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1991 DIGILAW 495 (MP)

Jogendrasingh v. Gulsherkhan

1991-11-15

R.K.VERMA

body1991
ORDER R.K. Varma, J. -- This order shall also govern the disposal of Misc. Appeal No. 159/83 (Rajpal and Company v. Gulsherkhan and others). 2. This is an appeal filed by the owner of the offending vehicle (tractor-trolley) bearing registration No. MPN 6300 against the Award dated 4.4.83 made by the Member Motor Accident Claims Tribunal, Mandleshwar in Claim Case No. 36/80 whereby the learned Tribunal has awarded a total compensation of Rs. 18,000/- in respect of the death of the deceased employee Mukhtyarkhan, who died in the motor accident on 16.12.1979, while driving the said tractor. 3. The facts of the case, giving rise to this appeal, briefly, stated are as follows:- The deceased Mukhtyarkhan was in the employment of the appellant at the petrol pump belonging to the appellant Jogendrasingh S/o Tejasingh Rajpal under the name Rajpal and Company on a salary of Rs. 210/- per month for retail sale of petrol and for driving the tractor etc., On 16.12.79, the date of accident, the tractor- trolley bearing registration No. MPN 6300 was being driven by the deceased Mukhtyarkhan on Sendhwa-Barla road for fetching wood. He met with an accident and suffered serious injuries. He was removed to the District Hospital at Barwani for treatment, but he succumbed to his injuries and died in the hospital on 17.12.79. 4. According to the claim of the claimants who are the legal representatives of the deceased, the said Mukhtyarkhan was carefully driving the tractor-trolley on Sendhwa-Barla road, but since the tractor was not kept in good repairs, it developed mechanical defect and went out of control resulting an accident in which the deceased Mukhtyarkhan received injuries to which he succumbed. It is the case of the claimants that the owner of the tractor in question which stood insured with the Insurance Company-respondent No.8 on the date of accident and that the appellant being the owner of the tractor and employer of the deceased Mukhtyarkhan is liable to pay compensation and that the respondent No. 8 Insurance Company having insured the owner in respect of the tractor in question, during the material period covering the date of accident is also liable jointly and severally. 5. The appellant resisted the claim and took the plea that he was not carrying on the business directly with the Rajpal and Company- respondent No.7 and that the deceased was not in his employment. 5. The appellant resisted the claim and took the plea that he was not carrying on the business directly with the Rajpal and Company- respondent No.7 and that the deceased was not in his employment. Another written-statement was filed on behalf of Rajpal and Company respondent No.7 taking the plea that the tractor did not belong to it and the deceased was not employed for driving the tractor. 6. The respondent No.8 Insurance Company took the plea that the deceased was not possessed of - driving licence and as such the Insurance Company was not liable. It is also the defence of the Insurance Company that the Tribunal had power to award compensation only in accordance with the provisions of Fatal Accidents Act and not under the Workmen's Compensation Act. 7. The learned Tribunal, after trial of the claim petition, on the basis of the evidence adduced in the case, found that the c1aimants were legal representatives of the deceased Mukhtyarkhan, that the deceased Mukhtyarkhan was driving the tractor in question in the course of his employment and that the tractor met with an accident on account of fault developed in the tractor, resulting in the death of the deceased Mukhtyarkhan. The learned Tribunal held that the Tribunal has jurisdiction to make an Award in the instant case and that the appellant and respondent No.7 were liable under the Motor Vehicles Act and awarded a total compensation of Rs. 18,000/- in respect of the death of the deceased Mukhtyarkhan against the appellant and - respondent No.8, the learned Tribunal found that the Insurance Company was not liable since it was not proved that the deceased Mukhtyarkhan was a licensed driver. 8. Being aggrieved by the Award, the tractor-owner has filed this appeal. The respondent No.7 Rajpal and Company has also filed the connected appeal Misc. Appeal No. 187/83 on similar grounds. 9. The appellant has raised a ground in the memo of appeal to the effect that the learned Tribunal has committed an error in applying the principles of Workmen's Compensation Act while deciding the quantum of compensation in the present case. The respondent No.7 Rajpal and Company has also filed the connected appeal Misc. Appeal No. 187/83 on similar grounds. 9. The appellant has raised a ground in the memo of appeal to the effect that the learned Tribunal has committed an error in applying the principles of Workmen's Compensation Act while deciding the quantum of compensation in the present case. But during the arguments, the learned counsel for the appellant has raised a mere fundamental contention that the learned Tribunal had no jurisdiction to entertain the claim application under Section 110-A of the Motor Vehicles Act inasmuch as no allegation of negligence on the part of the driver or owner has been made in the claim petition. The mere involvement of a motor vehicle in the accident by itself and without more, would not confer on the Claims Tribunal jurisdiction to entertain a claim. The learned counsel has in support of his contention cited a decision of the High court of Punjab and Haryana in Jaswantraj v. National Transport and General Co. Ltd. and another (1972 A.C.J. 21) and another decision of the Allahabad High Court in Union of lndia v. Sushila deviand others (1990A.C.J.1). 10. It is true that prior to the amendment of the Motor Vehicles Act by Act No. 47 of 1982, providing for vehicle owner's liability on the principle of 'No Fault', the jurisdiction for claiming compensation on account of accident under the Motor Vehicles Act could be invoked only upon the allegation of fault i.e. negligence on the part of the driver or the owner, leading to the accident. The motor accident involved in this appeal is of 16.12.1979 i.e. prior to the amendment Actor 1982. But on a perusal of the claim petition, I find that the contention of the learned counsel for the appellant is not borne out on facts. In paragraph 5 of the claim petition, the pleading is to the effect that the tractor-owner i.e. the appellant had not kept the tractor in question in good repairs and as such, it developed defect and for this reason because of the negligence on the part of the appellant No.1, the vehicle was involved in the accident and the deceased sustained injuries and died in the accident. In paragraph 2 of the claim petition it is alleged that the deceased was driving the tractor in question with care, but due to defect developed in the tractor after travelling a small distance, the tractor met with an accident. Thus, on facts alleged as above, it cannot be said that the claim petition does not contain the allegation of negligence and as such, is not maintainable before the Motor Accident Claims Tribunal. 11. It is no doubt true that the learned Motor Accident Claims Tribunal has held that the claimants could not prove that the accident occurred due to development of defect in the tractor because the deceased himself was the driver who would have been the best witness on the point, had he been alive. But for entertainment of the claim petition by the learned Tribunal under Section 110-A of the Motor Vehicles Act what is of consequence is whether or not negligence had been alleged. In the instant case it has been so alleged and, therefore, the claims petition must be held as maintainable. 12. The learned counsel for the appellant has further contended that the learned Tribunal has erred, in applying the principles of Workmen's compensation Act while deciding the quantum of compensation in the present case. It has been established in evidence and has been found by the learned Tribunal that the deceased Mukhtyarkhan was driving the offending tractor in the course of his employment and that his employers were the appellant and the respondent No. 7. The mode of assessment of Compensation can be passed on settled principles or on statutory guide lines. In case of an employee of the vehicle-owner who is governed by the Workmen's Compensation Act, 1923, the method of compensation is provided in Schedule IV of that Act. I, therefore, see no reason why this schedule cannot be adopted as a mode of assessment of compensation payable in respect of the death of the deceased who was an employee covered under the definition of the workman given in that Act. In fact, any other mode of computation of compensation on the allegation of fault on the part of the vehicle-owner employer should yield the quantum of compensation not less than what is statutorily provided as compensation for the Workmen under the Workmen's Compensation Act, irrespective of consideration of fault. 13. In fact, any other mode of computation of compensation on the allegation of fault on the part of the vehicle-owner employer should yield the quantum of compensation not less than what is statutorily provided as compensation for the Workmen under the Workmen's Compensation Act, irrespective of consideration of fault. 13. The learned counsel for the appellant has cited a decision of the High Court of Rajasthan in National Insurance Co. Ltd. v. Shanti and others; (1987 AC.J. 588) which is a case of death of a tractor-driver due to his own rash and negligent driving and as such, the claim application under the Motor Vehicles Act against the employers was held not maintainable and it was held that the proper forum is the authority under the Workmen's Compensation Act. But the instant case is distinguishable on facts inasmuch as there is no finding of rash and negligent driving and the claimants have, on the contrary alleged the negligene on the part of the vehicle-owner in not keeping the vehicle in good repairs, which allegedly led to the accident. The contention of the learned counsel for the appellant has, therefore, no merit and must be rejected. 14. The learned counsel for the appellant has next contended that the learned Tribunal has wrongly exonerated the insurance company from the liability on the grounds that the claimants have not proved that the deceased driver held a valid licence while driving the vehicle at the time of the accident. It has been submitted that the learned Tribunal has wrongly placed the burden of proof on the claimants. The burden of proof in fact lay on the Insurance Company which had set-up the plea in defence that the deceased driver was not possessed of a valid driving licence. This contention of the learned counsel must be accepted. It is a settled principle that the burden of proof is on the Insurance Company to prove the breach of condition of the policy and if the condition is that the vehicle must be driven by a licensed driver, the burden should be upon the Insurance Company to establish that the vehicle was being driven by an unlicensed driver and more so, when the driver himself dies in the accident and is not available for being examined as a witness. An authority in point, is a decision of the Supreme Court in Suresh Mohan Chopru v. Lakhi Prabhudayal and others; ( AIR 1990 SC 1979 ) The Insurance Company having failed to prove that the deceased driver was not possessed of driving licence, the liability under the Policy is enforceable. 15. In the result this appeal as also Misc. Appeal No. 157/83 (Rajpal and Company v. Gulsher Khan and others) are partly allowed inasmuch as the Insurance Company respondent No.8 shall also be jointly and severally liable with the appellant and respondent No.7 to pay compensation to the claimants respondents in respect of the death of the deceased driver as awarded by the learned Tribunal. There shall, however, be no order as to cost in both these appeals.