Research › Search › Judgment

Himachal Pradesh High Court · body

2007 DIGILAW 95 (HP)

NEW INDIA ASSURANCE COMPANY v. RATTU DEVI

2007-04-16

KULDIP SINGH

body2007
JUDGMENT Kuldip Singh, J.—This appeal has been filed by New India Assurance Company (hereinafter referred to as respondent No.. 1) against the award dated 12th March, 2001 passed by the learned Motor Accident Claims Tribunal, Shimla in MACC No. 69-S/2 of 1998 allowing the claim petition. 2. The brief facts of the case are that Tulsi Ram died in an accident involving Truck No. HIS-3512 owned by Rajinder Chhajta and it was being driven by respondent No. 3 Parvinder Singh, Driver at the time of accident. The truck was insured with respondent No. 1. The claimants are the widows and minor children of Tulsi Ram. The parties in this judgment are referred in the same manner as referred in the impugned award. 3. The case of the claimants is that Tulsi Ram was aged 35 years and he was carpenter and horticulturist by occupation. His monthly income was Rs. 6,000. The claimants were dependant on Tulsi Ram who died in an accident of Truck No. HIS-3512 which took place on 21st November, 1996 at place Bora in Tehsil Chopal, District Shimla the accident occurred due to rash and negligent driving of truck by respondent No. 3. The claimants claimed Rs. 6 lacs by way of compensation on account of death of Tulsi Ram. 4. Respondent No. 2, owner of the truck, denied that the accident took place due to rash and negligent driving of truck. It has been alleged that deceased was employed as labourer for loading and unloading the goods from the truck and he was being paid Rs. 2,000 per month. It has been denied that deceased was a. horticulturist or carpenter by occupation and his income was Rs. 6,000 per month. It has been denied that deceased was 35 years old at the-time of accident. The owner has pleaded that because of efforts made by him respondent No. 1 Insurance Company has paid Rs. 1, 47,795 to the dependants of the deceased which amount has been worked out in accordance with the Workmens Compensation Act. This amount was deposited with the Commissioner under Workmens Compensation Act, Chopal and the claimants had withdrawn that amount and, therefore, the claim petition is not maintainable. 5. Respondent No. 1- Insurance Company has taken several preliminary objections. It has been alleged that compensation under the Workmens Compensation Act has already been paid, therefore, the petition is neither competent nor maintainable. 5. Respondent No. 1- Insurance Company has taken several preliminary objections. It has been alleged that compensation under the Workmens Compensation Act has already been paid, therefore, the petition is neither competent nor maintainable. The petition is bad for mis-joinder and non-joinder of necessary parties. The vehicle was being driven in contravention of the terms and conditions of the policy and the driver did not possess valid and effective driving licence. 6. The learned Tribunal has come to the conclusion that accident took place due to rash and negligent driving of the driver of the truck. It has been held that claimants are entitled to an amount of Rs. 2, 67,000 inclusive of the amount of Rs. 1, 47,795 already received by them under the provisions of Workmens Compensation Act with interest @ 9% per annum from the date of filing of the petition to the date of payment of the aforesaid amount against all the three respondents jointly and severally. The compensation amount has been ordered to be apportioned amongst the claimants equally. The shares of minor claimants were ordered to be kept in fixed deposit till the attainment of majority by them. 7. I have heard the learned Counsel for the parties and have also gone through the record. 8. It has been proved on record that the accident took place due to rash and negligent driving of respondent No. 3. PW-3 Raghu Raj has stated that he was present at the shop of one Hari Ram on 21st November, 1996 and saw the accident taking place. He stated that the vehicle was being driven very fast and due to this reason the driver could not negotiate the turn. This statement of the witness is corroborated by contents of F.I.R. Ext.P-3. No rebuttal has been led by the respondents. The driver of the truck has not filed any reply nor has he appeared in the witness box. Therefore, it has been established that the accident had taken place due to rash and negligent driving of the driver. 9. The Counsel for the appellant Insurance Company has submitted that since the claimants have withdrawn the amount which was.deposited with the Commissioner Workmens Compensation therefore, the claim petition filed by them before the Tribunal is neither competent nor maintainable. He has relied upon Section 167 of the Motor Vehicles Act, 1988 in support of his submissions. 9. The Counsel for the appellant Insurance Company has submitted that since the claimants have withdrawn the amount which was.deposited with the Commissioner Workmens Compensation therefore, the claim petition filed by them before the Tribunal is neither competent nor maintainable. He has relied upon Section 167 of the Motor Vehicles Act, 1988 in support of his submissions. Section 167 of the Act gives an option to the claimants to claim compensation under the Act or under the Workmens Compensation Act, 1923 but not under both. In the present case, admittedly, the claimants did not file any petition claiming compensation under the Workmens Compensation Act, 1923. They have simply withdrawn the amount which was deposited before the Commissioner, Workmens Compensation under the Workmens Compensation Act. Therefore, it cannot be said the claim petition filed by the claimants under the Act is barred under Section 167 of the Motor Vehicles Act simply because the claimants have withdrawn the amount deposited before the Workmens Compensation Commissioner. It cannot be said that they have exercised the option to claim compensation under the Workmens Compensation Act. Therefore, the claim petition filed by the claimants under the Act claiming compensation on account of death of Tulsi Ram is not barred by Section 167 of the Motor Vehicles Act. This view is supported by Harivadan Maneklal Mody and another v. Chandrasinh Chhatrasinh Parmar and others, (1988 ACJ 311) and Managing Director, Karnataka Power Corporation Ltd, v. Geetha and others (AIR 1989 Karnataka 104). The appellant has failed to make out any case for interference. 10. No other point was urged. 11. In view of the above discussion, the appeal is dismissed and the impugned award is upheld with no orders as to costs. Appeal dismissed.