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2017 DIGILAW 162 (HP)

Oriental Insurance Company Limited v. Ramku

2017-03-10

MANSOOR AHMAD MIR

body2017
JUDGMENT : Mansoor Ahmad Mir, J. 1. It is stated that respondent no. 2, one of the legal heirs/representatives of the owner- insured, has died during the pendency of the appeal, but other legal heirs/representatives are already on record. Thus, there is no need to bring legal representatives of deceased- respondent no. 2 on record. Accordingly, name of respondent no. 2 is deleted from the array of respondents. 2. Challenge in this appeal is to award, dated 15th October, 2011, made by the Motor Accident Claims Tribunal-I, Solan, District Solan, H.P. Camp at Nalagarh (for short “the Tribunal”) in Petition No. 4-NL/2 of 2007, titled as Smt. Ramku vs. Shri Ram Rakha (since deceased) through his LRs. and Others, whereby compensation to the tune of Rs. 4,33,000/- with interest @ 7.5% per annum from the date of filing of the petition till its realization came to be awarded in favour of the claimant and the insurer was saddled with liability (for short “the impugned award”). 3. The driver, the legal heirs of owner-insured of the offending vehicle and the claimant have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 4. The insurer has called in question the impugned award, by the medium of the instant appeal, on the following grounds: (i) That the claimant has failed to prove that the deceased was travelling in the offending vehicle as labourer/cleaner; (ii) That the deceased was a gratuitous passenger; (iii) That the amount awarded is excessive; (iv) That the claimant has earlier filed petition under Workmen's Compensation Act, 1923 (for short “WC Act”), which stands withdrawn by her, thus, is now precluded from filing the claim petition under Motor Vehicles Act, 1988 (for short “MV Act”). 5. All the aforesaid grounds are not tenable for the following reasons: 6. The claimant filed claim petition before the Tribunal for grant of compensation, as per the breakups given in the claim petition, on the grounds taken therein. The claim petition was resisted by the respondents and the following issues came to be framed by the Tribunal: “1. Whether the deceased had died in the accident on account of rash and negligent driving of the tractor by the respondent no. 2? OPP 2. If issue no. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP 3. Whether the deceased had died in the accident on account of rash and negligent driving of the tractor by the respondent no. 2? OPP 2. If issue no. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP 3. Whether the respondent no. 2 did not possess a valid and effective driving license at the time of accident, if so, its effect? OPR-3 4. Whether the tractor is not a public service vehicle, if so, its effect? OPR-3 5. Relief.” 7. Parties were directed to lead evidence. The claimant examined Shri Ramesh Verma as PW-1, Shri Basheer Mohd. as PW-3 and she herself stepped into the witness box as PW-2. It is apt to record herein that the owner-insured, the driver and the insurer of the offending vehicle have not led any evidence. Thus, the pleadings and the evidence led by the claimant have remained un-rebutted. 8. The claimant has specifically pleaded and proved that the deceased was working with the offending vehicle as a labourer/cleaner and was travelling in the said capacity in the offending vehicle at the time of the accident. The Tribunal has made discussion in para 8 of the impugned award about the said factum. 9. It was for the insurer or owner-insured and driver of the offending vehicle to plead and prove that the deceased was not travelling in the offending vehicle as a labourer/cleaner, have not led any evidence, thus, have failed to discharge the onus. There is not even a single iota of evidence on record to the effect that the deceased was travelling in the offending vehicle as a gratuitous passenger. Viewed thus, it is held that the deceased was travelling in the offending vehicle as a labourer/ cleaner. 10. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence to drive the same, has not led any evidence, thus, has failed to discharge the onus. However, I have perused the record. The driving licence of the driver is on the record as Ext. RB, the perusal of which does disclose that the driver of the offending vehicle was having a valid and effective driving licence to drive the same. 11. However, I have perused the record. The driving licence of the driver is on the record as Ext. RB, the perusal of which does disclose that the driver of the offending vehicle was having a valid and effective driving licence to drive the same. 11. The amount awarded, to me, appears to be too meagre, but, unfortunately, the claimant has not questioned the same, is reluctantly upheld. 12. The claimant has specifically pleaded that the deceased was working as a labourer/cleaner with the offending vehicle. Thus, the claimant was having a legal right to claim compensation in terms of the WC Act, because the deceased was stated to be under employment of the owner-insured, insurer had to indemnify as per the terms and conditions contained in the Policy and the compensation was to be granted as per the Schedule attached with the said Act. Section 167 of the MV Act provides an option to lay a claim petition either before an authority under the WC Act or before the Tribunal. It is apt to reproduce Section 167 of the MV Act: “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 provisions of Chapter X claim such compensation under either of those Acts but not under both.” 13. While going through the provisions of law, one comes to an inescapable conclusion that the claimant being the legal representative of the employee-deceased, has two remedies to claim compensation and in terms of Section 167 of the MV Act, she can seek compensation at higher side. It is not disputed that the claimant is not legal representative/ dependant of the deceased. Thus, the claimant was within her rights to file petition seeking compensation under WC Act. Withdrawal of the said petition by the claimant cannot be made a ground to defeat her right to seek compensation under MV Act in lieu of the death of her deceased son. 14. All the points framed hereinabove are determined accordingly. 15. Having said so, the impugned award is well reasoned, needs no interference. 16. Withdrawal of the said petition by the claimant cannot be made a ground to defeat her right to seek compensation under MV Act in lieu of the death of her deceased son. 14. All the points framed hereinabove are determined accordingly. 15. Having said so, the impugned award is well reasoned, needs no interference. 16. Having glance of the above discussions, the impugned award is upheld and the appeal is dismissed. 17. Registry is directed to release the awarded amount in favour of the claimant strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in her bank account after proper identification. 18. Send down the record after placing copy of the judgment on Tribunal's file.