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Allahabad High Court · body

2009 DIGILAW 3372 (ALL)

Rubi Mishra v. Vimla Sethi

2009-10-28

RAJIV SHARMA, V.K.SHUKLA

body2009
JUDGMENT V. K. Shukla and Rajiv Sharma, JJ.—Present first appeal from order has been filed under Section 173 of Motor Vehicles Act against the judgment and award dated 17.11.2007 passed by the Motor Accident Claim Tribunal/District Judge Court No. 2, Lucknow in claim petition No. 56 of 2004 Km. Rubi Mishra and others v. Smt. Vimla Sethi and others. 2. Brief background of the case is that on 30.9.2001 Sheo Kishore Mishra, who was driver of the Truck No. U.P.32/A-7630 was going to Raibareilly from Lucknow at 9.00 p.m. near Gaura Petrol Pump from the front side another vehicle being Eicher Canter No. U.P. 70T/9392 which was rashly and negligently being driven, collided with the aforementioned truck in question and on the spot Sheo Kishore Mishra died. In respect of said incident in question, claim petition was filed, impleading Smt. Vimla Sethi owner of the Truck No. U.P.32/A-7630 and Satyender Singh Puri owner of Eicher Canter No. U.P. 70T/9392 and respective insurance companies wherein both the vehicle in question have been insured namely, New India Insurance Company Ltd, 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow and the Oriental Insurance Company Ltd. Division Office-2,21 M.I.G. Flat Stanley Road, Allahabad. Notices were issued in the said claim petition. Smt. Vimla Sethi inspite of service of notice did not turn up to contest the case, and on 16.12.2006 order was passed to proceed against her. Written statement was filed on behalf of the owner of the Eicher Canter No. U.P. 70T/9392 and therein it was stated that accident in question took place on 30.9.2001 at 9.00 p.m. at Lucknow- Raibarelly road near M/s. S.B. Petrol Pump, which falls within the domain of Police Station Mohanlalganj and said site of the incident is over crowded locality and accident in question has occurred on account of negligent driving of driver of the Truck No. U.P.32/A-7630. It was also mentioned therein that cleaner of Eicher Canter No. U.P. 70T/9392 namely Pinto son of Bihari Lal Verma had also got first information report lodged at police station Mohanlalganj. It was also informed that in the said incident driver of Eicher Canter No. U.P. 70T/9392 namely, Umesh Prasad Shukla has also died and Umesh Prasad Shukla as he was in his employment, on his behalf claim petition had been filed under the Workmen's Compensation Act,1923, wherein claim had been allowed and a sum of Rs. It was also informed that in the said incident driver of Eicher Canter No. U.P. 70T/9392 namely, Umesh Prasad Shukla has also died and Umesh Prasad Shukla as he was in his employment, on his behalf claim petition had been filed under the Workmen's Compensation Act,1923, wherein claim had been allowed and a sum of Rs. 2.07,980 has been awarded. Plea has also been sought to be taken that proceeding ought to have been undertaken under the Workmen's Compensation Act, 1923. It has also been sought to be contended that mandate has to be fastened, same is to be fastened on Oriental Insurance Company Ltd. Division Office-2,21 M.I.G. Flat Stanley Road, Allahabad. Written statement was also filed on behalf of the New India Insurance Company Ltd, 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow and therein plea was taken that on account of negligence and rash driving of Eicher Canter No. U.P. 70T/9392 accident had occurred and as such New India Insurance Company Ltd, 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow was not at all responsible. Written statement was filed on behalf of the Oriental Insurance Company Ltd. Division Office-2,21 M.I.G. Flat Stanley Road, Allahabad and therein entire burden of accident was sought to be placed on the shoulder of truck driver and it was contended that driver of Eicher Canter was driving carefully. Further it was stated that claim petition was unsustainable and further right under Section 170 of Motor Vehicles Act has been sought to be reserved. 3. On the basis of pleadings, which have been exchanged inter-se parties, in all 7 issues were framed. From the side of claimant P.W. 1 Rubi Mishra was got examined along with P.W. 2 Surendra Kumar and apart from the same documentary evidence was also filed. From the side of Oriental Insurance Company Ltd. Division Office-2,21 M.I.G. Flat Stanley Road, Allahabad documentary evidence was filed . Thereafter, on the basis of the evidence adduced, Motor Accident Claim Tribunal found that there was contributory negligence on the part of the both the driver of offending vehicle and further proceed to mention that owner of both the offending vehicle and respective insurance company can be held responsible for payment of half of the share. Thereafter, on the basis of the evidence adduced, Motor Accident Claim Tribunal found that there was contributory negligence on the part of the both the driver of offending vehicle and further proceed to mention that owner of both the offending vehicle and respective insurance company can be held responsible for payment of half of the share. Thereafter, Motor Accident Claim Tribunal has proceeded to mention that as the claim petition has not been filed under Section 163A of Motor Vehicles Act, as such claimants are entitled to get relief as against the owner of the vehicle as well as insurance company under the provision of Workmen's Compensation Act, 1923, in this background from sum of Rs. 4,19,460—50% of the amount has been awarded along with interest. At this juncture present first appeal from order has been filed. 4. In the present case on behalf of New India Insurance Company Ltd, 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow, appearance has been put in through Sri Dinesh Kumar, advocate and rest of the respondents inspite of service of notice had not entered appearance. 5. Sri. Jai Singh Chauhan, advocate, learned counsel for the appellants contended with vehemence that in the present case once amount of compensation has been determined to the tune of Rs. 4,19,460, then by proceeding to deduct 50% of the said amount by mentioning that claimant ought to have made their claim under Workmen's Compensation Act, 1923 is totally unsustainable direction being in the teeth of provision under Section 167 of Motor Vehicles Act, 1988, and ignoring the provision of Section 147 of Motor Vehicles Act, 1988 and as such judgment and award passed to the said extent is unsustainable on the face of it and to the said extent same is liable to be quashed. 6. Countering the said submission, Sri Dinesh Kumar, advocate on the other hand contended that in the present case rightful decision has been taken, as such no interference be made as such appeal is liable to be dismissed. 7. 6. Countering the said submission, Sri Dinesh Kumar, advocate on the other hand contended that in the present case rightful decision has been taken, as such no interference be made as such appeal is liable to be dismissed. 7. In the light of the submissions, which have been made, first question to be adverted to is as to whether in the fact of the present case, once claimants have chosen forum for filing claim petition under Section 166 of the Motor Vehicle Act, even then they could have been asked to file claim petition under the provision of Workmen's Compensation Act, 1923, qua owner of the vehicle in question. 8. At this juncture Section 167 of the Motor Vehicles Act is being extracted below : "167. Option regarding claims for compensation in certain cases.—Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provision of Chapter X claim such compensation under either of those Acts but not under both" 9. A bare perusal of provision quoted above would go to show that same starts with non obstante clause by mentioning that notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provision of Chapter X claim such compensation under either of those Acts but not under both. 10. Section 167 has been subject-matter of consideration before the Hon'ble Apex Court in the case of Gottumukkala Appala Narasimha Raju and others v. National Insurance Co. Ltd. and another, 2007 (2) TAC 385 : 2007 (1) ACCD 258 (SC), and therein scope and ambit of the said section has been dealt with at great length vis-a-vis doctrine of election which clearly postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Ltd. and another, 2007 (2) TAC 385 : 2007 (1) ACCD 258 (SC), and therein scope and ambit of the said section has been dealt with at great length vis-a-vis doctrine of election which clearly postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of, or bodily injury to , any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provision of Chapter X claim such compensation under either of those Acts but not under both. Relevant paras 16, 17 and 18 are being extracted below. 16. The question in regard to the applicability of Section 167 of the 1988 Act fell for consideration in National Insurance Co. Ltd. v. Mastan and another, (2006) 2 SCC 641 : 2006 (1) ACCD 95 : 2006 (1) AWC 404 (SC), wherein it was held : "Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, 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. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. 17. The "doctrine of election" is a branch of "rule of estoppel", in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case." 18. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case." 18. Balasubramanyan, J. in his concurring judgment, held : "......The exclusiveness of the jurisdiction of the Motor Accidents Claims Tribunal is taken away by Section 167 of the Motor Vehicles Act in one instance, when the claim could also fall under the Workmen's Compensation Act, 1923. That section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the option in that behalf being with the victim or his representative. But Section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation under both the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, because of a motor vehicle accident has the choice of proceeding under either of the Acts before the forum concerned. By confining the claim to the authority or the Tribunal under either of the Acts, the Legislature has incorporated the concept of election of remedies, insofar as the claimant is concerned. In other words, he has to elect whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the section that a claim cannot be made under both the enactments, is a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The principle "where, either of the two alternative Tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such Tribunals in preference to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter" (see R. v. Evans, 118 ER 1178) is fully incorporated in the scheme of Section 167 of the Motor Vehicles Act, precluding the claimant who has invoked the Workmen's Compensation Act from having resort to the provisions of the Motor Vehicles Act, except to the limited extent permitted therein. The claimant having resorted to the Workmen's Compensation Act, is controlled by the provisions of that Act subject only to the exception recognised in Section 167 of the Motor Vehicles Act." 11. Thus the legal position is clear on the subject that Section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who become entitled to claim compensation under both the Motor Vehicles Act, 1988, and Workmen's Compensation Act, 1923 has the choice of proceeding under either of the Act before the forum concerned. The claimant has to choose as to whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the section that a claim cannot be made under both the enactments, is a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The claimant having resorted to the forum provided for under Motor Vehicles Act, 1988 as such by no stretch of imagination can be relegated to pursue his remedy and claim relief under the Workmen's Compensation Act, as sought to be done in the present case by means of the impugned order and said observation of the Motor Accident Claims Tribunal asking the claimants to approach the concern authority under Workmen's Compensation Act to get relief vis-a-vis owner of the vehicle cannot be subscribed as whatever relief can be accorded under the parameter of Motor Vehicles Act was to be examined. 12. This much has been accepted that Truck which was being driven by Late Sheo Kishore Mishra being Truck No. U.P.32/A-7630, was insured with New India Insurance Company Ltd, 6th flour, Jeevan Bhawan-II, Opposite Leela Cinema, District Lucknow. 13. The provision of Act, 1988 provides for a complete code in itself and said Section 147 envisages compulsory insurance of motor vehicles in terms thereof. There is no provision of compulsory insurance under the Workmen's Compensation Act, 1923. Section 143 of Chapter X of Motor Vehicles Act makes a special provision in relation to claim made under Section 3 of the 1923 Act. The 1988 Act provides for mandatory insurance for the matters laid down under Section 147 of the Act and, thus , an award can be passed against an insurer. Section 143 of Chapter X of Motor Vehicles Act makes a special provision in relation to claim made under Section 3 of the 1923 Act. The 1988 Act provides for mandatory insurance for the matters laid down under Section 147 of the Act and, thus , an award can be passed against an insurer. In this context reference could be made to relevant paras of Section 147 of the Motor Vehicles Act, 1988, which reads as follows : - “147. Requirements of policies and limits of liability.—(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorized insurer ; or (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place ; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : Provided that, a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of his death , or bodily injury to, any such employee. (a) engaged in driving the vehicle, or (b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. (a) engaged in driving the vehicle, or (b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. xxxx xxxx xxxx (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1) , shall cover any liability incurred in respect of any accident, up to the following limits, namely : (a) save as provided in clause (b), the amount of liability incurred ; (b) in respect of damage to any property of a third party, limit of rupees six thousand : Provided that, any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. xxxx xxxx xxxx (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons”. 14. Hon'ble Apex Court in the case of Ningamma and another v. United India Insurance Co. Ltd., 2009 (3) TAC 13 : 2009 (3) ACCD 1213 : 2009 (3) AWC 3045 (SC) has considered the matter under the provision of Section 147 of Motor Vehicles Act, 1988 and has taken view that policy of insurance could also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carrying vehicle or arising out of the use of vehicle in the public place, and further has taken the view that under the provision of Section 166 of Motor Vehicles Act, 1988 award has to be "just compensation". Relevant paras 21, 22, 23 are being extracted below : 21. Relevant paras 21, 22, 23 are being extracted below : 21. Section 147 of the M.V.A. provides that the policy of insurance could also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in the public place. 22. When we analyze the impugned judgment of the High Court in terms of aforesaid discussion, we find that the counsel for the insurance company himself contended before the High Court that the policy of insurance was an Act policy and the risk that is covered is only in respect of persons contemplated under Section 147 of the M.V.A. It is the finding of fact which we have also upheld in this judgment that the deceased was authorised by the owner of the vehicle to drive the vehicle. When we examined the facts of the present case in view of the aforesaid submission made, we are of the opinion that such an issue was required to be considered by the High Court in the light of the facts and evidence adduced in the case. On consideration of the judgment and order passed by the High Court we find the same to be sketchy on the aforesaid issue as to whether the claim could be considered under the provisions of Section 166 of the M.V.A. In this connection, reference can be made to a judgment of this Court in the case of Oriental Insurance Company Ltd. v. Rajni Devi and others (supra), wherein, it was held that where compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. 23. Recently, this Court in the case of Raj Rani and others v. Oriental Insurance Co. Ltd. and others, C.A. Nos. 3317-3318 of 2009 @ S.L.P. (C) Nos. 27792-27793 of 2008 pronounced on 6.5.2009 : 2009 (3) ACCD 1427 : 2009 (4) AWC 3342 (SC), wherein one of us (Hon'ble Justice S. B. Sinha) has taken the view that it is not necessary in a proceeding under the M.V.A. to go by any rules of pleadings or evidence. 3317-3318 of 2009 @ S.L.P. (C) Nos. 27792-27793 of 2008 pronounced on 6.5.2009 : 2009 (3) ACCD 1427 : 2009 (4) AWC 3342 (SC), wherein one of us (Hon'ble Justice S. B. Sinha) has taken the view that it is not necessary in a proceeding under the M.V.A. to go by any rules of pleadings or evidence. Section 166 of the M.V.A. speaks about "Just Compensation". The court's duty being to award "Just Compensation", it will try to arrive at the said finding irrespective of the fact as to whether any plea in that behalf was raised by the claimant or not. 15. On the parameter as set out, the impugned award has been analyzed and it has been found that Motor Accident Claim Tribunal was under wrong notion that for claiming relief against owner of the vehicle and insurance company, claimants ought to have approached the Claim Commissioner under Workmen's Compensation Act. As already observed above, such view cannot be subscribed, inasmuch whatever relief was to be accorded to the claimants same has to be considered within the parameter of the provision as contained under Motor Vehicles Act, inasmuch as, claimants had already elected their forum to approach Motor Accident Claim Tribunal wherein parameter are different vis-a-vis parameter provided to award compensation under Workmen's Compensation Act, 1923. The Motor Accident Claim Tribunal accepted in principle to award the amount to the claimant, recoverable both from the owner and insurance company, but proceeded to deduct the same by taking recourse of the judgment in the case of Transport Corporation Tanjore, Rep by its M.D. v. Natarajan and others, 2003 (2) TAC 241 (SC). In the said judgment vehicle in question belonged to corporation and same was not at all insured vehicle and apart from this even on fact, no claim whatever has been filed against the employer and claim petition was filed against the owner and the insurer of private truck. Statement was made that he had never desired any compensation from any employer and view was taken that High Court committed serious error in apportioning and fastening 50% liability of compensation on the appellant/corporation. Statement was made that he had never desired any compensation from any employer and view was taken that High Court committed serious error in apportioning and fastening 50% liability of compensation on the appellant/corporation. Here the facts are altogether different, inasmuch as vehicle which was being driven by the Sheo Kishore Mishra was insured vehicle and it was to be enquired as to whether policy which was in existence covered risk or not, qua the nature of accident, which has taken place. 16. In the present case such issue was required to be considered by the Motor Accident Claim Tribunal in the light of the fact and evidence adduced and available on record and thereafter endeavour ought to have been made to award "just compensation". In the present case, said facet has not at all been adverted to as to whether policy of insurance as contemplated under Section 147 of Motor Vehicles Act, 1988 covered the liability, which may be incurred by the insurer in respect of death or fatal injury of the driver of the vehicle, who was authorized representative of owner of the vehicle. 17. Consequently, in the facts of the present case, present first appeal from order is allowed. Award in question dated 17.11.2007 to the extent it relegates the appellants to file claim petition under Workmen's Compensation Act, 1923 and further directing deduction of 50% of the amount from awarded amount is quashed and set aside and Motor Accident Claim Tribunal is directed to reconsider the matter in the light of the evidence available on record and in the light of the insurance policy which was there vis-a-vis Truck No. U.P.32/A-7630. 18. With these observations, first appeal from order is allowed. No order as to cost.