Ch. Rani vs Shyamsunder Mandhani

Dr. B. Siva Sankara Rao, J.—The appellants-claimants in O.P. No. 127 of 2004 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Adilabad (for short ''the Tribunal''), are no other than the wife and four children, including one major daughter, preferred the appeal against the dismissal of the claim of Rs. 4,00,000/- under Sections 166 and 163A of Motor Vehicle Act, mainly on the ground from para 8 of the award, that it is not stated in the claim petition as to whether the petitioners made claim for compensation before the Workmen''s Compensation Tribunal under W.C. Act as required, though they can claim either before the W.C. Tribunal under W.C. Act or before the Motor Accident Claims Tribunal under M.V. Act and thereby the claim is not maintainable for no such say by giving liberty to move the Tribunal under W.C. Act.

The contentions in the grounds of appeal in nutshell are that the Tribunal erred in dismissing the claim contrary to law instead of awarding compensation under Section 163A of M.V. Act for which there is no need of any proof of rash or negligent act but for vehicle in use and the accidental death of the deceased there under and the Tribunal also failed to consider that the claimants can make claim either under M.V. Act or under W.C. Act, hence to set aside the dismissal order of Tribunal and to allow the claim by allowing the appeal.

At the hearing, the learned counsel reiterated the said contentions in saying the Tribunal ought to have considered the claim under W.C. Act in fixing the liability of the insurer in view of Section 167 of M.V. Act as per the settled expressions of the Apex Court. The 1st respondent-owner failed to contend despite having served and remained ex parte before the Tribunal. The 2nd respondent-insurer represented by counsel contended that the award of the Tribunal is just in dismissing the claim that too for no mention of the factum of no claim preferred under W.C. Act that is required to invoke Section 167 of M.V. Act for the option either to approach the Tribunal under W.C. Act or the Tribunal under M.V. Act and when given liberty to approach the Tribunal W.C. Act, for this Court while sitting in appeal there is nothing to interfere and hence to dismiss the appeal. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

Now the points that arise for consideration in the appeal are:

Whether the non-mention of the factum of claim not preferred before Workmen Compensation Tribunal is a bar to the maintainability of the claim under M.V. Act, in view of enabling provision and non-obscenity clause under Section 167 of M.V. Act and if so, with what observations and to what extent the insurer under the policy covered is liable as to claim under W.C. Act and with what compensation and rate of interest?

To what result?

POINT-1:

There is no dispute regarding the vehicle of the 1st respondent lorry bearing No. APIT 1581 is insured with 2nd respondent-insurer, even from the counter of 2nd respondent but for saying the deceased-driver of the vehicle of the 1st respondent met with accidental death by his careless driving. Even from this, it substantiates the claim that the deceased met with death accidentally in the course of employment as driver under the owner of the vehicle i.e., 1st respondent to cover the claim under W.C. Act as workman (Vide Section 2(a) of W.C. Act).

The Tribunal having found that the claim should have been the W.C. Act claim, though option is there, dismissed for non-mention of the factum of the claim not preferred already under the W.C. Act. The option available and the liability pursuant to the policy is fairly settled law of the Apex Court under Section 167 of the M.V. Act with non- obstante clause from expression in National Insurance Co. Ltd. Vs. Prembai Patel and Others, . In fact, in the recent expression of the Apex Court in Ramchandra Vs. Regional Manager United India Insurance Company Ltd., held that even the claim filed under M.V. Act but for to consider the liability under W.C. Act are unlimited from the risk covered by the policy of any contractual liability or act liability, the claim can be taken as under W.C. Act, so as to restrict by the M.V. Act. Section 167 of M.V. Act, speaks insurer is liable to the death of the employee of the insured in the course of employment and even as per the expression in Prembai Patel (supra).

No doubt, application of the principle to the factual matrix concerned, there is no dispute on the factum of no whisper made in the claim petition of no claim preferred under W.C. Act in exercise of the option under the M.V. Act invoking the Section 167 of M.V. Act. There is no mention, even evidence in this regard from the mouth of P.W. 1, the sole witness, to the claim except placing reliance upon Exs. A1 to A4 viz., FIR, inquest salary certificate and driving license. Undisputedly, even from the counter of insurer for owner remained ex parte, it is not a case of any claim already preferred under W.C. Act. It is the submission, across the bar from the grounds of appeal, last ground that the claim can be taken under M.V. Act to award the compensation restricting to W.C. Act liability against the insurer for the remaining on the insured. Even in the grounds, there is no such whisper of no claim preferred under W.C. Act. Undisputedly, no claim preferred. When such is the case, the endorsement of no claim preferred under W.C. Act is assurance for the Court and mere non-making of such endorsement itself cannot not-suit the claimants in the factual scenario for no dispute on the factum of no claim preferred under W.C. Act.

Having regard to the above and following the principle of law laid down in the judgments referred to above and from the grounds of appeal urged to take claim under Section 163A of M.V. Act, even no option exercised much less from the commencement of trial, from both provisions mentioned under Section 163A and 166 of M.V. Act, the claimant can choose or the Tribunal can consider as per the Division Bench expression of this court in Bhupati Prameela and others vs. Superintendent of Police, Vizianagaram 2010 (4) ALD 531 (DB), thereby, the claim is taken under Section 167 read with 163A of M.V. Act to restrict the liability of the insurer to the extent of W.C. Act liability. It is also from the fact that when the driver of the vehicle, i.e., deceased met with death in the course of employment, the factum of accident whether due to his negligence is immaterial to the W.C. Act claim. Thereby, the claim is maintainable.

Now, coming to the compensation regarding age of the deceased, no PME report is filed. Ex. A4 driving license shows date of birth even legible at best to make out as 10.06.1968. The accident was dt. 28.10.2003 and to say the deceased was above 35 years, where as the age of the 1st claimant shown as 33 years and 2nd claimant, eldest daughter shown major about 18 years and the age mentioned of the deceased in the claim petition is 35 years. From this, to say said date of birth of the deceased given in driving license is not correct but for to take the age of the deceased from their own say of the claimants in the claim of 37 years and as per the Schedule IV read with Section 4 of W.C. Act for a person aged 37 years, the factor applicable is 192.14. Coming to the earnings of the deceased, Ex. A3 is salary certificate issued by Balaji Transport, but there is no other record filed in proof of earnings and salary even disputed by the insurer from the cross-examination of P.W. 1 regarding genuineness of Ex. A3 but even taken the earnings of the deceased being lorry driver at a minimum of Rs. 4,400/- per month as on the date of accident including prospective earning capacity and as per Section 4(1)(a) of the Workmen''s compensation Act, for assessing the loss of income, half of the monthly wages of the deceased, is to be multiplied by the relevant factor i.e., Rs. 2200/- (Rs. 4400 X 50%), and it comes to Rs. 4,22,708/- (Rs. 2,200 X 192.14) and what the claimants claimed is only Rs. 4,00,000/- and is thereby just to award Rs. 4,00,000/- with interest @ 7.5% per annum from the date of appeal. Accordingly point No. 1 is answered.

POINT-2:

Accordingly, in the result the appeal is allowed setting aside the dismissal award of the Tribunal, awarding the claim as prayed for of Rs. 4,00,000/- (Rupees Four lakhs) with interest @ 7.5% p.a. from the date of appeal till the date of realization with joint and several liability of the respondents 1 and 2. The Respondents shall deposit said compensation within one month with interest from the date of service of award, failing which the claimants can execute and recover. Out of said compensation, 1st claimant is entitled to 2/6th share and the remaining claimants 1/6th share each. They are at liberty to move the Tribunal for any permission for withdrawal. There is no order as to costs in the appeal.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.