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2005 DIGILAW 85 (RAJ)

Kamla Devi v. Rajkiya Coal Depot

2005-01-11

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This appeal arises out of the award dated 02.07.1988 passed by the Motor Accident Claims Tribunal, Jaipur in MACT Claim Case No. 76/1980 which was filed for compensation on account of death of one Jagdish Prasad Sharma who died as a result of the injuries suffered by him in a motor accident which occurred on 21.01.1980. The learned Tribunal awarded in all a compensation of Rs. 1,19,880/-. The appeal has been filed for enhancement of the compensation. However, the main plea of the appellant is that the respondent No. 5 New India Assurance Company Ltd., the Insurer of the vehicle which was being driven by the deceased Jagdish Prasad Sharma and owned by respondents No. 4 and 4(a) Shri Bheru Lal and Smt. Ratan Devi respectively, has been absolved by the learned Tribunal of its liability to pay the compensation contrary to the evidence on the record. 2. The submission of the learned Counsel for the appellant is that according to the policy of Insurance, issued by the New India Assurance Co. Ltd. which is admitted and is available at page 89 of the record of Tribunal, goes to show that in addition to the basic premium, additional premium was charged by the Insurance Company for coverage of liability in respect of the driver. Therefore, the submission of the learned Counsel is that in accordance with the aforesaid additional premium having been charged by the Insurance Company, the Insurance Company was liable to pay the compensation in respect of the death of driver who was driving the vehicle bearing registration No. RRL-1387 which had been insured by it and was belonging to the Insured respondents No. 4 and 4(a) Bherulal and Smt. Ratna. In this view of the matter, the submission of the learned Counsel for the appellant is that the learned Tribunal has erred in absolving the insurer of the vehicle. 3. In response to the aforesaid, learned Counsel Shri Bardhar, appearing on behalf of the Insurance Company has submitted that even assuming that risk in respect of the driver had been covered by the policy under the cover note dated 04.06.1979 which was valid upto 03.06.1980 by charging additional premium in respect of the driver vide receipt No. 106803 dated 04.06.1979, unless and until there was negligence on the part of the driver, the Insurance Company would not be liable. Further submission of the learned Counsel for the Insurance Company is that appellant did not choose to file the claim under the Workmens Compensation Act, 1923 before the Commissioner but instead have chosen to file the claim before the Motor Accident Claims Tribunal under the provisions of Motor Vehicles Act, 1939 and consequently, even though the liability of the driver was covered under the policy, the Insurance Company is not liable to pay the compensation. In the alternative also it has also been submitted that in case respondent No. 5, New India Assurance Company Ltd. would be held liable then liability may be fixed only to the extent of the liability as prescribed under the Workmens Compensation Act, 1923. 4. I have given my anxious consideration on the submission made at the Bar. From the perusal of the cover-note issued by the respondent No. 5 New India Assurance Company Ltd. in respect of the Motor Vehicle No. RRL-1387, which was being driven by the deceased as a paid employee for respondents No. 4 and 4(a) which met with an accident involving a truck bearing registration No. RJT-3497 insured with the respondent No. 3 National Insurance Company Ltd., was during the course of his employment and that option of choosing the forum for filing the claim in the event of an accident lies with the claimants. In this connection Section 110-AA Motor Vehicles Act is extracted as under:- "110-AA. Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmens Compensation Act, 1923 where the death or bodily injury to any person gives rise to as claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation "may without prejudice to the provisions Chapter VII-A claim such compensation" under either of the Acts but not under both." 5. A perusal of Section 110-AA of the Motor Vehicles Act, 1939 goes to show that option has been given to the claimants to choose either of two forums. The reply filed by the respondent No. 5 New India Assurance Company Ltd. also is relevant in this regard. A perusal of Section 110-AA of the Motor Vehicles Act, 1939 goes to show that option has been given to the claimants to choose either of two forums. The reply filed by the respondent No. 5 New India Assurance Company Ltd. also is relevant in this regard. In para 4 of the preliminary objections it has been stated by the New India Assurance Company Ltd. as under:- "Yah ki kinhi bhi suksham karnon se manniya nayayalya is aashye par pahuche kee aprarthi sankhya-5 kee muaavja dene kee jimedari hai to aise sthiti mai bhi muaavja Workmen Compensation Act va beema policy kee shartau kee anusar hee daiy hoga tatha prarthi uttardata ka dayitv Workmen Compensation Act ke tahat seemit hoga." 6. In this view of the matter, the limit of liability of the Insurance Company respondent No. 5 would be limited to one under the Workmens Compensation Act, 1923 though the choice of forum lies with claimants. 7. Under the provisions of Workmens Compensation Act the limit of liability of the respondent No. 5 New India Assurance Company Ltd. is required to be determined under the provisions of Section 4 read with Schedule IV of the said Act. The learned Tribunal assessed the income of the deceased at the time of accident in its award as Rs. 500/-per month. As per the provisions of Workmens Compensation Act, 1923 40% of the said monthly income taking into account the age of the deceased which has been assessed as 27 years at the time of accident, 40% of the salary (Rs. 500/-) would amount to Rs. 200/-which is required to be multiplied by 213.57 which is equals to Rs. 42,714/-. As per the aforesaid calculation the liability under the Workmens Compensation Act of the respondent No. 5 New India Assurance Company Act would be Rs. 42,714/-(Rs. Forty two thousand seven hundred fourteen only). 8. The submission of the learned Counsel for the respondent No. 5 is that no liability could be fasten unless and until the driver of the vehicle was driving the vehicles in question rashly and negligently cannot be accepted. As far as the liability of respondent No. 5 is concerned, the same is to be determined in respect of the policy of its insurer which has been taken cover the risk in respect of the driver also by paying the additional premium. As far as the liability of respondent No. 5 is concerned, the same is to be determined in respect of the policy of its insurer which has been taken cover the risk in respect of the driver also by paying the additional premium. It is not a case of third party accident so far as respondent No. 5 is concerned but under the Workmens Compensation Act, 1923. Moreover, under the provisions of Section 3 of Workmens Compensation Act, 1923 it is only in cases where personal injury is caused by accident which has arisen out of and in the course of employment, the employer shall be liable to pay the compensation in accordance with the provisions of the Act which liability the insurer has taken to insure. Thus, this submission on the part of the respondent No. 5 New India Assurance Company Ltd., is liable to be rejected. 9. So far as liability in respect of respondent No. 3 National Insurance Company Ltd. is concerned, in accordance with Section 95(2)(a) of the Motor Vehicles Act the liability being limited to the amount of Rs. 50,000/-, the award passed by the learned Tribunal qua the respondent No. 3 remains intact and has not been challenged. 10. So far as respondent No. 5 New India Assurance Company Ltd. is concerned, the appellant would be entitled to recover an amount of Rs. 42,714/-(Rs. Forty two thousand seven hundred fourteen only) out of the total amount under the award from respondent No. 5 which is the insurer of the vehicle belonging to the respondents No. 4 and 4(a) and which was being driven by the deceased Jagdish Prasad Sharma in the course of his employment. 11. In accordance with the provisions contained in Section 4-A, Sub-section (3) Clause (a), the said amount of Rs. 42,714/-(Rs. Forty two thousand seven hundred fourteen only) shall be paid with interest at the rate of 6% per annum which was the rate of interest prevailing prior to 15.09.1995 when the Act was amended w.e.f. the date of default i.e. one month after the date of accident. 42,714/-(Rs. Forty two thousand seven hundred fourteen only) shall be paid with interest at the rate of 6% per annum which was the rate of interest prevailing prior to 15.09.1995 when the Act was amended w.e.f. the date of default i.e. one month after the date of accident. In this case the date of accident being 21.01.1980, the interest would be liable to be charged w.e.f. 21.02.1980 as per Section 4-A(3) i.e. within one month when the amount fell due i.e. the date of the accident which is 21.01.1980 (See : 1976 ACJ 141, Pratap Narain Singh Deo vs. Sriniwas Sahat ). This appeal is accordingly disposed of . 12. There shall be no order as to costs.