JUDGMENT B.N. Sapru, J.
1. These first appeals from orders arise out of a claim petition filed under the Motor Vehicles Act before the Motor Accident Claims Tribunal.
2. In F.A.F.O. No. 484 of 1975, the appellants are the Oriental Fire & General Insurance Company Limited and Ashok Kumar Fathak, the owner of the vehicle, which was involved in the accident and the claimants are the respondents, while in F.A.F.O. No. 21 of 1976, the claimants are the appellants and the owner of the vehicle, Ashok Kumar Pathak, and the Oriental Fire & General Insurance Company Limited with whom the vehicle was insured, are the respondents.
3. The Claims Tribunal had decreed the claim petition in the sum of Rs. 25,600 and directed that the claimants would be entitled to pendente lite and future interest at the rate of six per cent per annum on the amount decreed in their favour.
4. The claimants in their appeal have urged that the amount of compensation awarded is inadequate while in the appeal by Ashok Kumar Pathak and the Insurance Company it is asserted that in the first place the claim petition should have been dismissed on the ground that the rashness and negligence on the part of the driver was not established and secondly that even if the claim petition is to be decided in favour of the claimants, the amount of compensation awarded by the Claims Tribunal is excessive.
5. Admittedly, an accident took place on 11-7-1973 at about 6-30 A.M. in which truck No. MPA 6253 belonging to Ashok Kumar Pathak was involved. In the accident Prem Narain Dubey aged about 22 years who was a cleaner-cum-driver of the vehicle, was killed.
6. The case of the claimants was that the accident occurred because of the rashness and negligence on the part of the driver of the vehicle which was backed in a rash and negligent manner as a result of which the truck overturned and crushed Prem Narain Dubey. The claimants claimed Rs. 50,000 as the compensation.
7. The owner of the vehicle and the Insurance Company filed separate written statement though their plea was similar. They alleged that the accident occurred not on account of the negligence of the driver of the truck but due to negligence of the cleaner. It was further claimed that the claim was excessive and the Insurance Company further pleaded that the forum in which the claim petition should have been filed, was under the Workmen's Compensation Act before the Commissioner under that Act and the claim petition before the Motor Accident Claims Tribunal was not maintainable.
8. In order to prove the circumstances in which the accident occurred, the claimants produced Bachai P.W. 2 who was an eye-witness of the accident. He deposed that the accident took place in his village Bhatai. He further stated that the wood belonging to Sunder was laden on the truck and the truck was being taken to the wood-shop of Sunder where Sunder sold his wood. He stated that the truck had first stepped and Prem Narain Dubey got down from the truck and was helping the driver in backing. The driver backed too fast and the truck came on the Kachcha Patri and its wheel sank and that truck overturned. The wood laden on the truck fell on Prem Narain Dubey who died as a result thereof. The witness is a natural witness and he belongs to the village. Nothing has been suggested in his cross-examination as to why he should depose against the owner of the vehicle and in favour of the claimants.
9. It is necessary to add here that the accident took place on 11-7-1973 on Jangi Road, also called Mirzapur Road, in front of Swadeshi Cotton Mills, Naini, Allahabad. July being the month in which we have rains, the statement of the witness that the wheel sank in Kachcha Patri while the vehicle was being reversed, appears to be a correct version of the facts.
10. There is no counter-version on behalf of the owner of the vehicle or the Insurance Company. The driver of the vehicle was not produced. No other witness had also been produced by them. In the circumstances, the version given by Bachai has to be accepted. The conclusion necessarily follows that Prem Narain Dubey died because the driver of the vehicle backed the truck at a fast speed on to the Kachcha Patri as a result of which the wheels of the vehicle sank in. the earth which must have been soaked with the water and thereby overturned and the wood on the, vehicle fell on Prem Narain Dubey who died as a result thereof. The argument of the learned counsel for the Insurance Company and the owner of the vehicle that the accident did not take place on account of the rashness and negligence on the part of the driver, therefore, cannot be accepted. The driver of the vehicle was the best person to explain the circumstances in which the accident took place but he had not been produced by the owner of the vehicle, Ashok Kumar Pathak, or by the Insurance Company.
11. Having found that the owner of the vehicle and the Insurance Company are liable to pay the compensation, the question as to the amount of compensation must now be dealt with.
12. In F.A.F.O. No. 484 of 1975, the learned counsel for the appellant Sri A. B. Saran has urged that the Motor Accident Claims Tribunal was bound to award the compensation to the claimant in accordance with the provisions of the Workmen's Compensation Act and could not award the compensation higher than the amount of the compensation the claimants would have been entitled to receive and would have been admissible to them under the Workmen's Compensation Act.
13. Sri A. B. Saran argued that under the provisions of Section 95(2)(a) where the vehicle is a goods vehicle, a limit of Rupees 50,000 in all including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to employee (other thap the driver) not exceeding six in number being carried in the vehicle, the Insurance Company is liable to pay the compensation in respect of the death of an employee only under the provisions of the Workmen's Compensation Act, 1923 and not otherwise. The difficulty, in accepting this argument is that Section 110AA of the Motor Vehicles Act provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death or bodily injury to any person gives rise to a claim for compensation under this Act (Motor Vehicles Act) and also under the Workmen's Compensation Act, 1923 the person entitled to compensation may claim such compensation under either of these Acts but not under both. The effect of Section 110AA of the Motor Vehicles Act is that it gives an option to the claimants either to seek the compensation under the Workmen's Compensation Act or under the Motor Vehicles Act. What is prohibited is that the claimants cannot claim the compensation, under both the Acts,
14. There is nothing in the Motor Vehicles Act to show that while awarding compensation to an employee under the Motor Vehicles Act, the Tribunal is bound to apply the Schedules framed under the Workmen's Compensation Act for determination of the compensation.
15. Coming to the argument of Sri A. B. Saran based on Section 95 (2) (a) of the Motor Vehicles Act, the interpretation of the section is that first there is a limit of Rs. 50,000 in respect of death or bodily injury to an employee. This limit also applies in the case of a claim for the compensation under the Workmen's Compensation Act. The words 'a limit of Rs. 50,000 in all, including the liabilities, if any, arising under tha Workmen's Compensation Act' in the section indicate that the provision is inclusive, i.e. in other words, it provides for a liability of the Insurance Company both under the Motor Vehicles Act and also under the Workmen's Compensation Act, If the words 'if any, arising under the Workmen's Compensation Act, 1923' had not been in the section, it would have been open to the Insurance Company to urge that the liability of an Insurance Company is limited to the Motor Vehicles Act and would not extend to the Workmen's Compensation Act, These words have been incorporated to prevent any such argument. The argument of Sri A. B. Saran that the compensation to the claimants should have been awarded in accordance with the provisions of the Workmen's Compensation Act has, therefore, necessarily to be rejected.
16. Coming now to F.A.F.O. No. 21 of 1976 filed by the claimants, it is urged by Sri V. K. Burman appearing for the claimants that the Tribunal had erred in not taking into account the income of the deceased from his work as a commission agent while determining the quantum of the compensation. To prove the income of the deceased only one witness, namely Ram Sunder, the fattier of the deceased was produced. He stated that the deceased was working as a driver-cum-cleaner on the vehicle on a salary of Rs. 220 per month and was, in addition, carrying on the work of commission agent and used to earn Rs. 10 per day from this work. Ram Sunder stated that no account of the commission agency was maintained by the deceased. The Tribunal did not believe Ram Sunder's statement because there was nothing to corroborate his statement that the deceased was carrying on the work of commission agency in particular when there was no account.
17. The deceased was a full time employee and it was unlikely that he would have time tc carry on the business of commission agent. If the deceased was carrying on the work of commission agency, there would have been some account to show that he was doing thaf business. Ram Sunder was obviously interested in giving evidence as a result of which the amount of compensation could be enhanced. No independent witness is available to corroborate him. In the circumstances, we find that the deceased Prem Narain Dubey was not carrying on the work of commission agent and the Tribunal rightly refused to award any compensation under this head, to the claimants.
18. The income of the deceased was Rs. 220. He must have spent Rs. 120 on himself and would have contributed Rupees 100 towards the maintenance of his family. This finding of the Tribunal calls for no interference. On the basis of the monthly contribution of Rs. 100, the compensation has been correctly determined by the Tribunal,
19. The net result is that F.A.F.O. No. 484 of 1975 and F.A.F.O. No. 21 of 1976 are dismissed. Since both the appeals have been dismissed, the parties will bear their own costs.