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2015 DIGILAW 1191 (HP)

National Insurance Company Ltd. v. Raj Kumari

2015-08-28

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 10th November, 2008, passed by the Motor Accident Claims Tribunal (I), Sirmaur at Nahan, (for short, the Tribunal), in Claim Petition No.33-MAC/2 of 2007, titled Raj Kumari and others vs. Vijay Kumar and others, whereby compensation to the tune of Rs.3,40,000/-, with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization, came to be awarded in favour of the claimants and the insurer was saddled with the liability, (for short the impugned award). 2. The insured/owner, the driver and the claimants have not questioned the impugned award on any count, thus the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has questioned the impugned award on the grounds, namely – i) the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle; ii) the amount of compensation awarded by the Tribunal is excessive; and iii) the claimants, at the first instance, filed a petition under the Workmen’s Compensation Act, which was dismissed in default, therefore, the claimants are precluded from invoking the jurisdiction under the Motor Vehicles Act, 1988. 4. All the three grounds urged by the learned counsel for the appellant-insurer are not tenable in the eyes of law for the following reasons. The driver of the offending vehicle was having a driving licence and he was made competent to drive a heavy goods vehicle in the year 1995, as is borne out from a perusal of the copy of the driving licence proved on record as Ext.RW-1/C. In the year 1995, the driver was 21 years of age. Thus, it cannot be said that the driver was a minor at the time when he was issued driving licence to drive a heavy goods vehicle and was not competent to drive the heavy transport vehicle. The Tribunal has correctly made discussion on issue No.3 and has rightly decided the said issue against the insurer, which findings of the Tribunal are liable to be upheld and the same are upheld. 5. The Tribunal has correctly made discussion on issue No.3 and has rightly decided the said issue against the insurer, which findings of the Tribunal are liable to be upheld and the same are upheld. 5. As far as second point urged by the learned counsel for the insurer that the amount of compensation awarded by the Tribunal is excessive, the Tribunal has assessed the monthly income of the deceased at Rs.3,000/- per month and after making deductions, it was held that the claimants lost source of dependency to the tune of Rs.2,000/- per month. After applying the multiplier of 14 keeping in view the fact that the deceased was 33 years of age at the time of accident, the Tribunal held the claimants entitled to Rs.3,36,000/- under the head loss of source of dependency. Thus, it is clear that the amount of compensation awarded by the Tribunal is not excessive, rather it is meager. However, the claimants have not challenged the impugned award. Therefore, the findings recorded by the Tribunal on issue No.2 are reluctantly upheld. 6. The third point urged by the learned counsel for the appellant/insurer was that since the claimants had, at the first instance, filed a petition under the Workmen’s Compensation Act and the said petition was dismissed in default, therefore, they were precluded from claiming compensation under the Motor Vehicles Act. The order of dismissal in default is not a decree and in terms of Order 9 Rule 4 of the Code of Civil Procedure, the said order cannot operate as a bar for filing fresh suit/claim petition. 7. Section 167 of the Motor Vehicles Act provides that the claimants have option either to invoke the jurisdiction under the Workmen’s Compensation Act or to file a petition under the Motor Vehicles. The claimants can also invoke the jurisdiction under both the Acts (supra), but in case the Commissioner under the Workmen’s Compensation Act decides the petition at the first place, the other remedy is barred. 8. In the instant case, the petition under the Workmen’s Compensation Act was dismissed in default. Therefore, it was rightly held by the Tribunal that the Claim Petition was maintainable. 9. In view of the above discussion, there is no merit in the appeal filed by the appellant and the same is dismissed. 10. 8. In the instant case, the petition under the Workmen’s Compensation Act was dismissed in default. Therefore, it was rightly held by the Tribunal that the Claim Petition was maintainable. 9. In view of the above discussion, there is no merit in the appeal filed by the appellant and the same is dismissed. 10. The Registry is directed to release the award amount in favour of the claimants strictly in terms of the impugned award. 11. The appeal stands disposed of accordingly.