Smt. Rajo Devi vs Madan Lal Sharma and Others

Mansoor Ahmad Mir, Actg. C.J.

Claimant Rajo Devi, mother of the deceased, namely, Dhrub Dev Singh, who became victim of a vehicular accident, which was caused in a motor vehicle/tractor bearing registration No. HP37-1209, on 19.3.1992, had filed claim petition seeking compensation on the ground that she has lost her budding son, who was her future and particularly a help in her old age, due to the negligence of respondents No. 1 to 4. Further it is case of the claimant that the said accident has made her helpless and hapless.

Respondents have contested the claim petition by filing separate replies.

The Tribunal, on the basis of the pleadings of the parties framed the following issues:

Whether the son of the petitioner has expired due to negligence of respondents No. 1 to 4 for non-maintenance of vehicle?

OPP.

If issue No. 1 is decided in favour of the petitioner to what amount of compensation the petitioner is entitled and from whom? OPP.

Whether the petition is beyond limitation? OP parties.

Whether the vehicle was driven in violation of the terms and of the insurance policy?

OPR.

Relief.

The claimants have proved cause of death, loss of earning capacity and loss of source of dependency but the claim petition came to be dismissed on the ground that son of the claimant, who died in the accident, was driver of the offending vehicle. Other issues are not in dispute in this appeal. The only question now is whether the Tribunal was within its jurisdiction and power to dismiss the claim petition.

Even owner insurer and insured have not questioned the impugned award on any ground except on the ground of maintainability thus, it is admitted that the driver, who was in the employment of respondents No. 1 to 4 has lost life in the said accident. It appears that the Tribunal lost sight of the mandate of Section 167 of the Motor Vehicles Act, which reads as under:

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.

As per the mandate of law supra, the legal representatives of driver had right of election/option. They had two remedies available with them; one to file claim petition before the Tribunal and other to file claim under the Workmen''s Compensation Act. They have chosen to come before the Tribunal under the Motor Vehicles Act. If at all, the Tribunal was of the view that the accident was outcome of the negligent driving of the deceased and claim was not maintainable, at the same time, it was duty of the Tribunal to do justice to take the claim to its logical end by awarding compensation, as per the mandate of the Workmen''s Compensation Act.

On the last date of hearing, the learned counsel for the parties were directed to settle the case amicably out of the Court for an amount of Rs. two lac minus Rs. 50,000/- already received by the claimant in terms of Section 140 of the Motor Vehicles Act, on account of no fault liability.

The learned counsel for the claimant/appellant stated at the Bar that he has no objection to settle the matter amicably. However, learned counsel for the insurer though half heartedly accepted the version but submitted that he is under instructions to contest the same.

Having said so, I am of the considered view that in terms of the mandate of Workmen''s Compensation Act, the claimants are entitled to compensation to the tune of Rs. 2 lacs, which the Tribunal should have awarded, but failed to do so. To ask the claimant to invoke the jurisdiction under the Workmen''s Compensation Act after the lapse of 9 years is really travesty of justice. Therefore, I deem it proper to grant the appeal by awarding compensation to the tune of Rs. 2 lacs minus 50,000/- already received by the claimant in terms of Section 140 of the Motor Vehicles Act. The rest of the amount, i.e., Rs. 1,50,000/- be deposited by respondent No. 5 within four weeks from today in the Registry of this Court and the same shall be released to the claimant through payee''s cheque, after proper identification.

Accordingly, the appeal is disposed of.

Send down the records forthwith.