Kamla Devi and Others vs Rajkiya Coal Depot and Others

Dalip Singh, J.—This appeal arises out of the award dated 2.7.1988 passed by the Motor Accidents Claims Tribunal, Jaipur in M.A.C.T. Claim Case No. 76 of 1980 which was filed for compensation on account of the death of one Jagdish Prasad Sharma who died as a result of the injuries suffered by him in a motor accident which occurred on 21.1.1980. Learned Claims Tribunal awarded in all a compensation of Rs. 1,19,880. The appeal has been filed for enhancement of the compensation. However, the main plea of the appellant is that New India Assurance Co. Ltd., respondent No. 5, the insurer of the vehicle which was being driven by the deceased Jagdish Prasad Sharma and owned by Bheru Lal and Ratna Devi respondent Nos. 4 and 4 (a), respectively, has been absolved by the learned Tribunal of its liability to pay the compensation contrary to the evidence on the record.

The submission of learned Counsel for the appellants is that according to the policy of insurance, issued by New India Assurance Co. Ltd. which is admitted and is available at page 89 of the record of Tribunal, goes to show that in addition to the basic premium, additional premium was charged by the insurance company for coverage of the liability in respect of the driver. Therefore, the submission of the learned Counsel is that in accordance with the aforesaid additional premium having been charged by the insurance company, the insurance company was liable to pay the compensation in respect of the death of driver who was driving the vehicle bearing registration No. RRL 1387 which had been insured by it and was belonging to the insured Bheru Lal and Ratna Devi, respondent Nos. 4 and 4 (a) respectively. In this view of the matter, the submission of the learned Counsel for the appellants is that the learned Tribunal has erred in absolving the insurer of the vehicle.

In response to the aforesaid, learned Counsel Mr. Bardhar, appearing on behalf of the insurance company has submitted that even assuming that risk in respect of the driver has been covered by the policy under the cover note dated 4.6.1979 which was valid up to 3.6.1980 by charging additional premium in respect of the driver vide receipt No. 106803 dated 4.6.1979, unless and until there was negligence on the part of the driver, the insurance company would not be liable. Further submission of the learned Counsel for the insurance company is that appellant did not choose to file the claim under the Workmen''s Compensation Act, 1923 before the Commissioner but instead have chosen to file the claim before Motor Accidents Claims Tribunal under the provisions of Motor Vehicles Act, 1939 and, consequently, even though the liability of the driver was covered under the policy, the insurance company is not liable to pay the compensation. In the alternative also it has also been submitted that in case New India Assurance Co. Ltd., respondent No. 5, would be held liable then liability may be fixed only to the extent of the liability as prescribed under the Workmen''s Compensation Act, 1923.

I have given my anxious consideration on the submission made at the Bar. From the perusal of the cover note issued by New India Assurance Co. Ltd., respondent No. 5, in respect of the motor vehicle No. RRL 1387, which was being driven by the deceased as a paid employee for the respondent Nos. 4 and 4 (a) which met with an accident involving a truck bearing registration No. RJT 3497 insured with National Insurance Co. Ltd., respondent No. 3, was during the course of his employment and that option of choosing the forum for filing the claim in the event of an accident lies with the claimants. In this connection Section 110-AA of the Motor Vehicles Act is extracted as under:

110-AA. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen''s Compensation Act, 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 VII-A claim such compensation under either of those Acts but not under both.

A perusal of Section 110-AA of the Motor Vehicles Act, 1939 goes to show that option has been given to the claimants to choose either of two forums. The reply filed by New India Assurance Co. Ltd., respondent No. 5, also is relevant in this regard. In para 4 of the preliminary objections it has been stated by New India Assurance Co. Ltd. as under:

Yah ki kinhi bhi suksham karnon se manniya nayayalya is aashye par pahuche kee aprarthi sankhya 5 kee muaavja dene kee jimedari hai to aise sthiti mai bhi muaavja Workmen Compensation Act va beema policy kee shartaun ke anusar hee daiy hoga tatha prarthi uttardata ka dayitv Workmen Compensation Act ke tahat seemit hoga.

In this view of the matter, the limit of liability of the insurance company, respondent No. 5, would be limited to one under the Workmen''s Compensation Act, 1923 though the choice of forum lies with claimants.

Under the provisions of Workmen''s Compensation Act the limit of liability of New India Assurance Co. Ltd., respondent No. 5, is required to be determined under the provisions of Section 4 read with the Schedule IV of the said Act. The learned Tribunal assessed income of the deceased at the time of the accident in its award as Rs. 500 per month. As per the provisions of Workmen''s Compensation Act, 1923, 40 per cent of the said monthly income taking into account the age of the deceased which has been assessed as 27 years at the time of accident, 40 per cent of the salary (Rs. 500) would amount to Rs. 200 which then is required to be multiplied by 213.57 which is equal to Rs. 42,714. As per the aforesaid calculation the liability under the Workmen''s Compensation Act of New India Assurance Co. Ltd., respondent No. 5, would be Rs. 42,714 (rupees forty-two thousand seven hundred fourteen).

The submission of the learned Counsel for the respondent No. 5 is that no liability could be fastened unless and until the driver of the vehicle was driving the vehicles in question rashly and negligently can be accepted. As far as the liability of respondent No. 5 is concerned, the same is to be determined in respect of the policy of its insurer which has been taken to cover the risk in respect of the driver also by paying the additional premium. It is not a case of third party accident so far as respondent No. 5 is concerned but under the Workmen''s Compensation Act, 1923. Moreover, under the provisions of Section 3 of Workmen''s Compensation Act, 1923 it is only in cases where personal injury is caused by accident which has arisen out of and in the course of employment, the employer shall be liable to pay the compensation in accordance with the provisions of the Act which liability the insurer has taken to insure. Thus, this submission on the part of New India Assurance Co. Ltd., respondent No. 5, is liable to be rejected.

So far as liability in respect of National Insurance Co. Ltd., respondent No. 3, is concerned, in accordance with Section 95(2)(a) of the Motor Vehicles Act the liability being limited to the amount of Rs. 50,000, the award passed by learned Tribunal qua the respondent No. 3 remains intact and has not been challenged.

So far as New India Assurance Co. Ltd., respondent No. 5, is concerned, the appellant would be entitled to recover an amount of Rs. 42,714 (rupees forty-two thousand seven hundred fourteen) out of the total amount under the award from respondent No. 5 which is the insurer of the vehicle belonging to the respondent Nos. 4 and 4 (a) and which was being driven by the deceased Jagdish Prasad Sharma in the course of his employment.

In accordance with the provisions contained in Section 4-A Sub-section (3) Sub-section (a), the said amount of Rs. 42,714 (rupees forty-two thousand seven hundred fourteen) shall be paid with interest at the rate of 6 per cent per annum which was the rate of interest prevailing prior to 15.9.1995 when the Act was amended w.e.f. the date of default, i.e., one month after the date of accident. In this case the date of accident being 21.1.1980, the interest would be liable to be charged w.e.f. 21.2.1980 as per Section 4-A (3), i.e., within 1 month when the amount fell due, i.e., the date of the accident which is 21.1.1980. See Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, This appeal is accordingly disposed of.

There shall be no order as to costs.