United India Insurance Co. Ltd. vs Sivaraman and Vijayan

S. Palanivelu, J.—The following are the allegations found in both the claim petitions in brief.

Sivaraman was working as lorry driver under the second respondent and getting a monthly wages of Rs. 4,000/-, On 23.02.1999, at about 2.00

a.m., while he was driving the lorry belonging to the second respondent, near Pulavanoor Vallalar Nagar, a vehicle was coming from the opposite

side in a rash and negligent manner and to avoid collision with the said vehicle, the first respondent took the lorry to the left side and in that

process, it hit against the back side of the stationed lorry at the road. In the accident, Sivaraman and one Savarimuthu who is the first respondent in

CMA No. 1017 of 2004, an alternative driver sustained injuries. Both of them were admitted to Panruti Government Hospital. The said

Savarimuthu also was getting Rs. 4,000/- per month by working as a driver. Hence, a sum of Rs. 1,00,000/- is prayed for in each petition as

compensation.

In the counter filed by the appellant Insurance Company, the following are stated.

The tanker lorry involved in the said accident was not insured with the appellant. The lorry did not have a valid licence. The age, income and

avocation of the claimants are denied. They have claimed exorbitant compensation. The first respondent drove the lorry without proper care and

caution and had himself dashed the same against another lorry and had caused the accident. Only due to the fault of the petitioner alone, the

accident took place and hence this respondent is not liable to pay the compensation. Hence, the petition shall be dismissed.

The Learned Tribunal Judge, after analysing the evidence on record has decided that even though the claimant caused the accident, since it took

place while avoiding the collision with other vehicle, he is not negligent and hene he is entitled for compensation.

Learned Counsel for the appellant Mr. K. Suryanarayanan would argue that the claimant Sivaraman being tort-feasor who caused the accident

by his negligence could not claim compensation before the Motor Vehicle Claims Tribunal and that remedy open to him is to approach the forum

under Workmen Compensation Act. In support of this contention, he placed reliance upon Supreme Court decision reported in National Insurance

Co. Ltd. Vs. Mastan and Another, wherein Their Lordships have held as follows:

Mr. P. Ramasesh is not correct in contending that both the Acts should be read together. A party suffering an injury or the dependants of the

deceased who has died in course of an accident arising out of use of a motor vehicle may have claims under different statutes. But when cause of

action arises under different statutes and the claimant elects the forum under one Act in preference to the other, he cannot be thereafter permitted

to raise a contention which is available to him only in the former (Sic. Other).

It is his contention that since the accident took place due to his negligence, the proper forum for him might be the Authority under Workmen

Compensation Act and he could not elect this forum.

As far as the contention of the learned Counsel for the respondents are concerned, first of all, the court has to say whether the negligence to

cause accident lies on the said Sivaraman for which a careful scrutiny of the evidence is necessary. In his petition, he has stated that on seeking a

vehicle coming from the opposite side in a rash manner, he took the lorry to the left side and hence it hit the back side of the stationed vehicle. In

his evidence, he has stated that since the head light of the vehicles which were coming from the opposite directions were bright, he turned the lorry

to the left side and unexpectedly it dashed against the back side of a stationed lorry.

The FIR was lodged by the driver who was sitting in the stationed lorry and from the allegations in the FIR, nothing could be inferred as to the

negligence on the part of Sivaraman. It is to be noted that his evidence in his chief examination that due to the bright head light of the vehicles

coming from the opposite direction, he took the lorry to the left side was not specifically controverted. It is not suggested to him that no such

vehicle was coming from the opposite direction. In this regard, this Court is left with no option except to accept the oral account of P.W.1,

Sivaraman. If his oral testimony is considered, it transpires that there is no negligence on his part and even though he has caused the accident, he

could not be attributed to any rashness or negligence to cause the accident. Hence, the observations on this aspect recorded by the tribunal are

confirmed.

It is the further argument of the learned Counsel for the appellant that in case if there was no negligence on the part of Sivaraman, then there

would be difficulty in awarding the compensation to Savarimuthu who is an alternative driver who was sitting in the vehicle. As per the settled law,

when he chooses to get remedy under statute, he cannot turn round to seek relief before other forum. However, the court can treat the claim under

the one on which proper relief could be granted. If Savarimuthu is eligible to get compensation under the Workmen Compensation Act, as per

Division Bench decision of this Court, the compensation awarded in this proceedings can be treated to be a one awarded under the Workmen

Compensation Act. The following is the relevant portion of the Division Bench judgment of this Court in 2009 (1) TN MAC 458 (DB) [S.

Murugan and Anr. v. M. Veenainathan] wherein earlier Division Bench decision of this Court has been referred and the said portion is thus:

In The Oriental Insurance Company Ltd. Vs. Kaliya Pillai, Thangam and N. Velu, , the driver was found negligent and the parents of the

claimant made a claim under the Motor Vehicles Act. The Division Bench held that when the deceased himself is the tort-feasor, the claimants

cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. The Division

Bench observed that Section 167 of the Motor Vehicles Act gives the claimants an option regarding claims for compensation in certain cases that

the person entitled to compensation may claim such compensation either under the Workmen Compensation Act or under the Motor Vehicles Act,

but not under both. Therefore, the Division Bench held that

...

However, the Insurer''s liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference

to the contract of Insurance which would extend to the liability of the insured under the Workmen''s Compensation Act. There is a specific finding

by the Tribunal that deceased tractor driver died in the course of his employment. Further, it is not disputed that there was a valid Insurance on the

date of the accident, and accordingly the Insurer was liable to the extent of liability under the Workmen''s Compensation Act. In other words, we

hold that even though the Insurance Company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the

compensation under the Workmen''s Compensation Act and award the same in favour of the claimants. On this ground, instead of now directing

the respondents-claimants to go before the Commissioner under Workmen''s Compensation Act in order to shorten the litigation and also in the

interest of justice, we decide to dispose of the Appeal by determining the appropriate compensation in favour of the claimants.

As far as the quantum of compensation as fixed by the tribunal is concerned, the learned Counsel for the appellant would say that it is on the

higher side. Sivaraman has sustained fracture in his left ankle. The Doctor, P.W.4 who examined him, says that the ankle bones malunited, that his

ankle is found bent, that he is limbing with pain, that movements in his left ankle have been restricted and that he is suffering from the permanent

disablement to the tune of 35%. Since he is the driver, this permanent disability would hamper him in his avocation to a greater extent and adopting

multiplier formula as done by the tribunal is appropriate. For purpose of compensation, Rs. 800/- has been taken as monthly income. Annual loss

of income is Rs. 9,600/-. His age is 25 years, multiplier 17 has been adopted, Rs. 57,120/- is assessed as loss of income. Rs. 9,600/- has been

awarded under the head loss of income for one year and Rs. 5,000/- for pain and suffering, totalling to Rs. 71,720/-. In view of this Court, the

above said calculation is correct and there is no need to interfere with it.

As for the claim of Savarimuthu, the Doctor P.W.3 has examined him and stated that the claimant suffered fracture in his left femur and the

bones have mal-united by means of which his left thigh was bent, that the movements of his left joint were restricted, that his left leg is shortened by

3 cms, that he is limbing with pain and that he is suffering from permanent disability to the tune of 40%. For him also, the tribunal has adopted

multiplier method. Monthly income was taken as Rs. 800/- and annual loss of income Rs. 9,600/-, his age is 25 years, multiplier 17 was adopted

and a sum of Rs. 65,280/- has been arrived at under the head loss of income, Rs. 9,600/- and Rs. 5,000/- have been awarded for loss of income

for one year and pain and suffering. The said calculation and award of compensation are proper and there is no need to disturb it.

This Court is of the considered view that there is no negligence on the part of Sivaraman and that the quantum assessed by the tribunal for the

two claimants are also reasonable and there is no valid grounds to upset them. The common award is confirmed.

In fine, both the Civil Miscellaneous Appeals are dismissed. Consequently, the connected Civil Miscellaneous Petitions are closed. No costs.