Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1454 (RAJ)

Shakila v. Veer Singh

2000-12-07

J.C.VERMA

body2000
Honble VERMA, J.–The present Misc. Appeal No. 1030/2000 has been preferred against the order dated 15.5.2000 passed by Commissioner under Workman Compensation Act by the dependents of workman Nijamuddin @ Nijju Khan. The connected appeal, which is under defect, has been preferred by the employer Veer Singh. (2). For the reason that both the appeals have arisen out of the same accident and relating to same parties, therefore, it was ordered that the appeal filed by the employer be attached and both the appeals are being decided by this common order. The registry shall put regular number of appeal as the formal defects are waived and also for the reason that decision of the appeal No. 1030/2000 shall also be applicable to the appeal filed by employer. (3). The deceased Nijamuddin was admittedly an employee of employer Veer Singh, who was employed as driver of the truck No. RJ-01/G-790, while Nijamuddin was on duty on 17.1.99 and under the employment of Veer Singh, he was detailed to get the truck load with rocky stones from a mine situated at Balriya Ki Pahari. During the process of loading stones, he was hit upon his head by a stone which ultimately resulted in his death. The FIR was also registered and notice was issued to owner and he has apprised about the accident and his consequential liability. The dependents of the employee filed the claim application before the Commissioner under the Workman Compensation Act. (4). After framing the relevant issues in regard to deceased having died while being in employment; age and salary of the deceased employee; dependancy of claimants; and entitlement of claimants to the compensation. After recording the evidence of witnesses the Commissioner decided all the issues in favour of claimant, but had exonerated the Insurance Company from its liability only on the ground that at the time of accident, the truck was not in motion and was in stationary position that is according to the Commissioner, even though the workman was on duty but he sustained the injury while the truck was being loaded and it was in stationary position. The Insurance Company has been exonerated on the ground that the workman has not sustained the injury while the truck was in motion and it was in stationary position. The Insurance Company has been exonerated on the ground that the workman has not sustained the injury while the truck was in motion and it was in stationary position. The Commissioner was of the opinion that even the truck driver died while on duty under the employment, but until and unless he dies in moving truck, the Insurance Company is not liable to pay and compensation as per policy. (5). Both the appeals have been filed by claimants as well as employer for setting aside and modifying the order of the Commissioner with the prayer that if the truck was insured under the Act and the premium was paid for that purpose and if the driver of truck died while on duty and under employment, it makes no different whether he dies in moving truck or when the material was being loaded in the truck. (6). On the pleadings of the parties, the Commissioner had passed the following order:- 1. The deceased at the time of accident was on duty and under the employment of employer. 2. The deceased was of the age of 30 years and was earning Rs. 2,000/-per month. 3. The claimants were dependents of the deceased. 4. The truck was not in motion and the truck was in stationary position as the stones were being loaded and the truck had not met with any accident and that the deceased had not died in moving truck, therefore, the Insurance Company was not liable to pay compensation. 5. On the quantum of compensation the Commissioner held that the claimants are entitled to received the compensation Rs. 2,07,980/-. (7). Learned counsel for the appellants submits that the Insurance company could not have been exonerated for the reason that the truck was insured and the premium was paid and the workman had died while on duty and the truck was being loaded, therefore, the Insurance company was liable to pay the compensation. (8). Reliance is placed on the judgment of High Court of Gauhati in case of The North Goalpara Motor Workers Cooperative Society Ltd. vs. New India Assurance Col Ltd. and others. (1). Wherein it has been held that use of motor vehicle covers accidents which occur both when vehicle was in motion as also when it is stationary. (8). Reliance is placed on the judgment of High Court of Gauhati in case of The North Goalpara Motor Workers Cooperative Society Ltd. vs. New India Assurance Col Ltd. and others. (1). Wherein it has been held that use of motor vehicle covers accidents which occur both when vehicle was in motion as also when it is stationary. The accident had arisen out of use of vehicle in question, it was held that the Insurer cannot avoid its liability of payment of compensation. (9). Yet in another case of New India Assurance Co. Ltd. vs. Lakshmi (2), the injury sustained on account of a fertilizer bag fallin upon in the process of unloading it from a stationary lorry, the Kerala High Court had held that it is an accident arising out of the use of a motor vehicle. The basis requirement of such claim is only that it should arise out of the use of motor vehicle. There is no warrant for the contention that the accident should take place at a time when the vehicle was in motion or the accident has resulted in damage to the vehicle. All that is required is that there should be an accident, viz. something unexpected and unintended and that should arise out of the user of the vehicle. (10). Similar is the law laid down on by this court in case of Ram Chandra and others vs. Rajasthan State Road Transport Corporation and others (3), to the effect that the liability cannot be confined to the period it is in motion only i.e. in the moving state, because it may be in the use while it is stationary, also. (11). In case of Rita Devi (Smt.) & Ors. vs. New India Assurance Co. Ltd. & Anr. (4), the autorickshaw was hired by certain persons with the object to steal the vehicle killing the driver, the Honble Apex court has held that the murder of the driver was an accidental murder and the legal representatives of deceased driver were held entitled to compensation for his death. It was held by the Apex Court that the stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing of the autorickshaw was only incidental to the act of stealing of the autorickshaw. It was held by the Apex Court that the stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing of the autorickshaw was only incidental to the act of stealing of the autorickshaw. Therefore, the Apex court held that death was caused accidentally in the process of committing theft of the autorickshaw, therefore, the Decision of Tribunal was right to come to the conclusion that the claimants were entitled to compensation as claimed by them and the judgment of High Court was wrong in reversing the judgment of Tribunal and coming to the conclusion that the death was not caused by an accident involving the use of motor vehicle. It was observed that the Acts Viz, the Motor vehicles Act and the Workmens Compensation Act is to provide compensation to the victims of the accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. This conclusion is supported by Sec. 167 of the Motor Vehicles Act under which, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the work `death in the Workmens Compensation act is certainly applicable to the interpretation of the word `death in the Motor Vehicle Act also. (12). In the case of Rita Devi (supra), the High Court had come to the conclusion that there was no motor accident as contemplated under the Act and the case was that of murder and not of accident, therefore, no petition for compensation was maintainable. The deceased was employed to drive autorickshaw, was dutybound to have accepted the demand of fare paying passengers to transport them to the place of their destination. The deceased was employed to drive autorickshaw, was dutybound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing autorickshaw, they had to eliminate the driver then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The Tribunal had rightly awarded the compensation. (13). The present case related to compensation to be paid under Workmen Compensation Act relying on the principles as laid down in the case of Rita Devi (supra). The insurance company cannot escape from its liability. The death in whatever manner while on duty and during employment renders the employer liable to pay compensation under Workmen Compensation Act and if the vehicle is insured for the Workmen Compensation Act as well, in that situation whatever the liability was incurred by the employer shall automatically shifted to the insurer. In such circumstances, the Insurance Company is bound to be held liable for payment of compensation under the Workmen Compensation Act. (14). For the reasons and discussions above, the order dated 15.5.2000 passed by the Authority, Workmen Compensation Act modified to the extent that the Insurance Company is also liable to be pay the compensation. The compensation and the interest thereon as assessed shall be payable by the Insurance Company. The cost of Rs. 5,000/-is also imposed on the Insurance Company to be paid to claimants by the Insurance Company. The cost shall be paid by the Insurance within a period two months. (15). It has been submitted that the amount of compensation has already been deposited by the employer. The same shall be disbursed to claimants forthwith, if not released already. However, the employer shall be entitled to recover the amount of compensation from the Insurance Company. (16). For the reason and discussions above both the Misc. Appeal are allowed with the cost of Rs. 5000/-to be paid to claimants by the Insurance Company.