1. This appeal has been preferred against the judgment and award dated 21.09.2001 passed by the Motor Accident Claims Tribunal (Aux.), Sabarkantha at Himatnagar in Motor Accident Claim Petition No. 30 of 1990 whereby the said claim petition was partly allowed and the original claimants were awarded total compensation of Rs.3,79,000/ along with interest @ 9% per annum from the date of the application till its realization and proportionate costs.
2. The facts in brief are that the husband of respondent no. 1 while he was serving as a driver of the Truck owned by respondent no. 4 met with an accident, as a result of which he sustained severe bodily injuries and succumbed to the injuries. The legal heirs of the deceased, therefore, filed claim petition, which came to be partly allowed, by way of the impugned award. Being aggrieved by the said award, the appellant – Insurance Company has preferred the present appeal.
3. The learned counsel for the appellant submitted that the Tribunal had no jurisdiction to pass the award without a finding on the issue of negligence, that the deceased himself had been driving the Truck, which dashed with the stationed Truck and therefore the Tribunal ought not to have entertained the appeal. The learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. V. Meena Variyal and others, reported in 2007 ACJ 1284 (=2007(4) ACC 335) wherein while reiterating the principle laid down in Minu B. Mehta’s case held that the victim of an accident or his dependants have an option either to proceed under section 166 of the Act or under section 163A of the Act. And once they approach the Tribunal under section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned.
4. The learned counsel for the appellant has also relied upon a decision of this Court rendered in First Appeal No. 3112/1996 dated 27.12.2011.
5. Heard learned counsel for the respective parties and perused the documents on record. Considering the facts of the case, and keeping in mind the principle laid down in the case of Prembhai's case (supra) the claimants could have preferred claim under the Workmen’s Compensation Act. The claimants could have claimed compensation from the employer and the appellant insurance company with whom the vehicle was insured on the ground that the deceased died during the course of his employment. This is especially so when the claimants have not raised the contention with regard to payment of additional premium before the Tribunal. However, it would not be appropriate to relegate the claimants to resort to the provisions of Workmen’s Compensation Act at this stage and it is only appropriate to consider the appropriate compensation under Workmen’s Compensation Act.
6. At the time of accident the salary of the deceased was Rs.1000/ and therefore the loss can be taken at Rs.400/. The deceased was 25 years old and therefore the factor of 216.91 can be applied. Hence the claimants are entitled to Rs.86,764/ (Rs.400 x 219.91) under the Workmen’s Compensation Act. Thus the appellant Insurance Company is liable to make the said amount by way of compensation.
7. In view of the above, the appeal is partly allowed, The impugned award is modified to the extent that the claimants shall be entitled for total compensation of 86,764/ along with interest and costs awarded by the Tribunal from 21.09.2001. If the amount is not withdrawn by the claimants, then the same shall be refunded to the Insurance Company. However, if the amount has already been withdrawn, the same will not be recovered from the claimants, but the same shall be recovered from the owner of the vehicle. In case the amount is not withdrawn by the claimants, the claimants shall recover the same from the owner of the vehicle. The appeal stands disposed of accordingly with no order as to costs.
[K.S. JHAVERI, J.] /phalguni/