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1981 DIGILAW 365 (KAR)

JAYAMMA, D. v. S. GOVINDASWAMY

1981-12-08

A.K.LAXMESHWAR, G.N.SABHAHIT

body1981
SABHAHIT, J. ,, J. ( 1 ) THE owner of the vehicle in question and the insurer have presented this appeal, aggrieved by the judgment and award dated 31-10-1980, passed by the Claims Tribunal, Hassan, in MVC No. 25/79 on its file, awarding compensation of Rs. 50,000 to the claimants. ( 2 ) IT is the case of the claimants that one Ramalingam was the driver of the lorry bearing Registration No. TMV 3299. It was a Leyland Tanker belonging to respondent no. 2 in the petition. It was in sured with respondent No. I in the petition. He was driving the lorry on 24 10-1978 on Bangalore-Mangalore road and at about 10 30 P. M. near Alur in hassan District, he lost control of the lorry while negotiating a curve; and the lorry fell in a ditch and the driver sustained fatal injuries and died on the spot. The first and second claimants are the parents of Ramalingarn, The third claimant is the widow of the deceased. The 4th, 5th and 6th claimants are the minor children of Ramalingam the deceased. The claimants claimed compensation of Rs. 1 50,000 from the respondents. The owner of the lorry contested the claim stating that the lorry was well maintained and that the accident was due to rash and negligent driving of the lorry by the deceased himself and as such he contended that he was not liable to pay any compensation to the claimants. ( 3 ) THE Tribunal raised the following issues as arising for its consideration. (1) Whether the claimants prove that the accident was due to rash and negligent driving of the lorry by its driver ? (2) If so, what is the quantum of compensation to which the claimants are entitled? (3) Who are liable to pay the compensation ? (4) What order ?thereafter, however, the Tribunal thought that it was not necessary to raise the first issue as the accident was the result of rash and negligent driving of the lorry by deceased himself and it deleted it and substituted it by Issue No. 1 (a ). It reads : 1 (a ). Whether the petitioners are entitled to claim compensation for the death of the driver of the lorry in the accident ? ( 4 ) OBVIOUSLY the Tribunal must have thought that the application was maintainable under the Workmen's Compensation act. It reads : 1 (a ). Whether the petitioners are entitled to claim compensation for the death of the driver of the lorry in the accident ? ( 4 ) OBVIOUSLY the Tribunal must have thought that the application was maintainable under the Workmen's Compensation act. In that view, the Tribunal awarded compensation of Rs. 50,000 to the claimants. Aggrieved by the said judgment and award, the owner of the lorry and the insurer have come up with the above appeal before this Court. ( 5 ) THE learned Counsel appearing for the applicants strenuously urged before us that the Tribunal was not justified in deleting Issue No. 1 and in substituting it by issue No. 1 (a ). He further submitted that since the accident was due to rash and negligent driving of the lorry by the deceased himself, no compensation could be awarded under S. 110-A of the Motor vehicles Act. ( 6 ) THE sole point, therefore, that arises for our consideration in this appeal is : whether the claim for compensation on the facts of this case could be entertained under S. 110 -A of the Motor Vehicles Act? ( 7 ) IT is settled law that the person who claims compensation under S. 110-A of the Motor Vehicles Act, has to establish that the accident causing injury or death was due to actionable negligence. That is not, however, necessary under the provisions of the Workmen's Compensation act. Hence, the death of the driver in the present case, without more, falls within the purview of the provisions of the Workmen's Compensation Act. It is for that the learned Counsel for the appellants submitted that the application under S. 110-A of the Motor Vehicles Act could not be entertained on the facts of this case where the accident was the result of rash and negligent driving of the lorry by the deceased himself. ( 8 ) S. 110 AA of the Motor Vehicles act reads :"notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death 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 claim such compensation under either of those Acts but not under both". ( 9 ) IT is no doubt true that at first blush it appears that the claim could be made in a case like the present one either under the Motor Vehicles Act or under the workmen's Compensation Act. But a careful reading of the section would reveal that an application under S. 110 A would lie under the Motor Vehicles Act only where the facts give rise to such a claim under the provisions of the Motor Vehicles act. ( 10 ) TO make a claim under the provisions of the Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor vehicles Act is not maintainable. The point is settled by a decision of the Supreme court of India in the case of Minu B. Mehta v. Balkrishnaramachandra Nayan (1 ). Therefore, if the accident, as in the present case, has occurred due to the rash and negligent driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under S. 110-A of the Motor Vehicles Act by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle, no doubt an application can lie under S. 110 A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry. ( 11 ) THE facts of the case would attract the doctrine of res ipsa loquitur (the thing speaks for itself ). While negotiating the curve the lorry which was under the control of its driver, namely the deceased ramalingam, left the road and fell into a ditch. Without more, therefore, it is to be presumed that the accident was the result of rash and negligent driving of the lorry by its driver, namely, the deceased ramalingam. Therefore, it is obvious, that his legal representatives cannot claim compensation under S. 110-A of the Motor vehicles Act. Without more, therefore, it is to be presumed that the accident was the result of rash and negligent driving of the lorry by its driver, namely, the deceased ramalingam. Therefore, it is obvious, that his legal representatives cannot claim compensation under S. 110-A of the Motor vehicles Act. ( 12 ) IF the person injured in the accident in this case was an employee for example, a cleaner in the lorry or a person employed for the purposes of loading and unloading, then there would be an option for him either to claim higher compensation under s. 110-A of the Motor Vehicle Act proving actionable negligence on the part of the driver of the vehicle or to approach and get compensation under the Workmen's Compensation Act, without the necessity of proving negligence on the part of the driver. It is in such contingencies that S, 110-AA of the Motor Vehicles Act is attracted. But, where the accident is entirely due to the rash and negligent driving of the lorry by the deceased himself, his legal representatives cannot claim compensation under S. 110-A of the motor Vehicles Act and therefore, S. 110-AA of the Motor Vehicles Act is not attracted. ( 13 ) IN the circumstances, therefore, it is obvious, that the petition for compensation under S. 110 A of the Motor Vehicle act is misconceived. It should be an application under the Workmen's Compensation Act, if at all, before the concerned authority. ( 14 ) IN the result, therefore, the appeal is allowed. The judgment and award of the Tribunal are set aside and the claimants are directed, if they are so advised, to institute an application under the Workmen's compensation Act and the period spent in the present proceeding shall be excluded in calculating the period of limitation before the Commissioner under the workmen's Compensation Act. No costs. ( 15 ) FOR the foregoing reasons the cross-objections are dismissed. --- *** --- .