VASANTHA, K. S. v. K. S. R. T. C. — 1981 DIGILAW 300 (KAR)

NAGAPPA, J. ( 1 ) THESE appeals are directed against the common judgment and orders dated 5-12-1978 passed by the Motor Accidents Claims Tribunal, Bangalore City, in M. V. C. Nos. 107, 108, 110, 114, 115, 116, 117, 209, 231 and 282 of 1977, dismissing the petitions. The injured claimants have claimed various compensations in M. V. C. Nos. 107, 110, 114, 115. 116, 1. 17, 209 and 282 of 1977, whereas the legal representatives of the deceased have claimed compensations in M. V. C. Nos. 108 and 231 of 1977. As the above claim petitions arise out of the same accident which occurred on 9-11-1976, they were clubbed together, common evidence was adduced and disposed of by a common judgment as referred to above by the Tribunal. As these appeals arise out of the said common judgment and orders, they are clubbed together and disposed of by this judgment. ( 2 ) THE petitioners - injured claimants - in M. V. C. Nos. 107, 110, 114, 115, 116, 117, 209 and 282, as also the deceased k. G. Srinivasa Desikachar, whose legal representatives are the petitioners in M. V. C. No. 108 of 1977, and deceased n. Muniyappa, whose legal representatives are the petitioners in MVC no. 231 of 1977, were all working in the first shift of the New Government Electric Factory ('ngef') in Bangalore at that time. In order to enable the workers to go to the factory in time, NGEF had arranged a bus belonging to the KS r. T. C. , which was picking up the said workers along with other workers from their respective places. In that connection KSRTC bus bearing registration No. MYF 927 used to go to rajajinagar, Mariyappanapalya, Subramanya nagar, Maruthi Extension, Gayathrinagar and pick the aforesaid workers in the said bus. It is stated that on 9-11-1976 at about 6-15 or 6-30 a. m. the aloresaid said bus after picking up the workers of the NGEF was proceeding towards the factory. One Krishnappa was the driver at that time. He was driving the bus from west to east at a very high speed in a rash, and negligent manner. It is stated that on 9-11-1976 at about 6-15 or 6-30 a. m. the aloresaid said bus after picking up the workers of the NGEF was proceeding towards the factory. One Krishnappa was the driver at that time. He was driving the bus from west to east at a very high speed in a rash, and negligent manner. When the bus came near geethanjali talkies, Maileswaram, where the road is down-gradient, the bus suddenly left the road and fell into a ditch due to the rash and negligent driving ol the bus by its driver, as a result of which two workers, namely, srinivasa Desikachar and Muniyappa sustained fatal injuries and died on the same day, whereas the other workers, including the petitioners in the aforesaid claim petitions, have sustained various injuries. The petitioners, as aloresaid, filed claim petitions under S. 110-A of the Motor Vehicles Act claiming various compensations on the ground that the accident was due to the rash and negligent driving of the bus in question and the injuries sustained by them as also the death of the aforesaid two persons were the result of such rash and negligent driving. ( 3 ) THE owner of the bus - KSRTC-in all the aforesaid cases-resisted the petitions on the ground that the petitions are not maintainable either in law or on facts and contended that the accident was not due to the rash and negligent driving of the bus in question, but on the other hand the accident was inevitable. According to the, respondent the bus was taken out of the depot in the early morning after thorough check up of its mechanical condition including the brake system and at that time no defects were noticed. After picking up about 15 workers of the factory at about 6. 40 a. m. on 9. 11. 76, the bus was stopped at Maileswaram Circle and after picking up some more workers, the bus was proceeding slowly in the down gradient from Mohammadan block and all of a sudden without any indication the brakes failed to operate at which time the driver shouted that the brakes failed and he would somehow try to stop the bus by which time the workers inside the bus started to run helter-skelter and notwithstanding the best efforts of the driver to control the bus, as an inevitable result the accident took place. Under these circumstances, the respondent contended that the accident was not due to the rash and negligent driving of the bus. In the alternative, it contended that the compensation claimed in each of the petitions was highly excessive. It prayed for dismissal of the petitions. ( 4 ) THE driver of the bus also resisted the petition. While admitting that he was driving the bus in question, he has stated that the accident was not due to the rash and negligent driving of the bus in question. According to him when the bus reached the Vth cross of Malleswaram, the brakes suddenly failed and in spite of his best efforts he could not control the bus as a result of which it fell into a ditch. He contended that he took all care and caution and used his skill and talent to avoid the accident. As the brakes of the bus failed, he contended that the accident was inevitable. He contended that the compensation claimed in each of the cases was excessive. ( 5 ) N. G. E. F. respondent-2 in some of the petitions also resisted the petitions. It admitted that the injured claimants and the deceased 2 persons were the employees, of the factory but contended that there was no cause of action against it. It admitted that the eight injured persons and the two deceased were travelling in the bus in question, which was owned by the K. S. R. T. C. This respondent had engaged the said bus on contract basis as per the agreement with the k. S. R. T. C. and as per the said agreement the K. S. R. T. C. had undertaken to bring the employees of the N. G. E. F. to its factory. ( 6 ) IT also contended that the said bus was neither in the control of it nor the driver of the bus in question was in the employment of the factory, in which case it is not liable to pay any compensation and therefore it is not at all a necessary party. According to it there is no privity of contract between the claimants and the factory in the matter of transport to fasten any liability of any sort whatsoever for the alleged injuries and deaths. But however, it contended that the compensation claimed in each of the cases was fanciful and excessive. According to it there is no privity of contract between the claimants and the factory in the matter of transport to fasten any liability of any sort whatsoever for the alleged injuries and deaths. But however, it contended that the compensation claimed in each of the cases was fanciful and excessive. Hence it prayed for dismissal of the petitions. The petitioners adduced evidence, in support of their cases and got marked Exs. P 1 to P 83. On behalf of the respondents though two witnesses were examined, the driver of the bus in question was not examined. The Tribunal after assessing the evidence came to the conclusion that the theory of the first respondent that the accident was inevitable on account of the sudden failure of the brakes is only a make believe story concocted in order to save its own skin and held that the petitioners have proved that the accident was due to the rash and negligent driving of the bus in qusetion and that the injuries and death were due to the result of such an accident. ( 7 ) THOUGH the Tribunal quantified the compensation that each of the claimants is entitled to get, it rejected the petitions on the ground that they are barred under S. 53 of the Employees' State Insurance Act, 1948 and therefore they are not entitled to claim compensation under the provisions of the Motor vehicles Act. The claimants aggrieved by the said judgment and orders of dismissal have challenged the legality and correctness of the same in these appeals. Sri V. C. Narasimhan, learned counsel appearing for some of the appellants in these appeals, strenuously contended that the view taken by the Tribunal cannot be sustained. Elaborating his contention what he submitted was that S. 53 of the employees' State Insurance Act, 1948 (shortly called 'the Act') is no bar for the claimants to proceed against the tortfeasors and recover compensation under the provisions of the Motor Vehicles Act. Elaborating his contention what he submitted was that S. 53 of the employees' State Insurance Act, 1948 (shortly called 'the Act') is no bar for the claimants to proceed against the tortfeasors and recover compensation under the provisions of the Motor Vehicles Act. He contended that S. 61 of the Act would not be a bar to receive similar benefits available to the claimants from the tortfeasers under the provisions of the Motor Vehicles Act and that S. 53 of the Act, is an analogous provision with that of s. 61 of the Act, in which case S. 53 of the Act also would not be a bar for the claimants to receive compensation under the provisions of the motor Vehicles Act. He further submitted that the words occurring in s. 53 of the Act "or any other law for the time being in force or otherwise" would only refer to a similar enactment to the Act and if that is so, the claim under the Motor vehicles, Act being one under the general law of Torts, Section 53 would not be a bar for maintaining the petitions before the Tribunal. He tried to justify his argument by invoking the rule of construction of ejusdem generis, meaning thereby that any other analogous law and the words "or any other law for the time being in force- or otherwise'' points that law to be an enactment and not the general law of Torts. If that is so, he submitted that the construction put on the word 'law' 'appearing in S. 53 of the Act is contrary to the settled principles of interpretation and construction of statutes. ( 8 ) THE learned counsel appearing on behalf of the respondent - KSRTC owner of the bus in question while commending the reasonings of the tribunal for acceptance, relied upon the decision of this Court in Hindustan aeronautic v. V. P. Venu (1) wherein this Court has held that S. 61 of the Act is not a bar to an application for compensation under the provisions of the Motor vehicles Act, because the Motor vehicles Act only laid down the procedure for adjudication and the substantive right to sue for compensation is conferred by the law of Torts. He further submitted that the words "any other enactment" is not analogous to the words" or any other law for the time being in force or otherwise" appearing in S. 53 of the Act. If that is so, according to him the words "any other law" cannot be construed to mean "any enactment", but on the other hand, it includes common law of Torts also. Therefore, he, submitted that the claim petitions before the Tribunal were not maintainable and the view taken by the Tribunal in that behalf is in accordance with law and does not call for interference by this Court. ( 9 ) FOR proper appreciation of the rival contentions put forward by the respective parties', it is "necessary to set out Ss. 53 and 61 of the Act. S. 53 reads thus: -"an insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under the act". Under this section the insured person or his dependants are prohibited either to receive or to recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act or any other law for the time being in force, in respect of an employment injury sustained by the insured person as an employee under the act. It is therefore, clear that this provision acts as a blanket bar to recover compensation or damages under the Workmen's Compensation act or any other law for the time being in force in respect of an employment injury by the insured person. The insured person or his dependants also cannot proceed against the employer or any other person for recovery of compensation as the remedy lies against the Corporation. This is in view of the amendment of the said section by act 44 of 1966. Prior to this amendment, it was always open to the dependants of the insured to sue in tort under the Common law. This is in view of the amendment of the said section by act 44 of 1966. Prior to this amendment, it was always open to the dependants of the insured to sue in tort under the Common law. After the amendment, the position is changed and the amended section stipulates that the dependants of an insured person are also barred from claiming either compensation or damages under any other law for the time being in force. ( 10 ) S. 61 of the Act reads as follows:"when a person is entitled to any of the benefits provided by this act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment. "a reading of this section, it is clear that a person who is entitled to ant of the benefits provided under the act shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment. The words 'any other enactment came up for interpretation by this Court in the aforesaid hindustan Aeronautic's case (1 ). It was contended in that case that s. 61 of the Act was a bar to a claim arising under S. 110a of the Motor Vehicles act, as the said claim arose out of an enactment and therefore hit by the provisions of S. 61 of the Act. While so contending, it was argued in that case that the provisions of S. 110 to 110f of the motor Vehicles Act are by themselves a self-contained and complete code and evidently it being a piece of enactment, the claim petition was barred under S. 61 of the Act. This court while negativing the said contention has held thus: -"it is true that the Motor vehicles Act is a special law. It was also true that it is an enactment. But the crucial piont for determination is whether the provisions of Sections 110 to 110f of the Motor Vehicles Act, are provisions relating to procedural law or of substantive law reading sections 110 to 110f of the motor Vehicles Act it is evident that they provide for adjudication upon claims of compensation in respect of accidents involving the death or injury to persons arising out of the motor vehicles. Section 110a creates a right to make an application for compensation arising out of an accident section 96 creates a liability to pay such compensation on the part of the insurer. S. 110f bars the jurisdiction of the Civil Courts to make adjudication which could be made by the claims Tribunal for the area for which such Tribunal has been constituted. It is thus clear that a claim for compensation could be made only under the provisions of Chapter VIII of the Motor Vehicles Act to the claims Tribunal, but, the right to sue is quite a different matter which originates from substantive law, namely, the law of Torts. Evidently, the law of Torts is not an enactment. Consequently, the provisions of Section 61 of the esi, Act cannot be attracted to such a case. Unless and until a claimant establishes an actionable negligence, he cannot succeed in his claim. All that the Motor vehicles Act has provided is to enforce that right which accrues to the claimants on the basis of actionable negligence on the part of of the respondent. It is thus clear that the liability of the owner of a vehicle for damages for the injury caused by the negligence of his driver arises not under the Motor Vehicles act but under the common law. In a decision of this Court in Ariyamma v. . Narasimhaiah (1972 ACJ 22) = (1972) 2 Mys LJ 373 it is observed: "the effect of Ss. 110a to 110f of the Motor Vehicles Act is to provide a new forum and period of limitation, which are matters of procedure, but the substantive law as to what gives rise to liability for damages and who are liable for damages remains unaltered by those provisions of the act. " therefore, on the above reasons, we do not find any substance in the second contention". ( 11 ) NOW the point for consideration is whether the words occurring in s. 53 of the Act "or any other law for the time being in force or otherwise" could be construed as the one analogous to the word "enactment" occurring in S. 61 of the Act. As already stated, the learned counsel for the appellants contended that applying the rule of construction of ejusdem generis to the words; "any other law" points to an enactment and not the general law of torts. As already stated, the learned counsel for the appellants contended that applying the rule of construction of ejusdem generis to the words; "any other law" points to an enactment and not the general law of torts. An enactment is a legislative law whereas the law of Torts is not an 'enactment' but part of common law in respect of compensation and damages against tortfeasers genererally. ( 12 ) THE learned counsel brought to the notice of the Court a passage appearing in American Jurisprudence ii Edn. Vol. 22 at page 209 under the heading 'welfare, pension or workmen's compensation benefits', the relevant portion of which reads thus: ''the general rule that a defendant cannot reduce the damages for which he would otherwise be liable by showing that the complainant received compensation from a collateral source applies to benefits received from welfare or pension programs. Thus, exempt for some claims under the Federal Tort Claims Act, the unanimous rule is that personal injury damages will not be mitigated because the complainant received or is about to receive a pension or a similar benefit during his disability. . . . . . . Welfare and unemployment benefits are not to be considered as mitigating the defendant's damages. Thus, a tortfeasor cannot take advantage of these benefits received by the complainant, the courts stating that the funds were created and paid with the intention of giving a benefit to the complainant and not to the tortfeasor. ( 13 ) RELYING on these observations, it is to be seen whether in the instant case the first respondent owner of the bus, cannot take advantage of the benefits received by the claimants under the Act and whether it could be said that the said fund is created with the intention of- giving benefit to the claimants and not to the tortfeasor. Chapter V of the Act where S. 53 appears deals with the benefits available to the insured persons or dependants or the persons mentioned in the said chapter. The persons mentioned therein are entitled to various benefits like sickness benefit, maternity benefit displacement benefit and dependants benefits etc. It is, therefore, clear that the said chapter deals with the welfare and the compensation for which the persons are entitled to. The persons mentioned therein are entitled to various benefits like sickness benefit, maternity benefit displacement benefit and dependants benefits etc. It is, therefore, clear that the said chapter deals with the welfare and the compensation for which the persons are entitled to. But S. 53 of the Act bars against receiving or recovering compensation and damages under any other law for the time being in force or otherwise. It is no doubt true, generally speaking a tortfeasor cannot take advantage of the benefits received by the claimants under the Act and it is also not the intention of the legislature to give benefit to a tortfeasor to mitigate the damages that the claimants are entitled to under the act. But the intention of the legisture appears to be that the insured person or his dependant should approach only the Corporation under the Act either for the compensation or damages sustained by the insured person in respect of an employment injury. They could not even lay their claim against the employer for such an employment injury Under the Act compulsory insurance scheme was introduced under which all persons in an insurable employment and the employers of such persons shall pay contribution in consideration for which they or their dependants become entitled in certain specific funds and to certain benefits The Act also provides for the establishment of the Employees' State insurance Fund, which, is to be held and administared by. the Corporation for the purpose of the Act. All employees in factories or establishments to which the Act applies shall be insured and the contributions to the fund shall be made by the employers and the employees. The Government, public bodies or private persons could also grant amounts to the Corporation fowards the fund. Initially the contribution is to be made by the employers on behalf of the employees as well, but the employees' share is to be realised from their wages. The insurance fund will be mainly derived from employers and workmen. The employer will be entitled to recover the workmen's share from the wages of the workmen concerned. Initially the contribution is to be made by the employers on behalf of the employees as well, but the employees' share is to be realised from their wages. The insurance fund will be mainly derived from employers and workmen. The employer will be entitled to recover the workmen's share from the wages of the workmen concerned. A perusal of the relevant provisions of the Act would indicate that the intention of the legislature was to see that the persons who are entitled to the reliefs under the Act could only seek for all benefits under the Act from the "corporation under the Act and not to seek remedies either under any other similar "enactment" or any other law for the time being in force". The decision of this Court in Hindustan Aeronautic's case (1) cannot be pressed into service by the claimants as it has been held therein that the law of Torts is not an enactment and that therefore S. 61 of the Act is not a bar to the claimants to claim benefits under other enactments. It may also be mentioned here that S. 61 appears though in Chapter V of the Act, it comes under the specific heading of "general provisions" and not under "benefits" under the same Chapter. We are also not in agreement with the submission of Sri Narasimhan that according to the rule of construction of ejusdem generis that 'any other law' would only mean any other analogous law' and the words "time being in force" points. that law to be an enactment and not the general law of Torts. If we accept the interpretation so put by the learned Counsel, we would be narrowing down the scope of S. 53 of the Act and also the intention of the legislature in enacting the said section. If it was the intention of the legislature to confine the bar contemplated under S. 53 of the Act, then nothing prevented the legislature to use the very words used in S 61 of the Act, namely, "any other enactment" The very fact that the words used in S. 53 of the Act are "any other law" clearly indicates that it is not a mere "enactment" but "any other general law" under which the claimants could have sought compensation, but for S. 53 of the act. ( 14 ) IN Workmen of Dimakuchi Tea estate v. Management (2) at page 356 while dealing with interpretation of statutes, when there is a doubt in their meaning, the Supreme Court has stated thus.-"the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained (Maxwell, Interpretation of Statutes, 9th Edi. p. 55) " ( 15 ) APPLYING the aforesaid principle what follows is that the object which the legislature had in view while enacting S. 53 of the Act is to see that the insured person or his dependants, who were entitled to the benefits under the Act, could only approach the Corporation under the act in respect of any employment injury sustained by the insured person and not seek relief or reliefs like compensation or damages either under the Workmen's Compensation Act or any other law for the time being in force or otherwise, as otherwise the employer was likely to face double jeopardy If that is so, we are unable to agree with the contention of Sri narasimhan that S. 53 of the Act is analogous to the provisions of S. 61 of the Act and therefore, there is no bar for the claimants to seek compensation or damages under the general law of Torts. ( 16 ) IT was not seriously disputed before us that eight persons were injured and two persons died on account of the employment injuries sustained by them and that therefore they were entitled to all the benefits and compensation under the Act. S. 51 (C) of the Act deals with accidents happening while the insured person is travelling in employer's transport. It was also not disputed before us that all the injured as also the two deceased were insured persons under the Act in the factory. S. 51 (C) of the Act deals with accidents happening while the insured person is travelling in employer's transport. It was also not disputed before us that all the injured as also the two deceased were insured persons under the Act in the factory. It is admitted that the bus in question belonging to the K. S. R. T. C. was taken on contract basis by the N. G. E. F. in order to facilitate its workmen to reach and thereafter return to their respective houses from the factory. N. G. E. F. has also been impleaded as a party in some of the claim peititions. It contended that the bus in question belonged to and was owned by the k. S. R. T. C. and it had only engaged the vehicle on contract basis as per the agreement and therefore the said bus was not under its control nor the driver of the said bus was an 'employee of the N. G. E. F. But the agreement of contract produced in the case clearly indicates that the KSRTC had undertaken to take the employees of the N. G. E. F to the factory in their buses. In ESIC Trichur v. Suhara beevi (3) it has been held that if a worker of a factory covered by the act travels in a bus provided by the factory or if the fare is subsidised by the Company, the worker could be deemed to travel in the course of the employment in the fatal bus. In the said case the factory had subsidised the bus fare at 70 per cent and that was being done with the sole object that the employees should travel in the bus, so as to be able to report for duty in time and also return without delay. Under those circumstances it was held that the use of the bus was a proved necessity and it gave rise to an implied obligation on his part to travel in the said bus as part of his duty. The definition of 'employment injury' appearing in s. 2 (8) of the Act means that a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territoral limits of India. The definition of 'employment injury' appearing in s. 2 (8) of the Act means that a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territoral limits of India. Reading s. 2 (8) along with Section 51-C of the Act, it is proved that the eight injured persons and the two deceased persons sustained injuries while they were travelling in the bus run by the respondents in pursuance of a contract that was entered into between the n. G. E. F. and K. S. R. T. C. and therefore the in Junes sustained and also this death of two persons are nothing but employment injury. As already stated, the remedy open to the eight injured, who were insured persons and the legal representatives of the two deceased, who are dependants, for compensation or damage is to approach the Corporation constituted under the Act and not the tribunal constituted under the Motor vehicles Act as there is a bar for them to seek redress under the Motor vehicles Act or the Workmen's Compensation act or any other law for the time being in force. If that is so, the view taken by the Tribunal in this behalf is in accordance with law and cannot be interfered with in the view we have taken, it is not necessary for us to deal with the question of actionable negligence as also the amount of compensaation that each of the claimants is entitled to and the findings of the Tribunal cannot be sustained in view of the fact that such claim petitions are not maintainable before it. It is, however, made clear that claimants are at liberty to approach the Corporation for the reliefs that they are entitled to under the Act as they were prosecuting their remedies all these years in a wrong forum. In the view we have taken cross-objections filed in MFA's 1021, 1023 and 700 of 1979 would not arise for consideration. In the result, for the reasons stated above, all these appeals fail and are dismissed. In the circumstances of the case, we make no order as to costs. --- *** --- .