on 8.8.1986 but was in fact insured on 9.8.1986 after the accident and as such there was no valid cover note or valid insurance policy in respect of the vehicle in question at the time of the accident. It was also alleged that no case was made out for condoning the delay in filing the present petition.
4. After hearing both sides and also perusing the record, the Commissioner under the Act, framed the following issues:
(1) Whether the petitioner is entitled to compensation as alleged? OPP (2) Whether the deceased was employee of the respondent No. 1 and died in the course of his employment as alleged? OPP (3) Whether the petitioner is not entitled to file the claim petition under the Workmen 's Compensation Act? OPR-2 (4) Whether the petition is time-barred? OPR-2 (5) Whether the accidental vehicle No. HPS 7424 was not covered under valid policy? OPR-2 (6) Relief.
5. Both sides led evidence. After hearing both sides and perusing the record, the Commissioner under the Act decided the petition and awarded a sum of Rs. 76,000 besides interest and penalty in favour of claimants and against the owner and the insurer, jointly and severally. However, while passing the aforesaid order, the Commissioner under the Act had not decided the petition issue-wise nor referred to the aforementioned issues nor the delay in filing petition was condoned. Aggrieved against this order passed by Commissioner under the Act, the insurance company filed the present appeal in this Court.
6. At the time of arguments, no one was present on behalf of the claimants in spite of the notice.
7. I have heard the learned Counsel for the parties and have gone through the record carefully.
8. Learned Counsel appearing for the appellant insurance company submitted before us that the present petition before the Commissioner under the Act was not maintainable in view of the provisions of Section 110AA of the 1939 Act and Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the 1988 Act'). It was submitted that it was provided under the 1939 Act and the 1988 Act aforesaid that notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of or bodily injury to any person had given rise to a claim for compensation under the 1939 Act or 1988 Act aforesaid and also under Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of 1939 Act and 1988 Act, claim such compensation under either of those Acts, i.e., either under Motor Vehicles Act or under the Workmen's Compensation Act, but not under both. It has been submitted that in view of the aforesaid bar created under the Motor Vehicles Act, the present petition filed by claimants before the Commissioner under the Act, was not maintainable since claimants had already exercised their option by filing a claim petition before Motor Accidents Claims Tribunal under the 1939 Act. It was further submitted that the claim petition filed before the Commissioner under the Act was admittedly barred by time and an issue had already been framed in this regard but in spite of that, without condoning the delay in filing the present petition, the Commissioner under the Act had ordered the payment of Rs. 76,000 as compensation along with interest and penalty to the claimants. It was further submitted that since the vehicle in question was not insured at the time of accident on the morning of 9.8.1986 the appellant insurance company was not liable to pay compensation amount to the claimants. Lastly, it was submitted that in any case the appellant insurance company was not liable to pay the amount of penalty to the claimants, in view of the law laid down by the Hon'ble Supreme Court in the case of Ved Prakash Garg v. Premi Devi .
9. After hearing the learned Counsel for the parties and perusing the record, in my opinion, the present appeal has to be allowed and the order dated 15.12.1993 passed by the Commissioner under the Act has to be set aside.
10. Under Section 30 of the Act, it has been provided that an appeal shall lie to this Court from an order passed by the Commissioner under the Act awarding compensation, interest and penalty, etc. It is further provided therein that no appeal shall lie against any such order passed by the Commissioner under the Act "unless a substantial question of law is involved in the appeal...". Thus, keeping in view the provisions of Section 30 of the Act, the present appeal filed by appellant insurance company would lie only if any substantial question of law is involved in this appeal. One of the substantial questions of law framed by counsel for appellant and placed on record is as to whether the application under Workmen's Compensation Act was not maintainable and the Commissioner under the Act had no jurisdiction to try the case, in view of the provisions of Section 110-AA of the Motor Vehicles Act, 1939, once the claimant had exercised the option and had filed the claim petition under Section 110-A of the said Act, which was dismissed.
11. As referred to above, the accident in question had taken place on 9.8.1986 (wrongly stated as 8.8.1986 in the petition). Balak Ram deceased had died at the spot in the said accident. Thereafter on 18.2.1987 the present claimants Phulma, etc., had filed claim petition under Section 110-A of the 1939 Act against Bhagat Ram (owner) and New India Assurance Co. Ltd. (insurer), claiming Rs. 3,00,000 as compensation for death of Balak Ram deceased in the aforesaid motor vehicular accident. Motor Accidents Claims Tribunal, vide award dated 29.3.90 (copy Exh. PW 1/B) had dismissed the said petition holding that Balak Ram deceased was driving the truck in question at the time of the accident and that the owner or insurance company were not liable to pay the compensation amount to the claimants under the Motor Vehicles Act in the absence of specific pleadings in that regard. Resultantly, the claim petition was dismissed, with the following observations:
However, the claimants are at liberty to seek their grievances, if otherwise legally competent against the employer of the truck with whom late Balak Ram was working as a driver at the time of occurrence.
12. It was after dismissal of the aforesaid claim application by the Motor Accidents Claims Tribunal on 29.3.1990 that the claimants filed the present petition before the Commissioner under the Act on 25.7.1990 claiming Rs. 3,00,000 as compensation under the provisions of the Act and also seeking the condonation of delay in filing the petition. As referred to above, objections regarding maintainability of the petition and limitation were raised by the appellant insurance company in the written statement and the reply. It was thereupon that the aforementioned issues were framed by Commissioner under the Act, including issue No. 3 regarding the maintainability of the claim petition and the issue No. 4 regarding the petition being time-barred, besides other issues. As referred to above, the Commissioner under the Act had decided the claim petition vide order dated 15.12.1993 without referring to the issues framed in this case and without deciding the case issue-wise.
13. At the time when the accident had taken place on 9.8.1986 and the claimants had filed the claim application before the Motor Accidents Claims Tribunal under Section 110-A of the 1939 Act, the provisions of the 1939 Act were applicable. Section 110-AA of the 1939 Act reads as under:
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.
14. Subsequently, the 1939 Act was repealed and the 1988 Act was enacted by Parliament. The 1988 Act came into force w.e.f. 1.7.1989. Section 167 of the 1988 Act reads as under:
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.
15. From a perusal of Section 110-AA of the 1939 Act and Section 167 of the 1988 Act, it will be clear that where the claimant could file claim petition under the Workmen's Compensation Act as also under the Motor Vehicles Act for claiming compensation, the claimant could file the claim petition either under the Workmen's Compensation Act or under Motor Vehicles Act and not under both. In fact, the claimant has to exercise his option, to file the claim petition under the Workmen's Compensation Act or under the Motor Vehicles Act and the claimant could not be allowed to file the claim petitions under both the Acts.
16. In the present case, as referred to above, the claimants had filed claim petition under the 1939 Act as applicable at the relevant time. The said claim petition after full trial was dismissed by the Motor Accidents Claims Tribunal holding that the claimants were not entitled to any compensation under the provisions of the 1939 Act against Bhagat Ram (owner) and New India Assurance Co. Ltd. (insurer), since Balak Ram deceased himself was driving the truck at the time of the accident and the accident had taken place on account of rash and negligent driving of the truck by him. In my opinion, the claimants had exercised their option when they filed the claim petition on 18.2.1987 before the Motor Accidents Claims Tribunal under Section 110-A of the 1939 Act. However, the said petition filed by them under the 1939 Act was dismissed by the learned Tribunal vide award dated 29.3.1990 (copy Exh. PW 1/B). That being so, in my opinion, the present claimants would not be entitled to file the present petition under the provisions of the Act, after the dismissal of the claim petition before the Motor Accidents Claims Tribunal, in view of the bar created by Section 110-AA of the 1939 Act and Section 167 of the 1988 Act, referred to above. Merely because the Motor Accidents Claims Tribunal while dismissing the claim petition of the claimant had made the aforesaid observation that the claimants would be at liberty to seek their grievance if otherwise legally competent against the employer of the truck, in my opinion, would not give any right to the claimants to file the claim petition before Commissioner under the Act. As referred to above, learned Tribunal had given the liberty to claimants to seek their grievances 'if otherwise legally competent'. As referred to above, under the provisions of Section 110-AA of 1939 Act and 167 of 1988 Act, the present petition filed by the claimants before the Commissioner under the Act was not legally maintainable and as such, by virtue of the aforesaid liberty given by the Tribunal, it could not be said that claimants could file the present claim petition, since filing of the said claim petition was not legally competent in view of the aforesaid provisions of 1939 Act and 1988 Act.
17. In view of the detailed discussion above, the aforesaid substantial question of law, with regard to the maintainability of the claim petition before the Commissioner under the Act, is decided in favour of the appellant insurance company and against the claimants-respondents and it is held that the present claim petition filed by the claimants before the Commissioner under the Act was not maintainable.
18. Another substantial question of law framed by the counsel for the appellant insurance company was the question as to whether the Commissioner under the Act had the jurisdiction to make the award and to award compensation without condoning the delay or determining the question of limitation. In my opinion, in view of the earlier substantial question of law referred to above, which has been decided in favour of the appellant insurance company and against the respondents with regard to the maintainability of the claim petition, in my opinion, it is not necessary to decide the other substantial question of law with regard to limitation. Various other substantial questions of law raised by appellants also need not be gone into.
19. For the reasons recorded above, the present petition is allowed, order date 15.12.1993 passed by the Commissioner under the Act is set aside and the claim petition filed by the claimants is dismissed being not maintainable, with no order as to costs.