1.0 This appeal is directed against the judgement and award dated 30.11.2004 passed by the Motor Accident Claims Tribunal (Aux.), F.T.C.2, Bhavnagar in Motor Accident Claim Petition No. 393 of 2001 whereby the learned Tribunal has partly allowed the claim petition and awarded an amount of Rs. 3,16, 500/ together with interest at the rate of 6% from the date of the petition till realization.
2.0 On 19.01.2000 Kanjibhai Madhubhai Chauhan working as a Cleaner was coming from Ahmedabad to Bhavnagar after unloading the goods at Ahmedabad in Truck No. GJ 4T 9884. At night he started vomiting due to heavy work and his health started to deteriorate. When they reached near Dholera Chaukadi near Bhavani Hotel at 1.30 at night, he suffered heart attack and died. The legal heirs of the deceased, therefore, filed the aforesaid claim petition before the Tribunal wherein the Tribunal has passed the award as mentioned hereinabove. It is against the said judgement and award that the present appeal has been filed.
3.0 Learned Advocate appearing for the appellant contended that deceased Kanjibhai Madhubhai Chauhan expired on account of heart attack which is natural death and not on account of an accident arising out of the use of a motor vehicle. Therefore, the claim petition under Section 163A of the Motor Vehicles Act is not maintainable. Therefore, the learned Tribunal has committed error in awarding the compensation under the provisions of the Motor Vehicles Act.
4.0 Learned advocate for the respondent submitted that from the evidence on record it was clear that the deceased died during the course of his employment. From the evidence of F.I.R, and in view of the decision of the Hon'ble Apex Court, the claimants are entitled to an award under the Workmen's Compensation Act.
5.0 Mr. Shah for Mr. Sejpal, learned advocate for the respondent contended that assuming without admitting that death is not because of the use of the vehicle, the claimants were entitled for amount under the Workman Compensation Act. He submitted that instead of remanding the matter to the Tribunal in view of decision of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84.= 2012 (2) SCC 356, this Court may award the amount of compensation in view of the provisions of Workmen's Compensation Act. The same is opposed by learned advocate for the appellant.
6.0 The accident has taken place on 19.11.2000 and the fact remains that deceased died while he was on duty. In that view of the matter, without entering into the question whether it was accidental death or natural death, the contention of the appellant is accepted that it was natural death. The fact remains that death of the deceased was during the course of employment. The contention raised by the learned Tribunal is required to be accepted. The Tribunal has committed error in awarding the amount under the provisions of Motor Vehicles Act. In view of the provisions of Section 147(2)(b), I am of opinion that the Insurance Company will be liable under the provisions of Workmen's Compensation Act and it is not in the interest of justice to remand the matter after a long lapse of time.
7.0 The salary of the deceased was Rs. 3000/ and therefore the loss can be taken at Rs. 1500/. The deceased was 45 years old and therefore the factor of 169.44 can be applied. Hence the claimants are entitled to Rs. 2,54,160/ (Rs 1500 x 169.44) under the Workmen’s Compensation Act. Thus the appellant Insurance Company is liable to make the said amount by way of compensation.
8.0 In view of the above, it is held that the Insurance Company is liable to make payment of Rs. 2, 54, 160/ as compensation to the claimants at the rate of 12% from the date of judgement of the Tribunal. The balance amount shall be refunded to the Insurance Company. If the claimants had already withdrawn the amount, it will be open for the Insurance Company to recover the balance from the owner of the vehicle at the rate of 12% per annum. The appeal is allowed to the aforesaid extent with no order as to costs.
9.0 It is made clear that this order shall not be treated as precedent.
(K.S.JHAVERI, J.) niru*