Lack of driving licence and only Act Policy = 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.

 Accident, involvement of lorry bearing No. KA
34 5528 and death of deceased being its driver are not in dispute.
 It is also
not in dispute that the deceased was working as cleaner in the ill-fated lorry
who drove the lorry at the time of accident and caused the accident due to
his own fault.
It is a further admitted fact that he had no driving licence.
In
the light of these facts, the crucial question is
whether his L.Rs. can claim compensation.
a)      Sofaras law on the point involved is no more res integra. This Court
in an unreported decision in M.Posham v. S.Kalavathi  has dealt with the
issue of 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.
b)      Applying the above decision to the facts, in the instant case also the
deceased drove the lorry as an unauthorised driver and caused accident due
to his own fault and ultimately died. Though his L.Rs. have exercised option
under Section 167 of MV Act and filed claim petition under Section 166 of
MV Act, the Tribunal should compute compensation under Workmens  
Compensation Act, 1923 only since the accident was caused due to the fault
of deceased himself being an employee under his owner.
c)      Then liability is concerned, insurer will be liable for compensation
payable to the extent payable under Workmens Compensation Act only.
Since in the instant case the Tribunal computed compensation under the
provisions of M.V.Act and directed the appellant/Insurance Company to pay
and recover compensation, the award is liable to be set aside and matter
needs remand with a direction to the Tribunal to compute compensation
under Workmens Compensation Act, 1923.  
        The Point Nos.1 and 2 are answered accordingly.
8)      In the result, this MACMA is allowed and ordered as follows:
a)      The award passed by the Tribunal in O.P.No.103 of 2007 is set
aside and matter is remanded to lower Tribunal with a direction to
compute the compensation under the provisions of Workmens
Compensation Act, 1923 against respondents in OP.
b)      In case the appellant/Insurance Company had already paid
compensation under the impugned award and it is more than the
compensation payable under Workmens Compensation Act, the  
Insurance Company is entitled to recover the excess compensation
paid by it from the insured.
c)      No costs in the appeal.
        As a sequel, miscellaneous petitions pending, if any, shall stand
closed.

2015 http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=12812


THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.811 of 2009

10-07-2015

Bajaz Allianz Insurance Co. Ltd..... Appellant

K.Bharatamma and others.. Respondents  

Counsel for Appellant: Sri N.Bhaskar Rao

Counsel for Respondents: None appeared

<Gist:

>Head Note:

? Cases referred:
MACMA Nos.924 & 3593 of 2009 dt.25.08.2014  


THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.811 of 2009

JUDGMENT:  
        Challenging the Award dated 01.07.2008 in O.P.No.103 of 2007
passed by the Chairman, MACT-cum- Additional District Judge, Guntur (for
short the Tribunal), the 2nd respondent in the O.P/Bajaj Allianz General
Insurance Company Limited preferred the instant MACMA.
2 a)    On factual side, on 22.04.2007 at about 6.00 p.m, when the
deceasedK.Rajagopal was proceeding on lorry bearing No.KA 34 5528  
from Sangareddy to Narsapur and when it reached near Ramachandrapur, he  
lost control over the lorry and dashed against the road side tree and
consequently he died on the spot.  It is averred that due to abrupt death of
deceased, the claimants lost their breadwinner and became destitutes. With
these averments, the claimants filed O.P.No.103 of 2007 under Sections 140
and 166 of Motor Vehicles Act, 1988 (for short MV Act) against
respondents 1 and 2, who are the owner and insurer of the offending lorry
and claimed Rs.5,00,000/- as compensation.
b)      Respondent No.1/owner remained ex parte.
c)      Respondent No.2/Insurance Company filed counter denying all the
material averments made in the petition and urged to put the claimants in
strict proof of the same. R2 contended that driver was not holding valid
driving licence at the time of accident. R2 finally contended that claim is
excessive and exorbitant and prayed for dismissal.
d)      During trial, PWs.1 and 2 were examined and Exs.A1 to A3 were
marked on behalf of claimants. RW1 was examined and Exs.B1 to B4 were  
marked on behalf of respondents.
e)      The Tribunal on appreciation of both oral and documentary evidence
on record, has awarded total compensation of Rs.4,50,000/- with costs and
interest at 6% p.a. under different heads as follows:

Loss of  dependency                     Rs.4,32,000-00
Loss of consortium                      Rs.   10,000-00
Loss of estate                          Rs.     5,000-00
Funeral expenses                                Rs.     3,000-00
                                                                      ------------
--------
                                             Total              Rs.4,50,000-00
                                                        --------------------
        The liability is concerned, the Tribunal on the observations that
deceased was a cleaner in the ill-fated lorry and he drove the vehicle and
caused the accident on his own fault and that he had no valid driving licence
and that Ex.B1policy was in force but the terms and conditions of the
policy were violated, held that appellant/Insurance Company has to pay
compensation first and realise the same from the owner/insured.
         Hence, the appeal by Insurance Company.
3)      The parties in this appeal are referred as they stood before the
Tribunal.
4)      Heard arguments of Sri N.S.Bhaskar Rao, learned counsel for
appellant/ Insurance Company. Though notice to R1 to R5/claimants was
served but there is no representation on their behalf, hence treated as heard.
Notice to R6/owner unserved.
5)      Castigating the award of the Tribunal directing the Insurance
Company to pay compensation and recover from the owner/insured, learned
counsel for appellant vehemently argued that in this case admittedly
deceased was only a cleaner but at the relevant time of accident he drove the
vehicle without having valid driving licence and caused the accident on his
own fault and the owner by allowing an unlicensed cleaner to drive the
vehicle committed grave infraction of the terms of the policy and thus the
Insurance Company does not attain any liability though policy was in force,
but the Tribunal erroneously directed the Insurance Company to pay and
recover the compensation. He thus prayed to allow the appeal and exonerate
the Insurance Company from its liability.
6)      In the light of above arguments, the points for determination in this
appeal are:
1. When the accident was occurred due to the own fault of driver
and resulted in his death, whether his L.Rs. can seek any
compensation against the owner and insurer of the accident
vehicle?
2.  If the point No.1 is held in affirmative, whether the Tribunal
can award compensation and if so, whether under Workmens
Compensation Act, 1923 or under Motor Vehicles Act, 1988 and
against whom?.
3. To what relief?
7)   POINT Nos. 1 and 2:  Accident, involvement of lorry bearing No. KA
34 5528 and death of deceased being its driver are not in dispute. It is also
not in dispute that the deceased was working as cleaner in the ill-fated lorry
who drove the lorry at the time of accident and caused the accident due to
his own fault. It is a further admitted fact that he had no driving licence. In
the light of these facts, the crucial question is whether his L.Rs. can claim
compensation.
a)      Sofaras law on the point involved is no more res integra. This Court
in an unreported decision in M.Posham v. S.Kalavathi  has dealt with the
issue of 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.
b)      Applying the above decision to the facts, in the instant case also the
deceased drove the lorry as an unauthorised driver and caused accident due
to his own fault and ultimately died. Though his L.Rs. have exercised option
under Section 167 of MV Act and filed claim petition under Section 166 of
MV Act, the Tribunal should compute compensation under Workmens  
Compensation Act, 1923 only since the accident was caused due to the fault
of deceased himself being an employee under his owner.
c)      Then liability is concerned, insurer will be liable for compensation
payable to the extent payable under Workmens Compensation Act only.
Since in the instant case the Tribunal computed compensation under the
provisions of M.V.Act and directed the appellant/Insurance Company to pay
and recover compensation, the award is liable to be set aside and matter
needs remand with a direction to the Tribunal to compute compensation
under Workmens Compensation Act, 1923.  
        The Point Nos.1 and 2 are answered accordingly.
8)      In the result, this MACMA is allowed and ordered as follows:
a)      The award passed by the Tribunal in O.P.No.103 of 2007 is set
aside and matter is remanded to lower Tribunal with a direction to
compute the compensation under the provisions of Workmens
Compensation Act, 1923 against respondents in OP.
b)      In case the appellant/Insurance Company had already paid
compensation under the impugned award and it is more than the
compensation payable under Workmens Compensation Act, the  
Insurance Company is entitled to recover the excess compensation
paid by it from the insured.
c)      No costs in the appeal.
        As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 10.07.2015 

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