Shahnaz Bee vs Nirmala Road Lines and Others

S.R. Waghmare, J.

This is a claimants appeal against dismissal of his claim by order dated 24-6-2003 passed by 13th M.A.C.T. Indore in Claim Case No. 201/2003.

Brief facts of the case are that on the date of incidence i.e. 12-5-1997, at 5.30 p.m. in the ghat at Manpur, a truck bearing Registration No. MH04-H-4622 being rashly and negligently driven by Mobin, non-applicant No. 2 turned turtle. In the peculiar facts and circumstances of the case, two sons of the driver Mobin who were travelling on the truck received grievous injuries and one of them died.

The claimant Smt. Shahnaz Bi, the wife of the driver Mobin and mother of the two sons Salim and Kalim claimed compensation for the death of Salim and permanent disability of Kalim; against the owner, the driver (her husband) and the Insurance Company. She claimed that Salim was a labourer, whereas Kalim had boarded the truck as a cleaner. She also claimed that he was earning Rs. 1,000/- per month plus Rs. 40/- per day as allowance, being 20 years of age she claimed compensation of Rs. 3,00,000/-.

The Appellant claimant also alleged that Kalim the second son received grievous injuries and was earning Rs. 1500/- per month. He was hospitalized in M.Y. Hospital Indore, for almost 15 days and had sustained a permanent disability in his left leg and right hand and had spent Rs. 15,000/- for treatment claimed a compensation of Rs. 2,30,000/- on behalf of Kalim.

Non-applicant No. 1 and 2 despite service remained ex parte.

Non-applicant No. 3 the Respondent-Insurance Company resisted the claim by even denying that the accident had occurred and further it also took up the defence that the sons of Shahnaz were neither cleaner nor labourers as alleged and were travelling illegally on the truck and hence they were not covered under the policy and the Insurance Company was not liable to pay the compensation if any. They could at the most be termed as gratuitous passengers and hence, the Insurance Company was not liable to pay the claim.

The Tribunal on considering the evidence found that the accident had occurred due to mechanical failure since the brakes had failed and as a result of which the truck had turned turtle. The information given to the Police in the FIR by the non-applicant No. 2 Mobin himself was that the accident was due to brake failure and hence liability could not be mulcted on non-applicant No. 2 as he was the driver of the truck. Similarly, the Appellant was unable to establish that deceased Salim was working as a cleaner on the truck whereas, Kalim was only 17 years of age and could not be a labourer as he was not even an adult. Moreover, since both the deceased as well as insurer had no relation with the owner as employees, the liability could not be mulcted on the Insurance Company since there was a violation of conditions of policy and even gratuitous passengers could not be covered under the same. Regarding Kalim the Doctor was examined and Dr. Inamdar was not able to establish the fact as to which muscle of his hand had become weak resulting in the permanent disability. The Tribunal found that nothing was established by the claimant mother. It was unexplained as to how without permission of the owner Kalim and Salim were travelling on the alleged truck. Since they were neither the employees nor the agricultural labourers none of the Respondents could be mulcted with the liability and hence, the claim was not maintainable according to the Tribunal and it dismissed the same. Being aggrieved, the Appellant has filed the present appeal.

Primarily Counsel for the Appellant has stated that there is an application under Order 6, Rule 17 of the CPC for treating the claim filed u/s 166 of the Motor Vehicles Act, 1988 as one u/s 163-A of the Motor Vehicles Act and the cause title be allowed to be amended. IA 3472/2008 thus needs to be considered primarily before going into the merits of the case.

Counsel for the Appellant urged that the Appellant mother had filed the claim for compensation on behalf of her two sons since the driver was non-applicant her husband and father of the two children. Stating that even if the claim has been wrongly filed u/s 166 of the Motor Vehicles Act, before the learned MACT in appeal, this Court had ample powers to convert the same into a claim u/s 163-A of the Motor Vehicles Act and compensation could be granted on the basis of no fault liability since the accident had occurred as a result of the mechanical failure of the brakes of the disputed vehicle and just and fair compensation could be awarded to the claimant.

Counsel for the Respondent Insurance Company, as well as the owner, have clearly opposed the submissions of the Counsel for the Appellant. Counsel stated that once having chosen the remedy of compensation u/s 166 and Section 140 of the Motor Vehicles Act the claimants could not turn around and pray that the claim be treated u/s 163-A of the Motor Vehicles Act. Moreover, the Tribunal had already assessed the evidence and came to a conclusion that since the vehicle was being driven by the non-applicant No. 2, he could not claim compensation for his own negligence as a tortfeasor. Moreover, Counsel for the Insurance Company also stated that there were violation of conditions of policy and the Insurance Company was rightly exonerated by the learned Tribunal.

Relying on The Oriental Insurance Company Limited Vs. Meena Variyal and Others, Counsel stated that the Apex Court had held that when a person is not a third party within the meaning of the Act the company cannot be made automatically liable merely resorting to the ratio in Swaran Singh''s case. In the said case the deceased being an employee was not covered under the Workmen''s Compensation Act, and had to be covered compulsorily under the Motor Vehicles Act and the Court had held that there is no special contract covering such a person then the Insurance Company would be made liable to pay the compensation first and then recover it from the insurer. So also the claimant had failed to establish negligence of the driver before the Insurance Company and hence, he could not be asked to indemnify the insurer nor there was any finding of negligence. The Apex Court had also held that the claim could have been filed either u/s 166 of the Act or u/s 163-A of the Act. Once the claimants had approached the Tribunal u/s 166 of the Act the claimants have necessarily to take upon themselves, the burden of establishing the negligence of the driver or owner of the vehicle concerned but if they proceeded u/s 163-A of the Act, the compensation will be awarded in terms of the schedule without calling upon the victim or his dependents to establish his negligence or default on the part of the owner or driver of the vehicle.

Moreover, it has also been brought to the notice of this Court that Section 163-B provides that the option to file claim can be exercised u/s 140 of the Act; then Section 163-A is automatically extinguished since the claimant cannot file claim under both the provisions. The section reads thus:

163B. Option to file claim in certain cases -- "Where a person is entitled to claim compensation u/s 140 and Section 163A, he shall file the claim under either of the said sections and not under both.

From the perusal of the claim, I find that the claim has been filed u/s 166 of the Motor Vehicles Act and in impugned para 21 the claimant has also claimed that on basis of no fault liability her claim may also be considered u/s 140 of the Motor Vehicles Act. Then under such circumstances, Section 163-B of the Motor Vehicles Act would come into operation and hence, the present application IA No. 3472/2008 cannot be allowed since the claimant has already exercised her option u/s 140 of the Motor Vehicles Act. Resultantly, the application is dismissed as not maintainable.

Considering the impugned judgment whereby the Tribunal has rejected the claim of the claimant, I find that the order is in consonance with the provisions of law since according to the recent judgments of the Apex Court no liability can be mulcted either on the Insurance Company when the negligence on the part of the driver is not established and the fact that the passengers were gratuitous passengers in a goods vehicle. The Insurance Company is, therefore, rightly exonerated. I also place my reliance on the decisions of the Apex Court in the matter of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and National Insurance Co. Ltd. v. Prema Devi and Ors. II (2008) ACC 1.

In the peculiar facts and circumstances of this case no permission was sought by the non-applicant No. 2 Mobin the driver of the Truck from the owner of the truck non-applicant No. 1 to carry his sons; then the liability cannot be mulcted on either the driver non-applicant No. 2 Mobin or the owner. Since if at all the driver of the vehicle would himself be liable to pay the compensation and moreover the negligence on the part of the owner has also not been established.

Thus, under these circumstances, I do not find any merit in the appeal. The appeal is, therefore, dismissed as such.