National Insurance Co. Ltd. vs Pushpa Devi and Others

R.L. Khurana, J.—Whether in a claim petition preferred u/s 166 of the Motor Vehicles Act in respect of a workman who has died in a motor vehicle accident during the performance of his duties, the liability of the insurer is limited to the liability arising under Workmen''s Compensation Act, 1923?-Is the question involved in the present appeal arising out of the award dated 13.5.1997 of the learned Motor Accidents Claims Tribunal (III), Kangra at Dharamshala (for short, ''the Tribunal'').

The facts of the case giving rise to the present appeal, briefly, may be thus stated. The deceased Subhash Chand was employed as a driver by respondent No. 5 Devinder Kumar Sood, the owner of the truck No. HIK 5121. On 18.4.1994 the deceased was driving the said truck, which was loaded with sand. The truck was proceeding from Bhatoli to Bhaggi. At about 11.30 p.m. at Khola Bohan, on Ranital-Jawalamukhi Road all of a sudden the right front tyre of the truck burst and as a result of which the truck turned turtle and the deceased sustained multiple grievous injuries. The deceased was immediately taken to Zonal Hospital, Dharamshala, where he succumbed to the injuries on the following day.

Respondent Nos. 1 to 4, who are the parents, sister and brother of the deceased, approached the learned Tribunal seeking compensation for the death of the deceased. They averred that the accident was as a result of negligence of the respondent No. 5, the owner of the truck since instead of new tyres, he had used old retreaded tyres for plying the truck. Though the deceased had objected to the use of such old retreaded tyres respondent No. 5 did not pay any heed and insisted the deceased to drive the truck with retreaded tyres.

Respondent No. 5, the owner of the truck, while resisting the petition admitted the ownership of the truck and the deceased having been employed by him as a driver. He also admitted the accident and the death of the deceased. He pleaded that since the accident was as a result of rash and negligent driving of the deceased himself, who was heavily drunk at the relevant time, he was not liable for compensation. It was also pleaded that the truck was in a good and perfect running condition. The fact that the front right tyre had burst all of a sudden was also denied.

Appellant insurance company, the insurer of the vehicle, who was impleaded as respondent No. 2 in the claim petition, pleaded that the deceased was not holding a valid and effective driving licence to drive heavy vehicles. It further pleaded that since the deceased himself was driving the vehicle and the accident was due to rash and negligent driving on his part, the claim petition was not maintainable.

The learned Tribunal held that the accident was due to sudden bursting of tyre. The owner, that is, respondent No. 5 was negligent in maintaining the truck in good condition inasmuch as he permitted the use of the tyre which was in a very poor and bad condition. The learned Tribunal accordingly by holding the claim petition to be maintainable and that the deceased was holding a valid and effective driving licence allowed compensation amounting to Rs. 1,74,000 along with interest at the rate of 12 per cent per annum from the date of the petition till the date of payment in favour of the respondent Nos. 1 to 4. The owner of the truck, respondent No. 5 and the appellant insurance company being the insurer of the offending truck were held jointly and severally liable and accordingly, the insurer, who was to indemnify the owner, was called upon to pay/deposit the amount of compensation along with interest within 30 days of the making of the award.

Being aggrieved and dissatisfied with the award, the insurer is before this court by way of the present appeal.

There is no dispute that Section 167, Motor Vehicles Act, 1988 (corresponding to Section 110-AA of the Motor Vehicles Act, 1939) gives an option to a workman or his legal representatives to sue the owner of the motor vehicle either under the Workmen''s Compensation Act, 1923, or file claim against him under the provisions of the Motor Vehicles Act, 1988, in the following terms:

"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."

The only contention raised on behalf of the appellant is that the learned Tribunal has erred in fixing its liability to the extent of the whole amount of the compensation awarded. It was contended that since the deceased was a ''workman'' having been employed as a driver by the owner of the truck, the liability of the appellant was limited to the extent of the amount of compensation payable under Workmen''s Compensation Act, 1923. The balance amount of compensation awarded is to be paid by the owner of the truck.

The learned counsel for the appellant in support of his contention has placed reliance on two decisions of the Orissa High Court in Oriental Insurance Co. Ltd. Vs. Guru Charan Saren and Another, and in Oriental Insurance Co. Ltd. Vs. Chandra Panigrahi (Smt.) and Others, In both these cases it has been held that a claimant, who is a workman or a legal representative of a workman has choice to approach either the Commissioner under the Workmen''s Compensation Act or the Tribunal under the Motor Vehicles Act. When he approaches the Tribunal under the Motor Vehicles Act, the quantum of compensation available to him would not be limited to that which would be available under Workmen''s Compensation Act, However, the insurer would be liable to the extent of compensation payable under the Workmen''s Compensation Act and the owner would be liable to pay the balance. In coming to the above conclusions the learned single Judges had followed the decision of the Division Bench of the same High Court in Orissa State Road Trans. Corporation v. Shankar Sahu 1989 ACJ 867 .

It may be noticed that the question involved in Orissa State Road Transport Corporation v. Shankar Sahu 1989 ACJ 867 before the Division Bench was--whether amount of compensation award-able under Motor Vehicles Act in respect of a workman who had sustained injuries in the course of his employment in a motor vehicle accident, could not be more than what was payable to him under the provisions of Workmen''s Compensation Act, 1923. Such question was answered in the negative by the Division Bench and it was held that in determining the just compensation payable under the Motor Vehicles Act, the Claims Tribunal is not bound to confine the amount of compensation to the Schedule in the Workmen''s Compensation Act. The Claims Tribunal under the Motor Vehicles Act can award compensation under the Workmen''s Compensation Act, which it considers to be just.

The question as to the extent of liability of the insurer was neither involved in the case before Division Bench nor such question was gone into and determined.

In Suresh Chandra Vs. State of U.P. and Another, amount of compensation awarded to a workman who had sustained grievous injuries during the course of his employment in a motor vehicle accident resulting in amputation of his right leg was reduced by the learned single Judge of the Allahabad High Court from Rs. 1,45,000 to Rs. 85,000 on the ground that the claimant/workman would have secured only Rs. 85,000 by way of compensation if he had moved the Commissioner under Workmen ''s Compensation Act. The Apex Court in appeal set aside the judgment of the High Court and restored the award of the Claims Tribunal awarding compensation amounting to Rs. 1,45,000 in favour of the claimant/workman.

Section 147 of the Motor Vehicles Act, 1988, insofar as it is relevant for the purpose of the present case provides:

"Requirements of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability."

Dealing with a similar question and the provisions contained in Section 95 of Motor Vehicles Act, 1939 (corresponding to Section 147 of the Motor Vehicles Act, 1988, quoted above) a Division Bench of Andhra Pradesh High Court in Mandulova Satyanarayana Vs. Bodiredoy Lokeshwari and others, has held:

"(7) In this provision there is nothing to indicate that when a liability is passed on to the insurer, the extent of liability should not extend beyond what is provided in the Workmen''s Compensation Act. The above said provision accepts the requirement of a policy in the cases contemplated thereunder and it has also not excluded the insurer from entering into a contract of indemnity to cover circumstances and conditions countenanced by the provision. Because of statutory entitlement, an employee or his legal representatives are entitled to exercise option u/s 110-AA to sue the owner of the motor vehicle either under Workmen''s Compensation Act or file the claim against him under the Act as contemplated under sections 110 and 110-A. There is nothing in the aforementioned section to suggest that when a liability is taken by the insurer there under the extent of liability in such a case would be limited to that as allowed under the Workmen''s Compensation Act, What is said u/s 95 is only the nature of the liability and not the extent of the liability. The section itself is captioned as ''Requirements of policies and limits of liability''. The proviso shows that the policy shall not be required to cover the liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee other than the liability arising under the Workmen''s Compensation Act. It is an exception to an obligation of taking a policy in respect of the liability arising under the Workmen''s Compensation Act. But where an agreement was entered into and a policy is taken under which the company undertakes the liability prescribing a limit, it is bound by the policy. Otherwise, the provisions of the Motor Vehicles Act empowering the persons to claim compensation either under the Motor Vehicles Act or under Workmen''s Compensation Act would be defeated. The provisions contained in Section 110-AA are beneficial and intended to enable the workman or legal representatives of the deceased workman to claim higher compensation if the same can be awarded either under the Motor Vehicles Act or under the Workmen''s Compensation Act. If the liability of the insurance company is restricted to that specified under Workmen''s Compensation Act, the object of Section 110-AA or Motor Vehicles Act would be frustrated..."

A Division Bench of the Madhya Pradesh High Court in Oriental Insurance Company Ltd. Vs. Sudha Devi and Others, also while dealing with a similar question has held that if the claimants elect to claim compensation under the Motor Vehicles Act, it is not open to the Tribunal to fasten the liability on the owner, driver and insurer on the basis of the liability created under the Workmen''s Compensation Act and that the claimants would be entitled to get the entire compensation as determined for the death of a workman/ person in accident arising out of the use of the motor vehicle. The contention of the appellant insurance company that its liability was to the extent of the amount payable under the Workmen''s Compensation Act was rejected and it was directed and called upon to pay the entire amount of compensation along with interest determined under the provisions of the Motor Vehicles Act.

In United India Insurance Co. Ltd. Vs. Siman Juje Borges and Others, it has been held by a Division Bench of the Karnataka High Court that Motor Vehicles Act, 1939 and the Workmen''s Compensation Act, 1923 operates in their respective fields distinct and different from each other. Section 110-AA of the Motor Vehicles Act, 1939 (which corresponds to Section 167 of the Motor Vehicles Act, 1988) gives an option to claim compensation under either of the enactments and not both. With the choice left to the victim or his dependants in case of death, that choice must be exercised and once so exercised, the Act under which they pursue the remedy must decide the quantum of compensation in accordance with the facts of the case.

In Tara Chand v. Chokali 1989 ACJ 802 a number of labourers, who were employed as such on the truck for the purpose of loading and unloading stones, were killed in the accident involving the truck in which they were travelling. The claimants, that is, the legal representatives of the deceased labourers, approached the Tribunal under the Motor Vehicles Act seeking compensation. The Tribunal awarded compensation amount at Rs. 9,720 in respect of each deceased by taking into consideration the maximum limit as provided in the Schedule to the Workmen''s Compensation Act, 1923, as the amount payable under Motor Vehicles Act. On appeal a learned single Judge of the Rajasthan High Court by holding that the Schedule to the Workmen''s Compensation Act could not be applied and that the Tribunal was obliged to determine the amount of compensation which appeared to it to be just amount to be paid under the provisions of Motor Vehicles Act, assessed the compensation at Rs. 16,200 in respect of each victim and the insurance company, namely, the insurer of the offending truck was held liable to pay the entire amount of compensation in respect of each victim. In other words, the liability of the insurer was not limited to the extent of the amount payable under Workmen''s Compensation Act, 1923.

I am in whole-hearted agreement with the ratio laid down by the High Courts of Andhra Pradesh, Madhya Pradesh, Karnataka and Rajasthan and it is held that once the claimant (workman or in case of his death, his legal representative) has elected to approach the Tribunal under the Motor Vehicles Act for compensation, the liability of the owner or driver or insurer of the offending vehicle cannot be and is not limited to the extent of liability arising under the Workmen''s Compensation Act, 1923. The owner, driver and/or the insurer of the vehicle are liable to the extent of compensation as assessed by the Tribunal unless there is some agreement to the contrary.

In the present case, admittedly, there is no limit to the liability of the appellant as per the terms of the insurance policy. Therefore, the appellant is liable to pay the amount of compensation to the respondent Nos. 1 to 4 as awarded by the learned Tribunal.

Resultantly, there being no merit in the appeal, the same is dismissed, leaving the parties to bear their own costs.