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Andhra High Court · body

2013 DIGILAW 664 (AP)

Machineni Rama Devi v. M. Sathyanarayana

2013-08-19

P.NAVEEN RAO

body2013
JUDGMENT : C.M.A. Nos.993, 1011 and 2542 of 2004 are filed by the United India Insurance Company Limited and C.M.A. Nos.3510, 3513 and 3768 of 2004 are filed by the petitioners seeking enhancement of compensation. All these appeals arise out of the common award dated 31.03.2013, passed in O.P. Nos.592, 593 and 594 of 2002, by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Warangal. 2. Since the issues that arise for consideration in all these Civil Miscellaneous Appeals are common, they are taken up for disposal by way of this common judgment. 3. The Insurance Company challenges the award passed by the Claims Tribunal on the ground that the compensation awarded by the Claims Tribunal is contrary to the terms of the Insurance Policy on the crime vehicle and the Insurance Company has limited liability and the balance amount has to be borne by the owner of the vehicle. Whereas, the petitioners filed the appeals claiming enhancement of compensation not satisfied with the compensation awarded by the Claims Tribunal. 4. For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the Motor Accidents Claims Tribunal. 5. On 31.03.2002 three labourers, while travelling on the tractor and trailer bearing registration No.AP15 K 4192 and 4193, respectively, to go to Warangal Grain Market via Parkal, at about 06.00 p.m. the tractor met with an accident due to the rash and negligent driving of the tractor. As a result of which, the tractor turned turtle; the deceased fell down from the trailer and the load of chilli bags carrying in the trailer fell on them, as a result of which they received grievous injuries and died on the spot. Crime No.34 of 2002 was registered against the driver of the tractor and trailer under Section 304-A I.P.C. Since no compensation was paid to them, by the owner of the vehicle, dependents of the deceased, claiming compensation, instituted O.P. Nos.592, 593 and 594 of 2002 respectively. In all the above O.P.s owner of the crime vehicle and United India Insurance Company Limited, being the insurer, were arrayed as respondent Nos.1 and 2. 6. In all the above O.P.s owner of the crime vehicle and United India Insurance Company Limited, being the insurer, were arrayed as respondent Nos.1 and 2. 6. Petitioners claimed that the deceased were engaged as farm labourers by the owner of the tractor and trailer and on the fateful day, while they were carrying on trailer with a load of chilly bags to Warangal Grain Market, the accident occurred resulting in their death. Owner of the vehicle admitted that the deceased were working as labourers but denied their allegation that there was rash and negligent driving on the part of its driver. The Insurance Company, second respondent denied the allegations and claims set up by the petitioners by taking usual defences which are taken by the Insurance Company in opposing the claim such as the driver of the crime vehicle did not possess a valid driving licence at the time of the accident and there is violation of policy conditions etc., 7. Learned Tribunal framed the following three issues for consideration : 1. Whether the accident took place on account of the rash and negligent driving of the tractor-trailer by its driver or due to the circumstances beyond his control resulting in the death of the deceased? 2. What was the age and income of the deceased by the date of their death? Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. To what relief? 8.In order to substantiate their case, PW.1 was examined and Exs.A-1 to A-5 were marked in O.P. No.592 of 2002, PW.2 was examined and Exs.A-6 and A-7 were marked in O.P. No.593 of 2002 and PW.3 was examined and Exs.A-8 and A-9 were marked in O.P. No.594 of 2002. PW.4 was examined as eyewitness to the incident. No oral or documentary evidence was adduced on behalf of the Respondent-Insurance Company. However, the insurance policy is not disputed. 9. Learned Tribunal recorded the finding on the first issue that the accident occurred due to the rash and negligent driving of the driver of the tractor and trailer. As with reference to second issue, the Tribunal considered the individual claims of the petitioners in O.P. Nos.592, 593 and 594 of 2002. However, the insurance policy is not disputed. 9. Learned Tribunal recorded the finding on the first issue that the accident occurred due to the rash and negligent driving of the driver of the tractor and trailer. As with reference to second issue, the Tribunal considered the individual claims of the petitioners in O.P. Nos.592, 593 and 594 of 2002. In O.P. No.592 of 2002, for the purpose of arriving at the quantum of compensation, learned Tribunal considered the age of the deceased as 35 years and taking his monthly income as Rs.2,990/-, applied 1/3rd deduction towards personal expenses and by applying the appropriate multiplier ‘16’ determined the compensation payable as Rs.3,82,000/-. In addition, the Tribunal awarded Rs.15,000/- towards consortium and Rs.2,000/- towards funeral expenses. Thus, the total amount of compensation quantified is Rs.3,99,000/-. In O.P. No.593 of 2002, age of the deceased was taken as 28 years; his monthly wages at Rs.2,990/- and after deducting 1/3rd towards personal expenses, remaining amount is treated as contribution to his family and by applying the appropriate multiplier ‘18’ determined the total compensation payable as Rs.4,30,000/-. To this Rs.15,000/- is added as consortium and Rs.2,000/- towards funeral expenses. Thus, the total amount of compensation quantified is Rs.4,47,000/-. Similarly, in O.P. No.594 of 2002, age of the deceased is taken as 40 years; monthly income as Rs.2,990/- and after deducting 1/3rd towards his personal expenses contribution to the family is treated as Rs.1,993/- and by applying the appropriate multiplier ‘15’ arrived at a compensation of Rs.3,58,000/-Additionally Rs.15,000/- is granted towards consortium and Rs.2,000/- towards funeral expenses. Thus, the total amount of compensation quantified is Rs.3,75, 000/-. Respondents 1 and 2 are jointly and severally held liable to pay the compensation. On the amounts of compensation awarded, Tribunal apportioned the amount to the petitioners stated supra. 10. The insurance Company challenges the award on two grounds : 1) Insurance Company contends that the learned Tribunal erred in deciding the monthly wages by applying the orders issued by the District Collector, Warangal which wages are applicable to Zilla Parishad Service; and 2) The liability of the Insurance Company is under the Workmen’s Compensation Act, 1923 and the liability is limited. As per Section 4 of the Workmen’s Compensation Act, the computation of the compensation to which the Insurance Company is liable is based on the principle of monthly wages divided by 50% and multiplying factor based on the age. Thus, the Insurance Company claims that in O.P. No.592 of 2002, the Insurance Company is liable to indemnify the owner only to the extent of Rs.1,97,356/-; In O.P. No.593 of 2002, the Insurance Company is liable to indemnify the owner to the extent of Rs.2,12,108/- and in O.P. No.594 of 2002, the Insurance Company is entitled to indemnify the owner to the extent of Rs.1,84,440/- and the balance amount has to be borne by the owner of the vehicle. Owner is also impleaded as respondent No.1. Even though notice is served on him, no appearance is filed. 11. Opposing the contentions of the Respondent-Insurance Company, counsel for the petitioner contends that since the claims are instituted under the Motor Vehicles Act, 1988, there is no limitation of liability and entire compensation has to be borne by the Insurance Company. Learned counsel further contends that this plea is raised for the first time during the course of arguments. No such plea was raised before the Claims Tribunal and in the grounds of appeal and it is thus contended that it is not permissible for the Respondent-Insurance Company to raise such a plea. He further contends that the compensation awarded by the claims Tribunal is wholly inadequate on the various parameters to determine compensation. However, claim for enhancement is not seriously pressed. Learned counsel for the Insurance Company does not dispute the contention of the counsel for the petitioners that on the question of limitation of liability no plea was taken before the Claims Tribunal and in the grounds of appeal. 12. The questions that arise for consideration in these appeals are : 1) Whether the Insurance Company’s claim to restrict the liability under the Workmen’s Compensation Act is valid? 2) Whether compensation awarded by Claims Tribunal is just compensation? 13. These O.Ps are instituted under Section 166 of the Motor Vehicles Act claiming compensation on account of the death caused due to rash and negligent driving of the tractor and trailer. Incidentally, the deceased were also employees of the owner of the vehicle. 2) Whether compensation awarded by Claims Tribunal is just compensation? 13. These O.Ps are instituted under Section 166 of the Motor Vehicles Act claiming compensation on account of the death caused due to rash and negligent driving of the tractor and trailer. Incidentally, the deceased were also employees of the owner of the vehicle. Section 167 of the Motor Vehicles Act enables an employee who is also governed by the Workmen’s (Employees) Compensation Act to claim compensation under either of the enactments. However, proviso prohibits making claims under both the enactments. In other words, if the workman, who is governed by Workmen’s Compensation Act, suffers bodily injury or death, he or his dependents can institute claim for compensation either under the Workmen’s (Employees) Compensation Act, 1923 or under the Motor Vehicles Act, whichever is beneficial to them. Thus, if the claim is instituted under Section 166 of the Motor Vehicles Act and if there is no limitation of liability under the Insurance Policy covering the crime vehicle, the claimants are entitled to claim just compensation and Insurance Company is liable to pay the entire compensation determined by the claims Tribunal. 14. Ex.A-5 is the Insurance Policy; a reading of the Insurance policy shows that the premium was also paid to the workmen. Therefore, the Insurance Company is liable to pay compensation to the workmen. Learned counsel for the Respondent-Insurance Company relied on Section 147 of the Motor Vehicles Act in support of his contention that the liability of the Insurance Company is limited. Proviso appended to Section 147 (1) is in the negative terms holding that “It is not mandatory on the part of the owner of a vehicle to cover liability in respect of the death arising out of and in the course of his employment other than the liability arising out of the Workmen’s (Employees) Compensation Act except driver of the vehicle or if it is a public service vehicle, the conductor or examiner of tickets or if it is a goods carriage, being carried in the vehicle, or to cover any contractual liability”. In other words, though there is no obligation on the Insured to cover the liability against his employees but if the insurer decides to cover his employees also, he has to pay additional premium. If an additional premium is paid, the policy of Insurance shall cover such employees also. In other words, though there is no obligation on the Insured to cover the liability against his employees but if the insurer decides to cover his employees also, he has to pay additional premium. If an additional premium is paid, the policy of Insurance shall cover such employees also. In the instant case as is evident from a reading of Ex.A-5, copy of insurance policy, premium is paid by the Insured covering his employees also. Therefore, the workmen who were subjected to accident were covered by the policy concerning the crime vehicle. Once additional premium is paid, the Insurance liability extends to the employees also and since the liability is not restricted, in view of payment of additional premium, the Insurance Company is liable to honour the entire compensation awarded by the claims Tribunal and cannot seek to restrict the compensation by referring to Workmen’s (Employees) Compensation Act. 15. Learned counsel for the Respondent-Insurance Company placed reliance on the decision of this Court reported in United India Insurance Company Limited Vs. Vaggu Balram and others ( 2005 ACJ 1384 ). This judgment is with reference to the wages paid to workmen by the employer. This Court held that in the absence of documentary evidence relating to the wages of the deceased, oral evidence couldn’t be relied upon to decide the wages paid to the workmen. Therefore, wages determinable under the Minimum Wages Act are to be taken into consideration as salary of the deceased. 16. Several decisions are cited by the learned counsel for the petitioners opposing the claim of the learned counsel for the Respondent-Insurance Company. In New India Assurance Company Limited Vs. C.M. Jaya and others (2002 ACJ 271), the Hon’ble Supreme Court held that the liability of the Insurance Company if it is an act policy is limited but it is open to the insured to make additional premium and get higher risk covered in respect of third party. Section 95 referred to therein is of Motor Vehicles Act, 1939. Section 147 of the Motor Vehicles Act, 1988 is paramatirea same. In Oriental Insurance Company Limited Vs. Dyamavva and others ( AIR 2013 SC 1853 ), having received the compensation under Workmen’s Compensation Act claims were instituted under Section 166 of the Motor Vehicles Act. Section 95 referred to therein is of Motor Vehicles Act, 1939. Section 147 of the Motor Vehicles Act, 1988 is paramatirea same. In Oriental Insurance Company Limited Vs. Dyamavva and others ( AIR 2013 SC 1853 ), having received the compensation under Workmen’s Compensation Act claims were instituted under Section 166 of the Motor Vehicles Act. The Hon’ble Supreme Court held that the Motor Vehicles Act enables election of forum claiming compensation and held that it was not a case of institution of multiple proceedings under two different Enactments; Hon’ble Supreme Court further held that the claimants have instituted claim only under the M.V. Act and such claim is maintainable. Mere depositing of compensation in terms of the provisions of Workmen’s Compensation Act by the employer suo-motu at the instance of the commissioner under the Workmen’s Compensation Act but not in pursuance to any claim made by the individuals under the Workmen’s Compensation Act does not bar the claim under the Motor Vehicles Act and upheld the adjudication granted by the Claims Tribunal. The other decisions relied upon by the counsel for the petitioners need not be elaborated as learned counsel for the Respondent-Insurance Company confined his contentions on the issue stated above. 17. Having considered the rival contentions and the material on record, I am of the considered opinion that the liability of the Insurance Company is not limited; the Insurance Company has to indemnify the entire amount of compensation awarded by the Claims Tribunal. 18. I am in agreement with the contention of the counsel for the petitioners that a plea which was not raised before the Claims Tribunal and a plea which is not raised in the Grounds of appeal cannot be permitted to be raised by way of arguments. The counsel for the Respondent-Insurance Company contended that the liability of the Insurance Company is limited liability and therefore Insurance Company could not indemnify the owner of the vehicle to the extent of the entire compensation awarded by the Claims Tribunal. This contention was not raised before the Tribunal and in the grounds of appeal. As already discussed, even on merits, the contention has no force. 19. The compensation awarded by the Claims Tribunal is just and the learned counsel for petitioners submitted that they are satisfied if award of Claims Tribunal is affirmed. This contention was not raised before the Tribunal and in the grounds of appeal. As already discussed, even on merits, the contention has no force. 19. The compensation awarded by the Claims Tribunal is just and the learned counsel for petitioners submitted that they are satisfied if award of Claims Tribunal is affirmed. The Claims Tribunal has taken into consideration the minimum wages fixed by the District Collector, Warangal District to arrive at just compensation. On one hand the petitioners claim that they were paid higher wages but such claim was not supported by any material. Since there was no material on record to justify their claim, the learned Tribunal relied upon the orders issued by the District Collector determining the minimum wages to arrive at just compensation. There is no merit in the contention of the learned counsel for the Respondent-Insurance Company that the Claims Tribunal ought not to have considered the minimum wages fixed by the District Collector, applicable to local bodies. I do not see any error in the decision of the Claims Tribunal in relying upon the orders issued by the District Collector for determination of minimum wages. In the absence of any other material produced by either of the parties, the Claims Tribunal’s reliance on District Collector’s orders to arrive at possible wages fixed to daily wage employees cannot be faulted. The contention of the counsel for the respondent is also not valid in view of the principle of law laid down by the Hon’ble Supreme Court in LakshmiDevi and others Mohd. Tabbar and another ( 2008 ACJ 1488 ). In the said Judgment, their Lordships were pleased to hold that workers working in an unorganised sector where there can be no evidence of the wages paid by them, it is reasonable to take wages as Rs.3,000/- p.m. In the instant case, the Claims Tribunal has taken the wages as Rs.2,990/-. I therefore see no error in the decision of the Claims Tribunal and the contention of the counsel for the petitioners and Respondent-Insurance for enhancing/reducing compensation has no merit. In the result, the Civil Miscellaneous Appeals are dismissed. Consequently, the Miscellaneous Petitions, if any, pending in these Appeals, shall stand closed. No order as to costs.