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Rajasthan High Court · body

2008 DIGILAW 341 (RAJ)

Shanti v. M/s. Dwarka Dass Dosi

2008-02-04

MANAK MOHTA

body2008
Judgment Manak Mohta, J.—The instant appeal has been preferred by the claimant-appellants against the judgment and Award dt. 21.09.1994 passed by Judge, Motor Accident Claims Tribunal, Barmer in MACT Claim Case No. 48 of 1990, whereby, the learned Tribunal has disallowed the claim petition. 2. Briefly stated the facts of the case are that on 04.07.1990 at 11.30 PM deceased driver Mangla Ram was going from Barmer to Neembari with Jeep bearing No. RJ-04/155. When he reached near firing range area, dusty-storm was blowing at high speed, on account of which, the balance of the jeep became out of control, thus, the jeep turtled in the sand-dunes. Due to turning of the jeep upside down, Mangla Ram driver of the jeep came beneath the jeep and died on the spot. At the time of accident, the driver Mangla Ram was 27 years old and he was getting salary of Rs.800/- per month plus Rs.200/- p.m allowance for other expenses. Out of his monthly income, he used to spend Rs.200/- upon himself and rest of the amount used to provide for meeting out the family needs. It was alleged that total family was running on the income of the deceased. Due to untimely death in accident, they suffered monetary loss as well as loss of company of the deceased. The legal heirs of deceased Mangla Ram i.e. widow wife, daughters and parents filed a claim petition for compensation to the tune of Rs.3,40,000/- in the Court of M.A.C.T. Barmer. 3. After service of notice, non-claimant No.1 (owner of the said jeep) filed reply to the claim petition. In reply, the contents of paras 7 to 9 of the claim petition were admitted and rest of the averments made by the claimants in their claim petition, were denied for want of knowledge and prayed that the claimants are not entitled to get compensation from the answering-non-claimant No.1. 4. In reply filed on behalf of non-claimant No.2, in which, Insurance of the Jeep was admitted. It was further stated that the driver of the jeep was driving the jeep rashly and negligently in drunken condition, therefore, answering non-claimant No.2 was not responsible to make payment of compensation to the claimants. 5. 4. In reply filed on behalf of non-claimant No.2, in which, Insurance of the Jeep was admitted. It was further stated that the driver of the jeep was driving the jeep rashly and negligently in drunken condition, therefore, answering non-claimant No.2 was not responsible to make payment of compensation to the claimants. 5. The learned Tribunal framed the following issues along with additional issue on the basis of the pleadings of the parties and afforded opportunity to prove by evidence :- ß1- vk;k fnukad 04-07-1990 ds jk=h lk<s X;kjg cts ekStk ck<+esj esa pkanekjh jsat ds ikl lM+d ij vk;s vpkud /kksjksa ds dkj.k thi vkj-ts- 4@155 dk cSysal ugha cu ikus ds dkj.k thi myVh gks x;h ftlls mldk MªkbZoj uhps nc dj ej x;k\ 2- vk;k izkFkhZx.k eaxykjke dh e`R;q ds dkj.k eqvkotk dh jkfÓk 3]44]000@& #i;s foizkFkhZx.k ls mijksä nq?kZVuk ds dkj.k izkIr djus ds vf/kdkjh gS\ 3- vk;k ;kaf=d ;k izkd`frd vkink ds dkj.k gqbZ nq?kZVuk ds dkj.k chek dEiuh ftEesnkj ugha gS\ 4- vk;k eqvkotk Dyse dks bl U;k;ky; dks lquus dk vf/kdkj ugha gS\ 5- vuqrks"kAÞ 6- vk;k e`rd eaxykjke dh e`R;q Ókjkc ihdj o uÓks dh gkyr esa ykijokgh ls okgu pykus dh otg ls nq?kZVuk dkfjr gqbZ ,slh voLFkk esa foizkFkhZ la[;k 2 {kfriwfrZ ds fy;s mÙkjnk;h ugha gS\ 6. On behalf of the appellant AW. 1 Smt.Shanti, AW. 2 Khetaram, and A.W. 3 Veero were produced, their statements were recorded and certain documents Ex.1 to Ex.12 were exhibited. No evidence was produced by any of the non-claimants in defence. 7. After hearing both the parties, the learned Tribunal held that the accident was not occurred due to rash and negligent driving of the jeep as the jeep itself was driven by the deceased and in this way, the learned Tribunal decided issue No.1 against the claimants. It was further held that at that time, the deceased was driver of the jeep and was employed by the non-claimant No.1 at the salary of Rs.800/- per month. The learned Tribunal also turned down the contentions of the Insurance Company with regard to the maintainability of the application and other contentions that accident occurred due to mechanical failure or at the time of driving the jeep, the driver was in drunken position. The learned Tribunal also turned down the contentions of the Insurance Company with regard to the maintainability of the application and other contentions that accident occurred due to mechanical failure or at the time of driving the jeep, the driver was in drunken position. The learned Tribunal further held that application for claim was maintainable but as issue No.1 was decided against the appellants, therefore, neither the compensation was determined nor any compensation was awarded and dismissed the claim petition vide judgment and Award dt. 21.09.1994. 8. Being feeling aggrieved by the judgment and Award dt. 21.09.1994, the claimants; widow wife and minor daughters of the deceased through their natural guardian mother, preferred the present appeal before this Court. Notices were given to the respondents. 9. I have heard the learned counsel for the parties and perused the record of the case. 10. During the course of arguments, the learned counsel for the claimant-appellants stated that the learned Tribunal has not considered and appreciated the facts in right perspective and gave erroneous judgment. It was also submitted that the learned Tribunal has not applied the legal provisions in right direction. It was contended that it was admitted by the owner of the vehicle that Mangla Ram was the driver employed to drive the jeep and for that respect, Rs.800/- p.m. was given to him as salary. It was also admitted that non-claimant No.1 was the owner of the jeep. At that time, the jeep was insured with non-claimant No.2. It was also stated that the claimants have proved that the accident took place due to heavy dust on the road. In these factual position, it was incumbent upon the learned Tribunal to decide the claim petition under the provisions of the Workmen’s Compensation Act, 1923 and a suitable compensation should have been awarded to the claimants. The learned Tribunal has decided issue No.4 with regard to maintainability of the application in favour of the claimants and has turned down other objections raised by the Insurance Company. The submission was also made before the learned Tribunal to award compensation under the Workmen’s Compensation Act. It was also urged that under Sec.167 of the M.V.Act, the claimants were having option to claim damages under the Workmen’s Compensation Act or under the M.V.Act. Even in that position, the learned Tribunal was under an obligation to award the compensation. The submission was also made before the learned Tribunal to award compensation under the Workmen’s Compensation Act. It was also urged that under Sec.167 of the M.V.Act, the claimants were having option to claim damages under the Workmen’s Compensation Act or under the M.V.Act. Even in that position, the learned Tribunal was under an obligation to award the compensation. In that case, as alleged before the learned Tribunal, that the negligence on the part of the driver was not to be proved and claim under the Workmen’s Compensation Act was awardable but the learned Tribunal has not considered these aspects and in hasty manner disallowed the claim petition, therefore, the judgment and Award passed by the learned Tribunal is not sustainable and that may be quashed and set aside. Learned counsel for the claimant-appellants placed reliance on the decision of the Supreme Court in the case of National Insurance Co. Ltd. vs. Prembai Patel and Ors., AIR 2005 SC 2337 and the decision of this Court in the case of National Insurance Co. Ltd. vs. Smt. Savitri, 2001(2) WLC (Raj) 211 in support of their contentions and again prays to allow the appeal. 11. On the contrary, the learned counsel for the non-claimant-respondents refuted the contentions raised by the claimant-appellants and supported the judgment. It was submitted that the claimant-appellants have not specifically pleaded their case under the Workmen’s Compensation Act, therefore, the learned Tribunal has rightly dismissed their claim. It was also contended that the claimant-appellants have failed to prove the allegations made in the application. Thus, the order passed by the learned Tribunal is not suffered from any infirmity that should be maintained and the appeal may be disallowed. 12. I have considered the rival contentions and perused the findings arrived at by the learned Tribunal and the conclusion drawn thereon. The main point arises for consideration is whether the learned Tribunal has wrongly dismissed the claim petition. Before adverting the contention, I have considered the material available on record. It is pertinent to note that only the claimants have led evidence before the learned Tribunal. No evidence has been led by any of the non-claimant-respondents. AW 1-Smt.Shanti is widow of the deceased. She has stated in her statement that her husband used to drive the jeep of Bhanwarlal Dosi. It is pertinent to note that only the claimants have led evidence before the learned Tribunal. No evidence has been led by any of the non-claimant-respondents. AW 1-Smt.Shanti is widow of the deceased. She has stated in her statement that her husband used to drive the jeep of Bhanwarlal Dosi. She has further stated that her husband was drawing the salary of Rs.800/- p.m. and at the time of accident, he was of 27 years old. She has stated that her husband expired in jeep accident. She has also produced documents Ex.1 to Ex.10 prepared and collected during police investigation. Ex.11 and 12 have been produced to prove family members of the deceased. AW 2 Kheta Ram who was an eye-witness of the accident, has stated that there was a dust on the road and due to that, the jeep driven by Mangla Ram turtled and Mangla Ram came beneath the jeep and he expired on the spot. AW 3 Veero, mother of the deceased, has also stated that her son was driver on the jeep of Dwarka Dass and he expired in the jeep accident. He was married with the claimant-appellant Smt.Shanti and having two minor daughters namely Ku.Vishu and Ku.Looni. From perusal of the record, it is revealed that the report of this accident was lodged at the police station, Sadar, Barmer. During investigation, the police prepared a site-plan Ex.6 which corroborates the factum of sand collected on the road. It is also revealed from the Cover-note Ex.2 that on the date of accident, the vehicle was insured with the respondent-Insurance Company and in addition to third party risk , the extra premium for the risk of driver Rs.8/- was collected by the owner of the jeep. Ex.10 has been produced which indicates that the deceased Mangla Ram was having licence to drive the motor vehicle. On the basis of Rashan Card Ex.11 and 12, the claimant-appellants are proved to be legal heirs of Mangla Ram . Ex.10 has been produced which indicates that the deceased Mangla Ram was having licence to drive the motor vehicle. On the basis of Rashan Card Ex.11 and 12, the claimant-appellants are proved to be legal heirs of Mangla Ram . Learned Tribunal while deciding the issues, only on the basis of the evidence, that occurrence of accident has not been proved due to rash and negligent driving, therefore, disallowed the claim petition but before the learned Tribunal, facts were specifically placed by the claimant-appellants that the deceased driver was himself driving the said jeep and due to dust on the road, the incident took place and in that accident, he lost his life. These facts were also come on the record that at that time, he was discharging the duties as employee of non-claimant-respondent No.1. For that, he was getting the salary of Rs.800/- p.m. plus allowance Rs.200/- p.m. and this fact was also on record that the concerned jeep was insured with non-claimant-respondent No.2 and extra-premium for driver in case of mis-happening was received by the Insurance Company, therefore, the Insurance Company was fully responsible to pay compensation in case risk arises out of the use of the motor vehicle with regard to driver. The learned Tribunal has further turned down the objection of the Insurance Company but has not considered the case from the angle that in case of death of the driver, if it is found proved that the accident took place while he was discharging the duty. His claim under the Workmen’s Compensation Act was maintainable and in that case, it was not required to prove rash and negligent driving of the jeep on the part of the driver. It was also revealed from perusal of the impugned order that such type of submissions were raised before the learned Tribunal but they have not properly appreciated and decided as per law. The conclusion drawn on the finding of the issues by the learned Tribunal is not sustainable. The Apex Court, in case of National Insurance Company Ltd. vs. Prembai and Ors. (supra), the same type of controversy was there. In that case also, the deceased driver was driving the truck on account of heavy load, it got over-turned, in which, the deceased Surendra Singh was crushed and died instantaneously. The claim petition was filed under Sec.166 of the MV Act. (supra), the same type of controversy was there. In that case also, the deceased driver was driving the truck on account of heavy load, it got over-turned, in which, the deceased Surendra Singh was crushed and died instantaneously. The claim petition was filed under Sec.166 of the MV Act. In that case, the policy taken by the owner of the vehicle as for act policy, no extra-premium was paid by the owner qua the liability of the employees of the owner. Even in that case, the limited liability of the Insurance Company was held to that extent arising under the Workmen’s Compensation Act. 13. In the case of National Insurance Co.Ltd. vs. Smt. Savitri (supra), even assuming negligence of the deceased (driver of the truck), the liability of the owner and insurer of truck was not held minimized and claim petition filed under MV Act was allowed though it was not claimed under the Workmen’s Compensation Act. Thus, on the basis of the aforesaid discussion, and judgment and award given by the learned Tribunal is liable to be quashed. The conclusion finds support from the above cited authorities. In the back ground of the aforesaid discussion, the case is required to be remanded back for assessing the compensation under the Workmen’s Compensation Act. 14. In the result, the appeal is partly allowed. The judgment and Award dt. 21.04.1994 passed by the learned Tribunal is quashed and set aside. The case is remanded back for determination of the compensation under the Workmen’s compensation Act on the basis of material available on record and decide the same in accordance with law. It is further held that the learned Tribunal will not be influenced by any observations made in the order and decide the case as indicated above. No order as to costs.