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1992 DIGILAW 340 (GUJ)

MAVJIBHAI RUDABHAI DAFDA v. MANJI SOMA DANGAR

1992-10-19

J.N.BHATT, V.H.BHAIRAVIA

body1992
J. N. BHATT, J. ( 1 ) A short but substantial question which has surfaced in this appeal is as to whether a contractor working for the Government could be held liable fur compensation in a claim petition preferred under the Motor Vehicles Act and based on fault liability on account of a road accident causing death of a workman while doing the road rolling work ? ( 2 ) IN order to appreciate the merits of the aforesaid point in focus, it would be necessary to refer to the relevant facts and circumstances leading to the rise of this appeal. ( 3 ) THE appellant is the original opponent No. 5, whereas, the respondents nos. 4 to 8 are the original claimants and respondents Nos. 1, 2, 3 and 9 are the original opponents Nos. 1, 2, 3 and 4, and they are hereinafter referred to as the original claimants and original opponents for the sake of convenience and brevity. ( 4 ) THE accident in question occurred on 20-3-1981 at about 3-30 p. m. on karmal Dam site in Rajkot District. One deceased Hari Vala was knocked down and crushed under the Road Roller No. G. R. R. 2042. Therefore, the heirs and the legal representatives of the deceased, original claimants Nos. 1 to 5, filed motor Accident Claim Case No. 484 of 1981 before the Motor Accident Claims tribunal (Main), Rajkot for Rs. 1,00,000 as compensation contending that the driver of the said road roller was rash and negligent and responsible for the accident. The original opponent No. 1 was the driver, original opponents Nos. 2 and 3 were the owners and original opponent No. 4 was (he insurer, which came to be deleted in the course of the proceedings and original opponent No. 5 (appellant-herein) was the Government Contractor. ( 5 ) THE claim petition was challenged by the opponents. Original opponent No. 5, the contractor, also questioned his liability for the payment of compensation. According to his contention, he was not liable for the payment of compensation in the proceedings under the motor Vehicles Act. ( 5 ) THE claim petition was challenged by the opponents. Original opponent No. 5, the contractor, also questioned his liability for the payment of compensation. According to his contention, he was not liable for the payment of compensation in the proceedings under the motor Vehicles Act. On the facts and circumstances of the case, the Tribunal reached to the conclusion that the accident in question was resulted on account of rash and negligent driving on the part of the driver of the road roller, original opponent No. 1, and there was no contributory negligence on the part of the deceased. It was also found by the Tribunal that the deceased Hari Vala died on account of the injuries sustained by him in the said accident. As regards the liability, the Tribunal held that original opponents Nos. 1, 2 and 3 are jointly and severally liable for the payment of compensation to the claimants. It was found that there was no insurance in respect of the offending road roller. Therefore, original opponent No. 4, Insurance Company, came to be deleted. However, original opponent No. 5, Mavjibhai, the appellant herein, was found to be liable for the payment of compensation to the extent of Rs. 18,000 out of the amount of compensation of Rs. 46,500 awarded by the Tribunal. ( 6 ) BEING aggrieved by the said finding with regard to the liability, the original opponent No. 5, Mavjibhai, has come up in this Civil Appeal challenging the legality and validity of the impugned judgment and award against him. The sole contention raised before us in this appeal on behalf of the appellant is that the appellant who was a contractor is not liable for the payment of compensation to the extent of Rs. 18,000 awarded by the tribunal against him. This contention appears to be full of substance. ( 7 ) ADMITTEDLY, the appellant, original opponent No. 5, the contractor, was not the driver, owner or insurer in respect of the offending road roller. However, the Tribunal fastened him with the liability for the payment of compensation to the extent of Rs. 18,000 with interest and proportionate costs thereon out of the total amount of Rs. 46,500, holding that he was the employer of the deceased and, therefore, he would be liable to the extent under the Workmens Compensation Act, 1923. However, the Tribunal fastened him with the liability for the payment of compensation to the extent of Rs. 18,000 with interest and proportionate costs thereon out of the total amount of Rs. 46,500, holding that he was the employer of the deceased and, therefore, he would be liable to the extent under the Workmens Compensation Act, 1923. With due respect, this finding, in our opinion, is not only erroneous but is illegal. ( 8 ) IT is an admitted fact that the claim application was filed for the payment of compensation by invoking the provisions of Sec. 110-A of the motor Vhides Act, 1939. It was not an application under the Workmens compensation Act, 1923. However, the Tribunal placed reliance on clause no. (6) of the tender agreement produced at Ex. 38. No reliance could be placed on such a clause in tender agreement produced at Ex. 38, for fastening the liability for the payment of compensation under the Motor vehicles Act. Clause (6) of the said tender agreement produced, at Ex. 38, reads as under :"the piece worker shall be responsible for and hall pay any compensation to his workman payable under the Workmens Compensation Act, 1923 (VIII of 1923) hereinafter called the said Act, for injuries caused to workman as principal under sub-sec. (1) of Sec. 2 of the said Act on behalf of the piece worker. " ( 9 ) AT the time when the unfortunate road accident occurred, the road roller was engaged for rolling work which was not a part of contract work given to the original opponent No. 5. It is not in dispute that the rolling work was to be done by the Department. Although construction of road work was to be done by original opponent No. 5, the contractor, rolling work was to be done by the department and not by the contractor, original opponent No. 5. It is true that the deceased was a workman engaged by the original opponent No. 5, the contractor for the rolling work to be carried out by the Department of the Government. However, the liability of the contractor would be limited to pay any compensation to his workman payable under the Workmens Compensation Act, 1923, in view of Clause (6) of the tender agreement produced at Ex. 38. However, the liability of the contractor would be limited to pay any compensation to his workman payable under the Workmens Compensation Act, 1923, in view of Clause (6) of the tender agreement produced at Ex. 38. In the event of any application for compensation under the Workmens Act, there would have been no defence on the part of the contractor. original opponent no. 5 not only in view of the aforesaid Clause (6) but also under the provisions of Sec. 12 of the Workmens Compensation Act. In such a case, two remedies were open for the legal representatives of the deceased to pursue for the compensation; one under the Workmens Compensation Act and another under the Motor Vehicles Act as the death occurred on account of and by use of motor vehicle. The claimants selected the forum under the Motor Vehicles Act. Under the Motor Vehicles Act, the award can be passed against the tortfeasors and the persons vicariously liable, that is, the owner of the vehicle. The original opponent No. 5, admittedly, was neither the driver nor the owner in respect of the offending vehicle. Therefore, in our opinion, the contractor, original opponent No. 5, cannot be held liable for the payment of compensation in a proceedings arising under the Motor Vehicles Act as it is based on fault liability. The Tribunal has failed to consider this material aspect which has resulted into miscarriage of justice. In our opinion, the Tribunal should not have held original opponent No. 5, the contractor, liable for the payment of compensation even under Clause (6) of the tender agreement Ex. 38. In the result, this appeal is required to be allowed. The finding of the Tribunal that original opponent no. 5, appellant herein, is liable for the payment of compensation to the extent of Rs. 18,000 with interest and proportionate costs, thereon, is required to be quashed. ( 10 ) IN the result, the appeal is allowed. In the circumstances of the case, there shall be no order as to costs. .