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2003 DIGILAW 478 (ALL)

National Insurance Co. Ltd v. Urmila Devi

2003-03-04

M.P.SINGH, S.P.SRIVASTAVA

body2003
S. P. SRIVASTAVA, J. ( 1 ) HEARD the learned counsel for the insurer appellant and Mr. B. P. Verma, the learned counsel for the claimants-respondents. ( 2 ) THE appellant has filed the present appeal under section 173 of Motor Vehicles Act feeling aggrieved by the award of an amount of Rs. 4,08,000 determined as just compensation which the dependants of the deceased Shyamvir Singh alias Pappu were found entitled to on account of his untimely death in an accident involving the offending motor vehicle. The deceased shyamvir Singh alias Pappu was claimed to be the cleaner-driver of the offending motor vehicle which had been insured by the appellant covering the risk. ( 3 ) IT may be noticed that the application filed by the dependants of the deceased shyamvir Singh alias Pappu had been filed under section 163-A of the Motor Vehicles act. ( 4 ) THE Motor Accidents Claims Tribunal vide the impugned judgment and award after carefully considering the evidence brought on record by the parties, had come to the conclusion that on the date of the death Shyamvir Singh alias Pappu was aged about 34 years. It was also found that the untimely death of Shyamvir Singh alias Pappu had been caused on account of the accident involving the motor vehicle which was insured by the present appellant covering the risk. The Tribunal returned a finding against the appellant holding that the deceased was having an income of rs.-3,000 per month. After calculating the amount of dependency excluding /3rd of the amount of Rs. 3,000 which was found to have been spent by the deceased on himself the annual dependency was held to be Rs. 24,000. Applying the multiplier of 17, the Tribunal came to the conclusion that the dependants of the deceased were entitled to an amount of Rs. 4,08,000 as compensation which was just. ( 5 ) THE learned counsel for the appellant has strenuously urged that taking into consideration the nature of the pleadings it was apparent that claimants had been claiming compensation on the ground that deceased had met his death while in the course of employment and consequently provisions contained in Workmens Compensation act were attracted. The contention is that in such a situation the amount of compensation cannot exceed the amount which a workman can get in the proceedings under the Workmens Compensation Act. The contention is that in such a situation the amount of compensation cannot exceed the amount which a workman can get in the proceedings under the Workmens Compensation Act. ( 6 ) THE learned counsel for claimantsrespondents, however, has urged that the insurer had issued a policy covering risk after taking a large amount of premium. The learned counsel for the claimantsrespondents has produced the cover note issued by the present appellant as well as the insurance policy which shows that an amount of Rs. 4,706 was accepted as premium by the insurer. This premium covered the risk of driver and cleaner both. It is further urged that there is no provision under the Motor Vehicles Act which can restrict the award of compensation to an amount as admissible under the provisions of the Workmens Compensation Act. ( 7 ) THE provisions contained in section 167 of the Motor Vehicles Act stipulate that notwithstanding anything contained in the Workmens Compensation Act, 1923 where the death of or bodily injury to, any person gives rise to a claim for compensation under Motor Vehicles Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of chapter X claim such compensation under either of those Acts but not under both. It is, therefore, obvious that the option is left to the person entitled to compensation to chose whether he would seek the remedy available under the Motor Vehicles Act or the Workmens Compensation Act. The provisions contained in section 168 of the motor Vehicles Act stipulate that Motor accidents Claims Tribunal has to determine the amount of compensation which appears to it to be just. ( 8 ) IN the present case the application seeking compensation had been filed specifically under section 163-A of the Motor vehicles Act. The provisions contained in section 163-A indicate that notwithstanding anything contained in Motor Vehicles act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. The use of non obstante clause in section 163-A of the Motor Vehicles Act is quite significant. It shows that the amount of compensation determined in the proceedings under the motor Vehicles Act which ought to be just cannot be limited to any amount as specified in the Workmens Compensation Act as the amount contemplated under section 163-A of the Motor Vehicles Act has to be determined notwithstanding anything contained in any other law for the time being in force. ( 9 ) IN the aforesaid circumstances it is obvious that the jurisdiction of the Motor accidents Claims Tribunal could not be taken to be abridged or limited in any manner by the provisions contained in the workmens Compensation Act. ( 10 ) LEARNED counsel for the claimantsrespondents in support of his submissions has placed reliance upon a decision of the apex Court in the case of Rita Devi v. New India Assurance Co. Ltd. , 2000 ACJ 801 (SC ). The aforesaid case also involved a controversy in regard to the claim raised by a workman who had died in the course of employment as a driver of a motor vehicle and the application seeking compensation had been filed under the provisions of section 163-A of the Motor Vehicles Act. ( 11 ) THE Apex Court in the aforesaid decision in the case of Rita Devi, 2000 acj 801 (SC), reversing the decision of the High Court had upheld the decision of the Motor Accidents Claims Tribunal allowing the application of the dependants of the deceased. ( 12 ) THE ratio of the aforesaid decision also indicates that the jurisdiction of the motor Accidents Claims Tribunal while determining the just compensation is not limited or abridged by the provisions of the Workmens Compensation Act. ( 13 ) THERE is yet other aspect of the matter which cannot be lost sight of. In the present case the insurer had not obtained the permission envisaged under section 170 of the Motor Vehicles Act. The contention of learned counsel for appellantrespondent is that his application had been filed for the purpose but had been rejected. A perusal of the memo of appeal indicates that the insurer has not challenged the order denying permission under section 170 of the Act. In fact there is no such grievance raised. The contention of learned counsel for appellantrespondent is that his application had been filed for the purpose but had been rejected. A perusal of the memo of appeal indicates that the insurer has not challenged the order denying permission under section 170 of the Act. In fact there is no such grievance raised. ( 14 ) IN the absence of the requisite permission under section 170 of Motor Vehicles Act, the claim of the insurer appellant against the quantum of the compensation determined by the Motor Accidents Claims tribunal is not sustainable in law and this aspect of the matter stands amply clarified from the observations made by Honble supreme Court in its decision in National insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC ). The ratio of the aforesaid decision stands squarely attracted in the circumstances of the present case. The learned counsel for the appellant has tried to assail the findings returned by motor Accidents Claims Tribunal against it but has not been able to demonstrate that the said findings can be taken to be suffering from any such legal infirmity which may justify an interference by this court. These findings are amply supported and warranted by the evidence and the material brought on record. This appeal is devoid of merit which deserves to be and is hereby dismissed. The amount of Rs. 25,000 deposited in this court by the appellant under section 173 of the Motor Vehicles Act be remitted to the Motor Accidents Claims Tribunal concerned within one month from the date an application is filed by appellant for the purpose so that it may be adjusted against the amount required to be deposited under this order. Appeal dismissed. . .