New India Assurance Co. Ltd. vs Koshalya Devi and Others

Mansoor Ahmad Mir, Judge

This Civil First Miscellaneous Appeal is directed against the judgment and award dated 19.08.2002 passed by Motor Accidents Claims

Tribunal, Rajouri in File No. 9/Claim, titled as Koshlya Devi & others vs. Sudershan Kumar & anr., (for short, impugned award), whereby an

award of Rs. 5,39,000/- along with 9% interest came to be awarded in favour of claimants and against the appellant/respondents from the date of

filing of the claim petition till its realization, on the grounds taken in the memo of appeals. It is profitable to give flashback of the case, the womb of

which has given birth to the instant appeal.

Claimants-respondents 1 to 4 filed a claim petition before the Motor Accidents Claims Tribunal, Rajouri claiming compensation to the tune of

Rs. 10,35,000/- as per the break-ups given in para-12 the claim petition. It is averred in the claim petition that on 18.04.1998 one Ram Parkash,

driver of the offending Bus, bearing registration No. JK02R-3928, while driving the same to Moghla from Sunderbani when negotiated a turn at

Siot Morh, the steering of the bus got out of order, as a result of which it fell into nallah and the driver died due to the said accident. The

respondents-claimants were dependants on the deceased, who was their sole bread earner and have lost the source of dependency.

The appellant-insurer appeared and contested the claim petition on the grounds taken in the memo of reply. Owner-respondent-5 has chosen to

remain absent and, accordingly, exparte proceedings were drawn against him. The following issues came to be framed.

Whether the accident has been caused due to negligence of respondent no. 1? OPP

Whether the petitioners are entitled to compensation. If so, from whom and to what extent? OPP

Whether the petition is not maintainable and is liable to be dismissed? OPR-2.

Whether the driver who was driving the offending vehicle was not having valid driving license? OPR-2

Relief?

Issue no. 3 was taken as a preliminary issue and was decided in favour of claimants-respondents 1 to 4 vide order dated 01.03.2002.

The respondents-claimants were directed to lead evidence and they examined PWs Kewal Kumar and Bhopinder Kumar as their witnesses.

Claimant- respondent no. 1 also appeared in the witness box in support of their claim.

Appellant-insurer has failed to lead any evidence. Thus the evidence of claimants have remained unrebutted.

PW Bhopinder Kumar has deposed that he was employed as a Conductor with the offending bus and deceased Ram Parkash was its driver.

The vehicle met with an accident due to jamming of the steering wheel, as a result of which its driver lost his life.

PWs Kewal Kumar and Koshlya Devi have deposed that the deceased was earning Rs. 3000/- per month and Rs. 100/- per day as a trip.

While appreciating the evidence, which remained unrebutted, the learned Tribunal has held that the driver of the offending vehicle lost his life due

to motor vehicular accident and, thus, the claimants are entitled to compensation. The Tribunal after examining the record and in view of the

averments contained in the claim petition has held that the deceased was 35 years of age at the time of accident and, accordingly, applied multiplier

14, which in my view is just and appropriate multiplier.

After making deductions the Tribunal has held that the claimants have lost the source of dependency to the tune of Rs. 3000/- per month. The

findings returned by the Tribunal appear to be just and appropriate. The compensation awarded is just and appropriate and the Tribunal has also

not fallen in error in any way.

Mr. Gupta, learned counsel for appellant has argued that the claim petition is not maintainable for the reason that claimants are the legal

representatives of driver, who was driving the offending vehicle rashly and negligently.

The Tribunal has already returned its findings while deciding issue no. 3 that the claim petition is maintainable. The appellant has not questioned

the same at the relevant point of time, however, has questioned the same by the medium of instant appeal.

Keeping in view the provisions of Section 167 of Motor Accidents Claims Tribunal Act (for short, Act), the claimants have the option either to

file claim petition before the Motor Accidents Claims Tribunal or to lay claim in terms of the provisions of Workmen Compensation Act, 1993. It

is apt to reproduce section 167 of the Act herein.

Option regarding claims for compensation in certain cases.-Notwithstanding 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.

Thus a plain reading of the section permits the claimants either to lay claim before the Motor Accidents Claims Tribunal or before the authority

under the Workmen's Compensation Act.

The Apex Court in National Insurance Co. Ltd. Vs. Mastan and Another, has also held that the claim petition is maintainable. Having glance of

the above discussion, the impugned award merits to be upheld and appeal merits to be dismissed. Accordingly, the impugned award is upheld and

the appeal is dismissed.