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22. Counsel for respondents submitted that the claim is made against the owner of the vehicle and in turn a decree is sought against the insurer of the owner, since the owner is negligent. Further, it was contended that even if the claimants are not in a position to prove negligence on the part of the owner, if the driver is not negligent and the driver lost his life in an accident involving the use of the motor vehicle, the owner is liable. The second part of the submission or contention can be termed as a peculiar kind of absolute liability within the vista, stretch and reach of tortious liability on the part of the owner when the vehicle is used. This aspect of the matter has been elaborately considered by the Bombay High Court in Marine and General Ins. Co. Ltd. v. Dr. Balakrishna Ramachandra Nayan 1976 ACJ 288 (Bombay) and the Bombay High Court took the view that the Act provides liability arising out of the use of the motor vehicle and if one person suffers any loss, which has to be compensated and if that loss is occasioned on account of the use of the vehicle in spite of lack of negligence on the part of any person, the owner of the vehicle is liable.

29. In Marine & Genl. Ins. Co. Ltd. v. Dr. Balkrishna Ramachandra Nayan 1976 ACJ 288 (Bombay), a Division Bench of the Bombay High Court had occasion to consider the nature of the liability of the defendant in a case where compensation is claimed as a result of the injury suffered by the use of a motor vehicle. The two learned Judges wrote separate judgments. Though this judgment was appealed against and confirmed by the Supreme Court, the principle laid down in this judgment was heavily criticised and expressly dissented by the Supreme Court. A novel approach in regard to the foundation of the liability to compensation for a victim was enunciated by the learned Judges of the Bombay High Court. The claims for compensation in accidents caused by motor vehicles have been made the subject-matter of a particular statutory provision. But, the right to claim compensation was left under the law of Torts. This was seriously doubted by the Bombay High Court. The Division Bench, considering a catena of decisions, came to the conclusion that the provisions of the Act, though seemingly procedural in nature, are substantive in character and conferred rights on the victims of motor accidents. Further, the Division Bench said a tortious liability generally arises on the basis of a default in not taking care of a duty, which a person owes to the general public or to individuals and always required an element of fault, which was later on considered to be, in the circumstances of accident cases, as negligence. The Supreme Court did not agree with this theory. There was conflicting view as regards the fundamental theory regarding tortious liability. We do not want to go into that question elaborately, but we would like to refer to one decision of Lord Denning, articulating a novel approach. In Dutton v. Bognor Regis United Building Co. Ltd. (1972) 1 All ER 462, Lord Denning, M.R. observed:

36. Counsel for the respondents submitted that the obiter dictum of the decision in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC), should be tested in the light of the observations contained in M.K. Kunhimohammed v. PA. Ahmedkutty 1987 ACJ 872 (SC). Certainly, the obiter dictum of the Supreme Court is binding on this Court. Bearing that in mind before considering the decision reported in M.K. Kunhimoltammed v. PA. Ahmedkutty 1987 ACJ 872 (SC), we shall advert to certain other decisions which may support the case of a statutory liability quite independent of a tortious liability.

52. The statute (Motor Vehicles Act) gives an option to the injured or the legal representatives of the deceased workman, to approach the Claims Tribunal under the Workmen's Compensation Act for determination of compensation. The remedy is either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both. There are certain decisions which have taken the view that when once the workman or the legal representatives of the deceased workman has/have opted the forum of the Claims Tribunal under the Motor Vehicles Act, he/they cannot have recourse before the authority under the Workmen's Compensation Act. Anyhow, the insurer is liable to indemnify the owner if he is found liable to pay any amount either under the Workmen's Compensation Act or under the Motor Vehicles Act. The provision giving option, viz., Section 110-AA did not and shall not contemplate negligence as a necessary integrant for claiming compensation by a workman. It only gives the workman or the legal heirs of the deceased workman a different forum. This is also an aspect to be considered in determining the question whether all the ingredients to fasten the liability in a tortious act are necessary for attracting the liability to pay compensation by an owner to his workman who happened to be a victim of a motor accident, without his negligence. When the option is given to an injured workman or to the legal representatives of the deceased workman to claim a just compensation under Section 110-B of the Act, it is possible to say that the question of negligence is not there, unless and until it creates a defence to the owner to escape the liability. We are of opinion that accepting that part of the principle laid down by the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nay an 1977 ACJ 118 (SC), the owner is liable to compensate the driver on the principle that he has failed to discharge a duty cast on him by law and also on the principle that the owner is liable to the legal representatives of a deceased workman, if the workman dies in the course of employment, not on account of his negligence.