1. By way of this appeal under Section 173 of the Motor Vehicles Act, 1939, the appellant – insurance company has challenged the award dated 27.04.1998 passed by the Motor Accident Claims Tribunal (Main), Ahmedabad Rural in M.A.C.P No. 570 of 1991 whereby the Tribunal directed the original opponents to jointly pay compensation of Rs. 2,21,600/- with interest and proportionate costs.
1.1 The original claimants have filed the cross objection seeking enhancement of the compensation amount.
2. The aforesaid claim petition arose out of an accident which occurred on 27.08.1990 when one Danabhai Haranbhai was driving a tractor bearing registration no. GAL 8700 under the instructions of one Dahyabhai Naranbhai who was the owner of the tractor, in which the father of the owner was also travelling. It is the case of the claimants that the tyre of the tractor went into a ditch and original opponent no. 1 lost control of the vehicle and Shri Danabhai as well as Naranbhai sustained injuries to which they succumbed. The original applicants being the legal heirs of the deceased Danabhai- driver of tractor filed claim petition no. 570/1991 seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Sunil Parikh, learned advocate appearing for the appellant has contended that there were two claim petitions which arose out of the same accident and the same came to be disposed of by way of a common judgement on 27.04.1998. It was held therein that the deceased Danabhai was negligent in driving the vehicle in question. He submitted that this finding was not challenged by the present respondents by way of filing cross objection or appeal and therefore the finding arrived at by the Tribunal regarding the deceased Danabhai's negligence has attained finality. He submitted that the Tribunal has not decided the issue regarding liability of the insurance company under Workmen Compensation Act. He submitted that the accident is prior to 1995 and therefore the claimants shall be entitled to at the most 40% of Rs. 1000/- which is the income assessed with a factor of 169.44 which comes to Rs. 67776/- along with 6% interest.
3.1 In support of his submissions, Mr. Parikh has placed reliance on a decision of the Apex Court and this court in the following cases :
(i) Oriental Insurance Co. Ltd. vs. Meena Variyal and others reported 2007(5) SCC 428
(ii) United India Insurance Company Ltd. Vs. Jagatsinh Valsinh and others, reported in 1986 GLH 573
(iii) An unreported decision of this court passed in First Appeal No. 3112 of 1996 on 27.12.2011.
3.2 Mr. Parikh also submitted that the Tribunal has awarded 12% interest from the date of accident which is against the law laid down by the Apex Court. In support of his submissions, Mr. Parikh has relied upon the decision of the Apex Court in the case of UPSRTC Now Uttarakhand Transp. Corpn. Vs Satnam Singh reported in 2011(2) SCALE 432 and submitted that the payment of interest ought to have been from the date of award.
4. Mr. N.D. Gohil, learned advocate appearing for the respondents supported the award passed by the Tribunal and submitted that no interference is called for. He has drawn the attention of this Court to the documents produced below Ex. 26 which were marked 26/1 to 26/3. He has also drawn the attention of this Court to Ex. 29 which is the evidence of P.W. 3 - Vora Akbarbhai Sultanbhai and submitted that in view of his statement it is clear that the accident happened beyond the control of the driver now deceased and it was because of heavy rain that the tractor had gone into the ditch, the fault of which could not be attributed on the deceased driver.
4.1 In support of his submissions, Mr. Gohil has relied upon the decisions of this Court in the cases of Harivadan Maneklal Mody & Another vs. Chandrasinh Chhatrasinh Parmar and Others reported in 1987(2) GLR 1274 and in the case of New India Assurance Co. Ltd. vs. Muna Maya Basant reported in 2001(2) ACJ 940.
5. Heard learned counsel for the parties. I have gone through the averments made in the appeal and documents placed on record including the award of the Tribunal. From the perusal of the award, it is clear that the present appellant had strongly contended before the Tribunal that it is absolved from the liability of paying compensation to the dependents of the deceased tractor driver in view of the finding of the Tribunal that the driver was 100% negligent. It was also argued before the Tribunal that the claimants might have resorted to the remedies available under the Workmen's Compensation Act.
6. At this stage the decisions relied upon by the learned advocate for the apellant is required to be considered. The Apex Court in the case of Oriental Insurance Co. Ltd. (supra) has considered the decision rendered in the case of Minu B. Mehta and another vs. Balkrishna Ramchandra Nayan and another reported in 1977 ACJ 118 (=1977 SCC(2) 441). In the case of Oriental Insurance Co. Ltd. (supra), the Apex Court has held as under:
“In Pushpabai Purshottam Udeshi & Ors. Vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd. & Anr. [(1977) 3 S.C.R. 372], two of the learned judges who constituted the Bench in Minu B. Mehta (supra) held that when a car is driven by the owner's employee on owner's business, the normal rule was that it was for the claimant for compensation to prove negligence. When the Manager of the owner while driving the car on the business of the owner took in a passenger, it would be taken that he had the authority to do so, considering his position unless otherwise shown. If due to his negligent driving an accident occurred and the passenger died, the owner would be liable for compensation. The court noticed that the modern trend was to make the master liable for acts of his servant which may not fall within the expression "in the course of his employment" as formerly understood. With respect, we think that the extensions to the principle of liability has been rightly indicated in this decision.
26. On the facts of this case, there is no finding that Mahmood Hasan, another employee of the owner was driving the vehicle. Even if he was, there is no finding of his negligence. The victim was the Regional Manger of the Company that owned the car. He was using the car given to him by the Company for use. Whether he is treated as the owner of the vehicle or as an employee, he is not covered by the insurance policy taken in terms of the Act --- without any special contract --- since there is no award under the Workmen's Compensation Act that is required to be satisfied by the insurer. In these circumstances, we hold that the appellant Insurance Company is not liable to indemnify the insured and is also not obliged to satisfy the award of the Tribunal/Court and then have recourse to the insured, the owner of the vehicle. The High Court was in error in modifying the award of the Tribunal in that regard.”
6.1 In the case of United India Insurance Company Ltd. (supra), this Court has held that in a case where the claimant is held to be a tort-feasor, he shall not be entitled to compensation for the tortious act committed by him. It is also held therein that if the claimant sustained injuries and suffered disablement as a result of such injuries he has to blame himself for it was his own negligence which caused these injuries and that if the claimant was negligent he cannot come forward and say “pay me compensation for my own negligence”. The court also held therein that it is beyond our comprehension as to how any compensation could have been awarded to the claimant in the face of the finding that it was his own negligence which caused him injuries.
6.2 In the case of unreported decision of this Court in First Appeal No. 3112 of 1996, this court relying upon a decision of the Apex Court in the case of United India Insurance Company Ltd. Vs. Jagatsinh Valsinh and others, reported in 1986 GLH 573 observed that it is evident that the accident has occurred during the course of employment and that it is not disputed that 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 in the course of his employment. It is further observed therein that 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.
7. As far as the decisions cited by learned advocate for the respondent are concerned, in the case of Harivadan Maneklal Modi (supra), this Court has observed that the person entitled to compensation must take a conscious decision and opt for compensation under one or the other statute. It is further observed therein that the language of S. 110AA is clear and it unambiguously conveys that the option is with the dependents to choose their remedy under either of the statutes.
7.1 In the case of New India Assurance Co. Ltd. (supra), the Apex Court has held that under more than one Acts in force, if the party has the remedy for his claim arising out of the same cause of action, and separate Forums for the same are constituted under different Acts, he has to prefer the permissible remedial measures, and if the option is to be exercised, he is free to opt for the remedy out of more than one available under different Acts.
8. As a result of hearing and perusal of records and in view of the decision of the Apex Court, I am of the opinion that the contentions raised by the appellant is required to be accepted. The fact is that the deceased was an employee of the insured and the negligence of the deceased to the extent of 100% is proved. The deceased driver cannot be permitted to take advantage of his own wrong. In that view of the matter, considering the decisions of the Apex Court, this court is of the opinion that the contention raised by the insurance company is required to be accepted. The claimants are entitled for compensation under the Workmen Compensation Act. Therefore, it is appropriate to consider the appropriate compensation under the Workmen's Compensation Act.
8.1 The decisions in the case of Oriental Insurance Co. Ltd. vs. Meena Variyal and others reported 2007(5) SCC 428 and United India Insurance Company Ltd. Vs. Jagatsinh Valsinh and others, reported in 1986 GLH 573 relied upon by learned advocate for the appellant are squarely applicable on the facts of the present case, more particularly when the deceased driver whose legal heirs are the claimants in the present case is held solely negligent for the accident in question.
8.2 In the present case, the income of the deceased is considered at Rs. 1000/- per month. Therefore the loss per month comes to Rs. 400. Considering the age of the deceased, factor of 169.44 can be applied. Accordingly, the amount of compensation comes to Rs. 67,776/-.
8.3 As far as the contention qua payment of interest from the date of award is concerned, the same is required to be accepted in view of the decision of the Apex Court in the case of UPSRTC (supra) wherein it is held that interest on the amount of compensation shall be payable to the claimant from the date of award made by the Workman Compensation Commissioner. Hence the interest of 6% shall be paid to the claimant from the date of award. Accordingly, the appellant insurance company shall be liable for compensation only upto the amount of Rs. 67,776/- with interest @ 6% from the date of award i.e. 27.04.1998.
9. In the premises aforesaid, the appeal is allowed. The award of the Tribunal is quashed and set aside qua liability of the insurance company-present appellant over Rs. 67776/-. The claimants shall be entitled to Rs. 67,776/- as compensation under the Workmen's Compensation Act along with interest @6% from the date of award i.e. 27.04.1998. In view of the fact that appeal by the insurance company is allowed, the Cross objection filed by claimants is dismissed. The amount in excess of Rs. 67,776/- deposited by the insurance company shall be refunded with proportionate interest @12%. However, if the amount is withdrawn by the original claimants, the same shall not be recovered. It will be open for the insurance company to recover the same from the owner of the vehicle in question and if the amount is not paid to the claimant it will be open for the claimants to recover the same from the owner. The award of the Tribunal impugned in the appeal is modified accordingly. No order as to costs.
(K.S. JHAVERI, J.) Divya//