eligibility of L.Rs. to claim compensation when the accident was occurred due to fault of deceased driver himself. In that case, the facts were that the deceased was driving the lorry from Hyderabad to Mandamarri and on the way he lost control over the vehicle and hit the roadside tree resulting in his instantaneous death. His L.Rs. filed claim petition under Section 166 of M.V.Act against the owner and insurer of the lorry. Owner remained ex-parte and Insurance Company repudiated its liability mainly on the plea that accident was occurred due to the fault of deceased himself and further he had no valid licence. It also took a plea that claimants ought to have filed claim petition before the Workmens Compensation Tribunal against the owner. The Tribunal in that case held that accident was occurred due to the fault of deceased. Having regard to the fact that the policy which was in force was only an Act policy, awarded compensation against respondents to the extent permissible under Workmens Compensation Act. Challenging the award, claimants filed two sets of appeals seeking computation of compensation under M.V.Act since their original claim was under Section 166 of M.V.Act. In that back drop, the important point that fell for consideration of this Court in that case was as follows: When the accident was occurred due to the fault of deceased/driver himself, whether his L.Rs. can lay claim under Section 166 of MV Act i.e. under fault liability principle and whether the tribunal under the M.V. Act was empowered to adjudicate such claim? Discussing the case law on this aspect, this Court in para-10 of its judgment held thus: .So, in substance the law on the point in issue as per the latest judgment available is that when a driver himself is responsible for the accident and a claim petition is filed by him or his L.Rs. under Section 166 of MV Act by choosing the Forum under M.V.Act as per Section 167, then the Tribunal cannot grant him compensation under Section 166 of MV Act (on fault liability principle) but it can award compensation under Workmens Compensation, since in a claim under Workmens Compensation Act there is no need to prove the fault or negligence on the part of owner or some other.

2014 August http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11855

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A Nos.924  of 2009 and batch

25-08-2014

M.Posham and another.. Appellants  

S. Kalavathi and others.. Respondents

Counsel for Appellants  : Sri S. Surender Reddy

Counsel for Respondent No.2     : Dr. Muddu Vijay
 Counsel for Respondent No.3    : Sri I. Raja Mallaiah


<Gist:

>Head Note:

? Cases referred:
1)      2009 (6) SCC 280
2)      2003 ACJ 203 = 2002 (2) ALD 811
3)      2005 (1) ALD 111
4)      2000 ACJ 801 = (2000) 5 SCC 113
5)      1998 (6) ALD 1
6)      2007 ACJ 1477 (Rajasthan)


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
M.A.C.M.A. Nos.924 and 3593 of 2009
COMMON JUDGMENT:      
        Aggrieved by the Award dated 05.01.2009 in O.P. No.445 of 2004
passed by the Chairman, MACTcumDistrict Judge, Adilabad (for short
the Tribunal), claimants, who are parents and R.3 who is wife of
deceased preferred M.A.C.M.A No.924 of 2009 and M.A.C.M.A No.3593  
of 2009 respectively.
2)        The facts in brief are that:
a)      The claimants are parents and R3 is the wife of deceased
M.Srinivas. On the intervening night of 18/19.02.2004 when the deceased
was proceeding on his lorry/truck bearing No. AP 01 T 8118 from
Hyderabad to Mandamarri and when he reached Chagallu near Station
Ghanpur on HyderabadWarangal road he lost control over the vehicle
and hit a roadside tree resulting instantaneous death of the deceased.  It is
the case of the claimants that the offending lorry/truck belongs to the first
respondent was insured with R2/ Insurance Company on the date of
accident and the said policy covers the risk and hence, they are entitled to
compensation.  With these pleas, they filed OP No.445 of 2004 against
respondents 1 and 2, who are the owner and insurer of the crime lorry and
claimed Rs.2,50,000/- as compensation under different heads.  They added
wife of deceased as R.3 on the plea that she refused to join them to file
O.P.
b)      First respondent remained ex parte.
c)      R2Insurance Company firstly denied the age, avocation and
income of the deceased.  It also denied the insurance of lorry/truck with it
and urged to put the claimants to strict proof.  It pleaded that the deceased
had no valid driving licence and accident was occurred only due to the
fault of the deceased himself and consequently neither the first respondent
nor it is liable to pay any compensation.  It also pleaded that the claimants
ought to have filed claim for compensation before the Workmens
Compensation Tribunal and therefore, OP is not maintainable.  Finally, it
pleaded that claim is excessive.
d)      Third respondent/wife in her written statement denied that she never
refused to cooperate with the petitioners in filing OP.  Her version is that
claimants themselves did not cooperate with her and therefore, she filed
Workmens Compensation Case No.14/20004 before the Deputy    
Commissioner of Labour, Warangal impleading them as respondents 3  
and 4 in the said case.  She pleaded that petitioners are not dependants of
the deceased and they are not entitled to any compensation.  She pleaded
for dismissal of OP on the ground that her claim petition is pending before
the Deputy Commissioner of Labour.
e)      PW.1 was examined and Exs.A.1 to A.6 were marked on behalf of  
claimants.  No oral or documentary evidence was adduced on behalf of
respondents.
f)      On appreciation of evidence, the Tribunal held that the deceased
himself was responsible for the accident.  It awarded Rs.1,25,663/- as
compensation under different heads as follows:
Loss of earnings                        - Rs.1,23,163/-
Funeral expenses                        - Rs.     2,500/-
     -------------------
                        Total             Rs.1,25,663/-
     -------------------
        Hence the appeals: 1) MACMA No.924 of 2009 by the parents/
claimants challenging the quantum of compensation as inadequate and (2)
MACMA No.3593 of 2009 by R3/ wife.  
3)      Heard arguments of Sri S. Surender Reddy, learned counsel for
appellants/claimants in MACMA No.924 of 2009/ respondents 1 and 2 in
MACMA No.3593 of 2009, Dr. Muddu Vijay, learned counsel for R.2  
Insurance Company in MACMA No.924 of 2009/ respondent No.4 in  
MACMA No.3593 of 2009 and Sri I. Raja Mallaiah, learned counsel for
R.3 in MACMA No.924 of 2009/ appellant in MACMA No.3593 of 2009.  
Notice to R.1 in MACMA No.924 of 2009/R.3 in MACMA No.3593 of  
2009 was served but no representation and hence, treated as heard.
4)      The parties in these two appeals are referred as they stood before
the Tribunal.
5 a)    Challenging the method adopted by the Tribunal for computation of
compensation, the learned counsel for appellants in both the appeals firstly
argued that when their claim is under Motor Vehicles Act, 1988 (for short
M.V.Act), the Tribunal should not have computed compensation under
Workmens Compensation Act, 1923 and thereby, the compensation was    
drastically reduced.
b)      Secondly, questioning the quantum of compensation, they argued
that the Tribunal committed error in accepting the annual income of
deceased as Rs.15,000/- p.a following the Second Schedule of M.V.Act.
Their contention is that the deceased was a lorry deriver under 1st
respondent/ owner and died in due course of his employment and was
earning Rs.5,000/- p.m.  and therefore, he should not have been treated as
a non-earning person to adopt the notional income of Rs.15,000/- p.a.  On
the other hand, the Tribunal ought to have fixed a reasonable amount as
his income, as a lorry driver would earn.  Or otherwise, since the Tribunal
computed compensation under Workmens Compensation Act, it ought to  
have fixed his notional income basing on the minimum wages earned by
the deceased as a driver of motor vehicle.  Contrary to it, the Tribunal
adopted the notional income under Second Schedule of the M.V.Act
which is quite irrelevant and unsuitable to the facts of the case.  Thus, they
prayed to allow their respective appeals and enhance the compensation
suitably.
6)      Per contra, opposing the two appeals, learned counsel for Insurance
Company would contend that since the policy issued by the Insurance
Company was an act policy and risk of the deceased was covered only to
the extent of compensation payable under Workmens Compensation Act,  
the Tribunal rightly assessed compensation under Workmens
Compensation Act.  Therefore, he would argue, though the claim  was one
under Section 166 of M.V. Act, the Tribunal was perfectly right in
applying the provisions of Workmens Compensation Act for computation
of compensation in the circumstances narrated supra.  He relied upon the
decision reported in Oriental Insurance Company Limited vs. Mohd.
Nasir and another  on the point that the provisions of Workmens
Compensation Act, 1923 would also be applicable to the claim
applications arising out of the provisions of M.V. Act, 1988.  Learned
counsel would further argue that the Tribunal was also right in adopting
the notional income of Rs.15,000/- p.a as prescribed in the Second
Schedule of M.V. Act since the claimants failed to produce cogent
evidence relating to actual earnings of the deceased.  He thus prayed to
dismiss both the appeals.
7)      In view of the above rival arguments, the points that arise for
consideration in these appeals are:
1)      When the accident was occurred due to the fault of
deceased/driver himself, whether his L.Rs. can lay claim under
Section 166 of MV Act i.e. under fault liability principle and
whether the tribunal under the M.V. Act was empowered to
adjudicate such claim?
2)      If point No.1 is held in affirmative, whether the compensation
awarded by the tribunal is just and reasonable or needs
enhancement?
8)  POINT No.1: The accident, involvement of lorry/truck bearing No.AP
01 T 8118 and death of the deceased are not in dispute. The finding of the
tribunal in respect of issue No.1 as can be found in para-10 of the
judgment appears to be  that the accident was occurred due to fault of
deceased himself, as he lost control over the lorry while driving it and as a
result the lorry went and hit a road side tree causing his instantaneous
death.  Obviously no other vehicle was involved in the accident.
a)      Be that it may, claim petition is filed under Section 166 of M.V.Act,
1988 and the tribunal also treated the claim as one under the said
provision. However, the tribunal basing on the facts that the deceased who
was the driver of the lorry died during the course of employment and that
Ex.A5policy issued by R2/Insurance Company was only an Act policy  
and covers his risk to the extent of compensation payable under
Workmens Compensation Act, has computed compensation under    
Workmens Compensation Act, 1923 and awarded to the claimants and  
third respondent.  Therefore, it is contended that when the claim is filed
under M.V.Act the tribunal was not right in determining the compensation
under the provisions of Workmens Compensation Act, 1923.  The claim
under Section 166 is one under the principle of fault liability. However,
the pleadings and finding of the tribunal as narrated supra are to the effect
that accident was occurred only due to the fault of deceased himself as
driver of ill-fated lorry. In such scenario the point is, whether claim is
maintainable under Section 166 of MV Act since the claim under the said
section will be generally instituted by the claimant or his LRs. by
imputing the fault on the owner or some other person but not on the victim
himself as in the instant case. Therefore, it necessitated this appellate
Court to decide legality of decision of the tribunal.
9)      The point under controversy is no more resintegra.  We have two
decisions of learned single Judges of this High Court on this aspect.
a)      In United India Insurance Co. Ltd., Armoor Branch, Nizamabad
v. Kore Laxmi and others  the facts are that deceasedK.Anand driver of
the lorry bearing No.AP 25 T 1452 drove his lorry in a rash and negligent
manner and rammed into an oncoming lorry bearing No.ATJ 407 and died
in the resultant accident. His LRs. filed claim petition against the owner
and insurer of his lorry. The tribunal though basing on the material on
record held that accident was occurred due to the fault of the deceased
himself, however, awarded compensation to the claimants under
Workmens Compensation Act, 1923. The insurance company preferred  
appeal challenging the award on the main contention that when the
accident was occurred due to the fault of deceased himself the claim is not
maintainable under Section 166 of MV Act. Whereas the claimants
contended that under Section 167 of MV Act they have option to move
either under Workmens Compensation before the Commissioner or under  
M.V.Act for compensation. Learned single Judge on verification of
several decisions of various High Courts has held thus:
29. In the above view of the matter, I am of the opinion that
neither this Court nor the Claims Tribunal has the power to
enquire into the question of compensation payable under the
WC Act. The said question has to be determined by the
Commissioner under the WC Act, on the basis of strict liability,
which is imposed by the statute itself.
30.   In the facts and circumstances of the present case, I am of
the opinion that the claimants have mistakenly moved the
Claims Tribunal under the M.V Act. It does not mean that the
claimants have elected a forum. In the facts and circumstances
of the case, even though the claimants/respondents filed claim
petition before the Claims Tribunal under the MV Act, it does
not bar them from making a claim before the Commissioner
under the WC Act. The claimants are at liberty to file claim
petition before the Commissioner for Workmen's Compensation
once again to seek redressal of their claim.
b)      The matter has not ended there. The same question came up for
consideration in subsequent decision before another learned single Judge
in a case reported in Adhikarala Jagadeeswara Rao v. Gopala Krishna
Transport and others .  One of the points for determination before His
Lordship was:
(iv) Principles for fixing the compensation under Motor Vehicles
Act and Workmens Compensation Act are altogether different,
whether the Tribunal created under M.V.Act can entertain any
claim by a driver of the vehicle against his employer for awarding
compensation under Workmens Compensation Act.  
           Learned single Judge on perusal of several decisions including
Kore Laxmis case (2 supra) and also the decision of Apex Court in Rita
Devi v. New India Assurance Co.Ltd.  has held thus:
From the foregoing discussion, it is seen that the principle
underlying the judgment wherein the Tribunal constituted under
the Motor Vehicles Act cannot award compensation under
Workmen's Compensation Act unless it is pleaded and proved that
the accident 'has taken place due to rash and negligent driving of
the vehicle by its driver, the liability of the Insurance Company to
pay compensation does not arise has been watered down in the
subsequent decisions and their Lordships of the Supreme Court in
Rita Devi's case (supra) clearly held that under Section 167 of
M.V. Act the Tribunal constituted under M.V. Act is fully
competent to adjudicate the claims even under Workmen's
Compensation Act.
xxxxx
Hence, an employee due to whose fault the accident might have
taken place might have approached the Motor Vehicles Claims
Tribunal under Section 166 of the M.V. Act without knowing the
legal position and on that ground, the Tribunal need not
necessarily relegate him to the authority under the Workmen's
Compensation Act.' It can itself award compensation under the
provisions of Workmen's Compensation Act as long as he has not
chosen the other Forum to claim compensation. In Helen C.
Rebello's case (supra) the Supreme Court observed that while
interpreting a beneficial legislation held that the view that
subserves the object of the legislation should be accepted in the
following terms.
"Interpretation of such beneficial legislation is also well settled.
Whenever there be two possible interpretations in such statute
then the one which subserves the object of legislation, viz., benefit
to the subject should be accepted. In the present case, two
interpretations have been given of this statute, evidenced by two
distinct sets of decisions of the various High Courts. We have no
hesitation to conclude that the set of decisions which applied the
principle of no deduction of the life insurance amount should be
accepted and the other set which interpreted to deduct, is to be
rejected."
d)      In the above finding the learned Judge observed that the earlier
decision in Kore Laxmis case (2 supra) was not a good law in the light of
decision in Hellen C Rebello v. Maharastra State Road Transport
Corporation .
        In respect of subsequent point i.e. whether a driver who is
responsible for causing the accident can file a claim petition under
M.V.Act, learned single Judge has further held thus:
. Hence an application claiming compensation by a driver who
is responsible for causing the accident is maintainable both under
the provisions of M.V.Act as well as Workmens Compensation
Act in any of the two Forums.  But he is entitled to receive
compensation as per the provisions of Workmens Compensation  
Act only and this position is made clear in the proviso to Section
147(1)(b) of M.V.Act.
10)     No subsequent judgments of this High Court or Apex Court are
brought to my notice.  So, in substance the law on the point in issue as per
the latest judgment available is that when a driver himself is responsible
for the accident and a claim petition is field by him or his L.Rs. under
Section 166 of MV Act by choosing the Forum under M.V.Act as per
Section 167, then the tribunal cannot grant him compensation under
Section 166 of MV Act (on fault liability principle) but it can award
compensation under Workmens Compensation, since in a claim under  
Workmens Compensation Act there is no need to prove the fault or
negligence on the part of owner or some other.
a)      When the above ratio is applied to the facts of the present case,
since accident was occurred due to the fault of the deceased himself, it is
obvious that the claimants are not entitled to compensation under the
provisions of M.V Act and tribunal cannot grant compensation under
Section 166 of M.V.Act. However, it can determine and award
compensation under Workmens Compensation Act. Therefore, the lower  
tribunal in the instant case was right in determining the compensation
under Workmens Compensation Act though it did the said exercise under
a different context i.e. in view of Ex.A5policy issued by 2nd
respondent/insurance company covering the risk of deceased to the extent
of compensation payable under Workmens Compensation Act only.  
        This point is answered accordingly.
11) POINT No.2: Since point No.1 is held in affirmative, it has now to be
seen whether the compensation awarded by the tribunal is just and
reasonable or not. The tribunal awarded compensation following Section
4(1)(a) which reads thus:
4. Amount of compensation:- (1) Subject to the provisions of
this Act, the amount of compensation shall be as follows,
namely
a)  Where death results from the injury:  an amount equal to
                                                                 fifty percent
of the
                                                                 monthly wages
of the
                                                                 deceased
workman
                                                                 multiplied by
the
                                                                 relevant
factor;
    or
   an amount of Rs.50,000/-,
   whichever is more.
a)      Sofaras the income of the deceased is concerned, the claim of the
claimants that deceased was earning Rs.5,000/- per month was disbelieved
by the tribunal on the observation that they failed to let in any convincing
evidence.  Hence, it followed Second Schedule of the MV Act and fixed
his annual income at Rs.15,000/- per annum.  I am unable to countenance
the said fixation.
b)      It must be noted that this Court in an unreported judgment dated
06.08.2014 in MACMA No.2601 of 2009 (The United India Insurance
Co. Ltd. vs. Smt.K. Kistamma and others) while relying upon the decision
reported in Vishan Das and others vs. Suwa Lal and others  has held as
follows:
The notional income of Rs.15,000/- as provided in item No.6 of
Second Schedule appended to M.V.Act applies to those persons  
who had admittedly no income prior to the accident.  The heading
to Item No.6 which reads as Notional income for compensation
to those who had no income prior to accident, itself is self-
explanatory in this regard. Should we give a plain meaning to the
words who had no income prior to accident we understand that
they refer to those persons who admittedly had no income prior to
accident. We can visualize those persons as old and infirm, bed
ridden by sickness and those who had no earning capacity. In
respect of those persons, notional income has to be taken as
Rs.15,000/- for computation of compensation. However, honestly
speaking the said notional income will not apply to other persons
who are able bodied persons and having earning potentiality and
those who are employed in one or other avocation and earning
some income. In respect of such persons even if there is no
concrete evidence regarding their earnings, the Court shall make
a reasonable estimate of their earnings having regard to their age,
nature of occupation etc.
        On the other hand, the decision in Mohd. Nasirs case (1 supra)
cited by learned counsel for Insurance Company can be distinguished on
facts.  In that case it was observed by the Honourable Apex Court that in
respect of claims filed under M.V Act for compensation for permanent
disability, the disability can be determined with reference to Schedule I
under Workmens Compensation Act, 1923. There is no demur about the  
said proposition.  However, the same is not applicable to the facts of the
present case.
c)      Thus in view of the decision in The United India Insurance Co.
Ltd. vs. Smt. K. Kistammas case, fixation of notional income at
Rs.15,000/- per annum to the deceased who was admittedly an young
person of 35 years and was under the employment of first respondent as
lorry driver is not correct. Therefore, having regard to his age and
avocation his income by the date of his death can be reasonably fixed at
Rs.2,000/- per month. Thus, the compensation payable would work out to
Rs.1,97,060/- (50% of Rs.2,000/- x 197.06).  Added to the said amount the
claimants and third respondent are entitled to Rs.5,000/- towards funeral
expenditure as per Section 4(4) of Employees Compensation Act, 1923
(Amended Act 45/2009 with effect from 18.01.2010).  Thus, the claimants
and third respondent are entitled to total compensation as follows:
        Loss of earnings                        Rs.1,97,060.00
        Funeral expenses                        Rs.     5,000-00
     -------------------
                        Total           Rs.2,02,060-00
     -------------------
     Hence, the compensation is enhanced by Rs.76,397/- (Rs.2,02,060
minus Rs.1,25,663/-).  This point is answered accordingly.
12)     In the result, in view of the above findings, both the MACMAs are
disposed of as follows:
(a)     MACMA No.924 of 2009 and MACMA No.3593 of 2009      
are partly allowed and compensation is enhanced by
Rs.76,397/- with proportionate costs and interest @ 7.5%
per annum from the date of OP till the date of realization.
(b)     Respondents 1 and 2 in the OP are directed to deposit the
compensation amount within one month from the date of
this judgment, failing which execution can be taken out
against them.
(c)     The claimants and third respondent in OP shall share the
compensation amount equally.
(d)     No costs in both the appeals.
     As a sequel, miscellaneous applications pending, if any, shall stand
closed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 25.08.2014

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