Karnataka High Court
United India Insurance Co Ltd vs Smt Lalitha Rathan on 15 March, 2017
Author: B.Manohar
Bench: B. Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. MANOHAR
M.F.A. No.4286/2011(MV)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
MANGALURU DIVISIONAL OFFICE,
THROUGH ITS REGIONAL OFFICE,
5TH & 6TH FLOORS, KRISHIBHAVAN
HUDSON CIRCLE,
BENGALURU - 560 001
REPRESENTED BY ITS
DIVISIONAL MANAGER. ...APPELLANT
(BY SRI JANARDHAN REDDY, ADVOCATE)
AND:
1. SMT. LALITHA RATHAN
W/O SRI LATE RATHAN KUMAR RAO
@ RATHAN KUMAR
AGED ABOUT 45 YEARS.
2. DIVYA RAO
D/O SRI LATE RATHAN KUMAR RAO
@ RATHAN KUMAR
AGED ABOUT 25 YEARS
BOTH ARE RESIDING AT SEETHA HOUSE
ACHADA POST, YENEGUDDE VILLAGE,
2
KATPADY,
UDUPI DISTRICT.
3. THE PROPRIETOR N.C. RAIL LINKS
MARSHALING YARD, NMPT,
PANAMBUR MAIN OFFICE,
MANGALURU TALUK.
4. SMT. SHIVANI RAI
W/O SRI LATE RATHAN KUMAR RAO
@ RATHAN KUMAR
AGED ABOUT 52 YEARS
5. DIVYA RAI
D/O SRI LATE RATHAN KUMAR RAO
@ RATHAN KUMAR
AGED ABOUT 23 YEARS
6. RISHITH RAI
D/O SRI LATE RATHAN KUMAR RAO
@ RATHAN KUMAR
AGED ABOUT 20 YEARS
R-4 TO R-6 R/AT NAGRIGUTHU HOUSE
SAJIPA MOODDA VILLAGE
BANTWAL TALUK.
...RESPONDENTS
(BY SRI PRASAD, ADV., FOR R1 & R2
R3 SERVICE HELD SUFFICIENT
VIDE ORDER DATED 13.10.2015
R4 & R5 SERVED, UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED:07.02.2011 PASSED
IN MVC NO.1799/2006 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, MEMBER, MACT, D.K., MANGALURU,
AWARDING A COMPENSATION OF Rs.3,29,500/- WITH
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INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The United India Insurance Company Limited has filed this appeal challenging legality and correctness of the judgment and award dated 07.02.2011 passed in MVC No.1799/2006 by the Motor Accident Claims Tribunal, D.K., Mangaluru (hereinafter referred to as 'Tribunal'), fastening the liability on them to compensate the claimants.
2. The facts leading to filing of this appeal is as under:
Respondent Nos.1 and 2 herein filed a claim petition under Section 163 A of the Motor Vehicles Act, contending that husband of the first claimant and father of the second claimant deceased-Rathan Kumar Rao, while he was proceeding in a motorcycle bearing registration No.KA-19/L- 6658 belonging to the 3rd respondent herein towards Panambur, near junction Panambur Railway Station Road, 4 due to the rash and negligent riding of motorcycle bearing registration No.KA-06/H-3114 by its rider came from opposite direction and dashed against the motorcycle of the deceased. Due to which, the deceased fell down and sustained grievous injuries all over the body and immediately he was shifted to A.J. Hospital, Mangaluru, however, during the course of treatment he died on 08.10.2005 at about 7.25 a.m. In the claim petition it was contended that the deceased was working as a Project Manager at N.C. Rail Links, NMPT Panambur, Mangaluru and getting income of Rs.40,000/- per annum at the time of accident, he was aged about 50 years and he was the only bread earner in the family. Therefore, they sought for compensation of Rs.10,00,000/-.
3. In response to the notice issued by the Tribunal, the 2nd respondent-Insurance Company filed written statement denying the entire averments made in the claim petition and contended that due to the rash and negligent riding of the motorcycle by the deceased, the accident occurred. The rider 5 of the offending motorcycle has no valid and effective Driving License as on the date of accident. No document has been produced to show that the claimants are the wife and daughter of deceased Rathan Kumar Rao. The specific contention of the Insurance Company is that respondent Nos.3 to 5 are the wife and children of the deceased Rathan Kumar Rao and they have already filed a claim petition under the Employees Compensation Act. Hence, the present claim petition filed by the claimants under the provisions of Motor Vehicles Act is not maintainable.
4. The 1st respondent remained unrepresented and hence, placed as exparte before the Tribunal.
5. Respondent Nos.3 to 5 filed their written statement contending that they are wife and children of the deceased Rathan Kuamr Rao and the claimants in this claim petition are not the wife and daughter of the deceased. Hence, sought for dismissal of the claim petition.
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6. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
7. The claimants in order to prove their case, the first claimant got examined herself as PW1 and eye-witness to the accident was examined as PW2 and got marked the documents as Ex.P1 to Ex.P14. On behalf of the respondents none of the witnesses have been examined. However, got marked the documents as Ex.R1 to Ex.R5 to show that respondent Nos.3 to 5 have filed a claim petition under Employees Compensation Act.
8. The Tribunal, after appreciating oral and documentary evidence let in by the parties and taking into consideration Spot Mahazar, IMV Report, copy of Complaint and Sketch and the Charge sheet has held that the accident occurred due to the actionable negligence on the part of rider of the offending motorcycle and husband of the 1st claimant died due to the injuries sustained in the said accident. The claimants, as well as respondent Nos.3 to 5 compromised the matter stating 7 that the compensation may be awarded to both the claimants as well as respondent Nos.3 to 5. On the basis of the said compromise memo filed by the parties the Tribunal assessing the income of the deceased at Rs.4,000/- per month, deducting 1/3rd towards his personal expenses and applying the multiplier of 12 as he was aged about 50 years at the time of accident has awarded the compensation at Rs.3,20,000/- towards loss of dependency and Rs.9,500/ under conventional heads. In all Rs.3,29,500/- with interest at 6% per annum from the date of petition till realization fastening the liability on the Insurance Company. The Insurance Company being aggrieved by the said judgment and award passed by the Tribunal fastening the liability of them to compensate the claimants, has filed this appeal.
9. Sri Janardhan Reddy, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. The wife and children of the deceased Rathan Kumar Rao had already filed a claim 8 petition before the Commissioner of Employees Compensation in WC No. 21/2007 seeking compensation for the death of the Rathan Kumar Rao during the course of employment. The Tribunal after appreciating the oral and documentary evidence has awarded compensation of Rs.3,06,180/- as per the judgment dated 14.01.2011. However, the claimants again filed one more set of claim petition seeking compensation under M.V. Act. There is clear bar under Section 167 of M.V. Act to claim compensation both under Employees Compensation Act as well as under the Motor Vehicles Act. They have to choose either the Employees Compensation Act or the Motor Vehicles Act. Further, in the claim petition filed by the claimants before the Commissioner, the claimants herein got impleaded as the parties and defended the said claim petition. The Commissioner after appreciating the contention taken by the claimants herein has awarded compensation to the 2nd respondent herein and rejected the claim of the 1st respondent holding that she was second wife of the deceased and she is not entitled to claim 9 compensation. That order of rejection of compensation in favour of the first respondent herein in W.C.No.21/2007 is not questioned before any other Court. The said order has become final. Hence, the Tribunal ought not to have awarded compensation to the claimants before it. Further, the document has been produced before the Tribunal to show that the claim petition has been filed before the Commissioner, Employees' Compensation seeking compensation for the death of Rathan Kumar Rao, and the present claim petition filed before the Tribunal is not maintainable, the Tribunal overlooking the materials available on record has passed the impugned judgment and award which is contrary to law and liable to be set aside by this Court.
10. On the other hand, Sri Prasad, learned counsel appearing for respondent Nos.1 and 2 argued supporting the judgment and award passed by the Tribunal and contended that the Commissioner, Employees' Compensation has not 10 awarded any compensation to the first claimant in the W.C.No.21/2007. Hence, they approached the Tribunal under the M.V. Act seeking compensation. Further, the compensation claimed before the Commissioner is under some other policy whereas the compensation claimed under the M.V. Act is under Section 166. Hence, there is no bar to claim compensation under the Motor Vehicles Act. Therefore, the Tribunal after considering entire aspect of the matter allowed the claim petition. Since the Insurance Company has not taken any such contention regarding maintainability of the claim petition before the Tribunal, now they cannot urge new ground in this appeal. There is no infirmity and illegality in the said judgment and award and sought for dismissal of the appeal.
11. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
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12. The main contention of the appellant is that the claimants cannot seek compensation both under the Employees Compensation Act as well as under the Motor Vehicles Act since there is clear bar under Section 167 of the Motor Vehicles Act, whereas, the claimants have contended that they have not filed any claim petition seeking compensation under the Employees Compensation act. Further, though they were impleaded as parties to the proceedings before the Commissioner for Employees Compensation, the Commissioner has not awarded any compensation in favour of the first claimant. Hence, they can maintain the claim petition under the Motor Vehicles Act.
13. The records clearly disclose that immediately after the death of Ratan Kumar Rao, respondents 4 to 5 herein filed a claim petition under the Employees Compensation Act in W.C.21/2007 seeking compensation, claiming that the deceased Ratan Kumar Rao died during the course and out of employment. He was working as a Project Manager under the 12 3rd respondent. In the proceedings before the Commissioner, the claimants herein got impleaded as Respondent Nos.4 and 5 and they also claimed that they are the wife and daughter of deceased Ratan Kumar Rao. The Commissioner after examining the matter in detail held that Ratan Kumar Rao died during the course and out of employment, claimants and respondents 4 and 5 in W.C.21/2007 are the wives and children of the deceased Ratan Kumar Rao. However, the Commissioner awarded compensation in favour of claimants 1 and 2 along with Respondent No.5, and rejected the claim of Respondent No.4/Smt.Lalitha Ratan, since, during the subsistence of the first marriage, second wife cannot claims to be the wife of the deceased. The said order has become final. Inspite of the same, the claim petition has been filed under Section 163A of the Motor Vehicles Act seeking compensation for the death of Ratan Kumar Rao.
14. Section 167 of the Motor Vehicles Act reads as under:
167. Option regarding claims for compensation in certain cases.-13
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 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. Reading of the above provision makes it very clear that option has been given to the claimants to seek compensation either under the Employees Compensation Act, 1923 or under the Motor Vehicles Act, 1988. They cannot file a claim petition under the provisions of both the Acts. The persons, once they avail the remedy under the Employees Compensation Act 1923, they are precluded to seek compensation under Section 167 of the Motor Vehicles Act.
16. The Hon'ble Supreme Court in a judgment reported in the case of NATIONAL INSURANCE COMPANY v/s MASTAN AND ANOTHER reported in (2006) 2 SCC 641 clearly held that Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in 1923 Act. Paragraph 23 of the judgment reads as under: 14
23. The "doctrine of election" is a branch of "rule of estoppel", in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both.
Although there are certain exceptions to the same rule but the same has no application in the instant case.
17. The Hon'ble Supreme Court in another judgment reported in 2013 ACJ 709 in the case of ORIENTAL INSURANCE COMPANY LIMITED v/s DYAMAVVA AND OTHERS held that option has been given to the claimants to claim compensation either under the Employees Compensation Act or under the Motor Vehicles Act and the claimants are not allowed to avail dual benefit under the two enactments. Further, the Hon'ble Supreme Court in the judgment reported in AIR 2005 SC 2337 in the case of NATIONAL INSURANCE COMPANY v/s PREMBAI PATEL AND OTHERS held on the similar lines.
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18. In the case on hand, on the death of Ratan Kumar Rao, the first wife and her two children filed a claim petition under the provisions of Employees Compensation Act claiming that the deceased died during the course and out of employment. In the said proceedings, respondents 1 and 2 herein got impleaded as parties and sought for apportionment of the compensation. The Commissioner rejected the claim of the first respondent herein and awarded compensation to the second respondent herein. Hence, respondents 1 and 2 herein cannot maintain one more claim petition under the Motor Vehicles Act seeking compensation under Section 163A of the Motor Vehicles Act. The judgments of the Hon'ble Supreme Court are squarely applicable to the facts of the case on hand. The Commissioner, while examining the claim of the first wife and children as well as respondents 1 and 2 herein held that the second wife as such is not entitled for compensation. However, the second respondent herein is the daughter born to the first respondent and the deceased Ratan Kumar Rao, she is entitled for compensation and awarded 16 compensation. The said judgment and order has not been challenged by the first respondent herein and that order has become final. Hence she cannot file one more claim petition seeking compensation under the Motor Vehicles Act. Even though the parties have compromised, they are not entitled to claim compensation both under the Employees Compensation Act as well as under the Motor Vehicles Act. The Tribunal has not examined the contention taken by the insurance company during the course of evidence. The Tribunal over- looked the insurance policy, copy of the claim petition filed before the Workmen's Compensation Commissioner, copy of the written statement and copy of the depositions made available to it. In view of the settlement arrived at between the claimants and respondents 3 to 5, awarded compensation, which is contrary to law.
19. As stated earlier, there is clear bar under Section 167 of the Motor Vehicles Act to claim compensation both under the Employees Compensation Act as well as Motor Vehicles Act 17 for the death of Ratan Kumar Rao. Hence, the judgment and award passed by the Tribunal cannot be sustained. Accordingly, I pass the following:
ORDER The appeal is allowed. The judgment and award dated 07-02-2011 made in MVC No.1799/2006 passed by the Motor Accident Claims Tribunal, Mangalore, D.K. is set aside.
The amount in deposit is directed to be refunded to the appellant.
Sd/-
JUDGE mpk/-*