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2014 DIGILAW 1356 (AP)

Boya Manemma v. S. Mohan Reddy

2014-11-07

A.SHANKAR NARAYANA

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JUDGMENT : A. Shankar Narayana, J. 1. Appellants herein are the petitioners. Aggrieved by the dismissal of their claim made for compensation of Rs. 2,50,000/- under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') for the death of husband of the 1st appellant, pursuant to the order dated 06.05.2003 in M.V.O.P. No. 741 of 2001 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool (for short, 'the Tribunal'), they preferred the instant appeal. 2. The appellants herein are the petitioners before the Tribunal, while the respondent Nos. 1 and 2, who are the owner and insurer of the tractor bearing registration No. AP 21T 1121 respectively, were respondents in the original petition. 3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Tribunal in the original petition. 4. The fact-situation occurring in the instant case is that Boya Narasimhulu, who was aged 24 years, getting a salary of Rs. 2,500/- per month as a tractor driver employed under the 1st respondent, on 11.10.2000 at about 1-00 p.m., was driving the tractor in the field near Alampur, and due to strucking of a thunder bolt, it occasioned his instantaneous death. The petitioners claiming that the death of Boya Narasimhulu occurred due to the use of the motor vehicle and driving it in the course of employment as driver of the said tractor bearing registration No. AP 21T 1121, the 1st respondent being the owner and 2nd respondent being the insurer are jointly and severally liable to pay compensation and hence the claim. 5. The 1st respondent, despite service of notice, since did not appear, he was set ex parte before the Tribunal. 6. The 2nd respondent contested the claim by filing counter. While denying the material allegations mentioned in the petition that the deceased was not possessing valid and effective driving licence at the time of the accident that the tractor was used against the terms and conditions of the policy and without valid permit. 6. The 2nd respondent contested the claim by filing counter. While denying the material allegations mentioned in the petition that the deceased was not possessing valid and effective driving licence at the time of the accident that the tractor was used against the terms and conditions of the policy and without valid permit. It is also contended that the very allegations of the petition would reveal that the death of the deceased has occurred due to lightening and, therefore, it was only due to Act of God and hence the risk of the deceased was not covered under the policy and, therefore, the Insurance Company is not liable to pay compensation to the petitioners. Contending that there is no cause of action under the Act and the remedy available to the petitioners was to approach the Commissioner under the Workmen's Compensation Act, 1923 for claiming compensation and that the claim is not maintainable under Section 163-A of the Act, sought to dismiss the claim seeking permission to contest the case under Section 170(b) of the Act reserving right to file additional counter, if necessary at a later point of time. 7. Basing on the aforenarrated pleadings, the Tribunal framed three issues, thus: "1) Whether the accident occurred due to rash or negligent driving of the driver of Tractor bearing No. AP-21-T-1121 while in used by the deceased? 2) Whether the petitioners are entitled for compensation and if so to what amount from which of the respondents? 3) To what relief?" 8. In order to substantiate their claim, the 1st petitioner examined herself as P.W. 1, besides examining one Shaik Shali Basha as P.W. 2 and marked attested copies of F.I.R., inquest report and postmortem certificate as Exs. A. 1 to A. 3. On behalf of the 2nd respondent, one Y.J.C. Bose, official from the Local Branch of the Insurance Company was examined as R.W. 1 and true copy of insurance policy was marked as Ex. B. 1. 9. A. 1 to A. 3. On behalf of the 2nd respondent, one Y.J.C. Bose, official from the Local Branch of the Insurance Company was examined as R.W. 1 and true copy of insurance policy was marked as Ex. B. 1. 9. The Tribunal, having discussed the evidence of P.W. 2, an eyewitness to the occurrence as he was sitting on the ploughing instrument while the deceased was driving the tractor and placing reliance on the decision of the Hon'ble Supreme Court in State of Rajasthan vs. Ram Prasad and another 2000 ACJ 647 , observing that the death of the deceased has occurred in the course of employment due to strucking of thunder bolt, tendered finding that the Tribunal has no jurisdiction to entertain the claim and thereby dismissed the claim. 10. Thus, the petitioners, who are the appellants, were driven to approach this Court by preferring the instant appeal challenging the aforementioned order contending that the finding recorded by the Tribunal that the Tribunal has no jurisdiction to entertain the claim and they will have to approach the Commissioner under the Workmen's Compensation Act, 1923, is quite contrary to the mandatory provisions of Section 167 of the Act since the appellants are left with the option of preferring the claim either under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. It is also contended that the Tribunal somehow overlooked the fact that the death of deceased occurred while driving the vehicle and in the course of employment and that, therefore, they are entitled to compensation under Section 163-A of the Act due to rash and negligent act holding that even if the claim petition is under Section 166 of the Act, the Court is bound to do justice by applying correct law and the provisions of the Act as the Act is a beneficial legislation, and hence sought to set aside the order and determine compensation and to award just and adequate compensation. 11. Heard Sri K. Rathanga Pani Reddy, learned counsel for the appellants and Smt. M. Bhaskara Lakshmi, learned counsel for the 2nd respondent. Due to non-compliance of the orders of this Court, dated 03.02.2011, the appeal against respondent No. 1 was dismissed for default. 11. Heard Sri K. Rathanga Pani Reddy, learned counsel for the appellants and Smt. M. Bhaskara Lakshmi, learned counsel for the 2nd respondent. Due to non-compliance of the orders of this Court, dated 03.02.2011, the appeal against respondent No. 1 was dismissed for default. However, dismissal of the appeal for default against the 1st respondent-owner is of no consequence to decide the quantum of compensation, in view of the decision of a Division Bench of this Court in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma and others 2001 (1) ALT 495 (D.B.), wherein it is held that: "If the Claims Tribunal records a finding that the accident had taken place due to the rash or negligent driving of the driver of the motor vehicle and if such finding is not challenged either by the Insurance Company or by the owner of the motor vehicle, the question that arises in appeal filed against the orders of the Tribunal by the claimants is only with regard to the determination of just, fair and reasonable quantum of compensation and therefore there cannot be any bar to decide the quantum of compensation against the Insurance Company even in the absence of owner of the vehicle to the extent of the statutory liability of the Insurance Company. But the quantum of compensation cannot be decided over and above the statutory liability of the Insurance Company in the absence of the owners, but the question of the statutory liability of the Insurance Company survives for consideration at the appellate stage." 12. It is the submission of the learned counsel for the appellants that in view of the provisions of Section 167 of the Act, option is made available to the appellants herein to approach either under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923, and in that view of the matter, the appellants are entitled to compensation under the provisions of the Motor Vehicles Act, 1988. In support of his submission, he placed reliance on a decision of the Hon'ble Supreme Court in Oriental Insurance Company Limited v. Dyamavva and others (2013) 9 SCC 406 . The fact-situation therein would reflect that the injured therein was riding pillion of the motorcycle, which was hit by a tipper and died instantly. In support of his submission, he placed reliance on a decision of the Hon'ble Supreme Court in Oriental Insurance Company Limited v. Dyamavva and others (2013) 9 SCC 406 . The fact-situation therein would reflect that the injured therein was riding pillion of the motorcycle, which was hit by a tipper and died instantly. In that scenario, the option left to the claimants was to invoke the provisions either under the Motor Vehicles Act, 1988 or Workmen's Compensation Act, 1923. Thus, on facts, the decision therein would not render any assistance to the appellants herein in choosing forum. On the other hand, the Tribunal placed reliance on the decision of the Hon'ble Supreme Court in State of Rajasthan v. Ram Prasad and another (2001) 9 SCC 395 , rejecting the contention of the appellants that no liability can be fastened as mishap of death of the deceased therein was due to lightening and thus it is an Act of God, the Hon'ble Supreme Court holding that the workmen, if injured as a result of natural force, such as lightening though in itself has no connection with employment, she can recover compensation by showing that such employment exposed her to such injury. The decision in Mackinnon Machenzie and C.O. (P) Ltd. v. Ibrahim Mahmmed Issak 1969 (2) SCC 607 was referred to by the Hon'ble Supreme Court in Ram Prasad's case (supra) rendered in the context of accident arising out of and in the course of employment explaining the meaning "in the course of employment". The facts in the instant case are squarely covered by the decision in Ram Prasad's case (supra) as the death of the deceased occurred while he was driving the tractor due to thunder bolt and lightening and in that view of the matter, certainly, the petitioners, who are the legal heirs of the deceased, have to work out their remedy under the provisions of the Workmen's Compensation Act, 1923 and cannot invoke the provisions of the Motor Vehicles Act, 1988. 13. Therefore, the appeal is devoid of merit and consequently, stands dismissed. However, it is open to the appellants to approach the appropriate forum to work out their remedy in accordance with law. There shall be no order as to costs. 14. As a sequel thereto, miscellaneous applications, if any, pending in the appeal, stand disposed of.