1. This appeal has been filed against the judgment and award dated 11.3.1994 passed by the Motor Accident Claims Tribunal, Valsad at Navsari, in M.A.C.P. No.442/1986, whereby, the tribunal has dismissed the claim petition.
2. The facts in brief are that the present appellant was serving as a driver in a Tempo bearing registration No. GTT- 3673. On the date of accident, the appellant along with one Suvalal Gomajki Patel was returning to Bardoli. The present appellant was driving the said tempo. At that time one tempo bearing registration No. GTT-7890 came from the opposite direction and collided with the tempo of the appellant. As a result of the said accident, the appellant sustained injuries. Therefore, he filed claim petition being M.A.C.P. No.442 of 1986. The Tribunal after hearing learned advocates for the parties and after perusing the record has dismissed the claim petition against which the present appeal is filed by the appellant- original claimant.
3. The learned Counsel for the appellant submitted that the Tribunal has committed an error in dismissing the claim petition. He submitted that the tribunal failed to appreciate the material on record in its true perspective and therefore, he has prayed to allow the present appeal.
4. On the other hand, learned Counsel for the respondents have opposed the appeal and have prayed to dismiss the same, as being without merit. In support of his contention he relied upon the decision of this Court, in the case of United India Insurance Company Ltd. Vs. Jagatsinh Valsinh and Others, reported in 1986 GLH. 573.
5. I have heard learned counsel appearing for both the parties and perused the material on record. I also perused the decision of this Court relied upon by the learned counsel for the respondents. Paragraph 7 of the said judgement is reproduced as under:-
7. The claimant is held to be a tort-feaser. It is beyond comprehension as to how a tort-feaser can be awarded compensation for the tortuous act committed by him. 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. If the claimant was negligent he cannot come forward and say “pay me compensation for my own negligence”. The Tribunal has not examined whether the position of a tort-feaser who is employee, would be different from other tort- feasers. In the instant case, the claimant was employed by respondent No.2 to drive his Metador. It was in the course of his employment that the claimant sustained injuries, resulting in permanent disablement. Therefore, the question arises whether even apart from workmen's compensation Act, under general law, can an employee claim compensation for the injuries sustained by him in the course of his employment even in a case where he is found to be negligent. This aspect of the case has not been examined at all by the Tribunal. It is not disputed that the claimant could have preferred claim under the workmen's Compensation Act; but the question which is posed above is whether even apart from the provisions of the workmen's Compensation Act, the claimant could have claimed compensation from his employer and the appellant insurance Company with whom the Metador was insured on the ground that he has sustained injuries in the course of his employment. In this context, the question whether the brakes were defective may assume importance. The claimant has stated that brakes of the Metador were defective and he had drawn the attention of respondent No.2 owner to this defect, but respondent No.2 did not care to repair or remove the defect. It would appear that if what the claimant says is true, the claimant was made to drive the Metador with defective brakes by respondent No.2. If this were so, would respondent No.2 the owner of Matador not be liable to pay damages or compensation to the claimant for the injuries and resultant disablement suffered by him, because it was he who had exposed the claimant to the risk of being involved in the accident causing such injuries, although he knew that the brakes were defective ? The Tribunal examined the question of defective brakes only in the context of defence of the appellant insurance company that it was not liable to pay any compensation because the Metador with defective brakes was taken on the road. Prima facie there is no reason why the claimant's statement that brakes of the Metador were defective and that he had informed about this defect to respondent No.2 should not be accepted. We are distressed to find that the Tribunal has not appreciated the importance of the statement regarding defective brakes made by the claimant and summarily discarded the statement holding that the brakes were not proved to be defective. The Tribunal, no doubt, could have come to the same conclusion on proper appreciation of the evidence on record; but what we are constrained to observe is that firstly it has not appreciated the importance of the question and secondly it has not dealt with it in the manner it should have. However, if we have to decide the question of awarding compensation to the claimant only on the basis of the finding recorded by the Tribunal, it must be held that the claimant is not entitled to any compensation, the Tribunal having found that accident occurred on account of his own negligence. 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 cause him injuries. We may hasten to add that we are making this observation only in the context of findings recorded by the Tribunal without going into the question whether even if the claimant was negligent, the owner of the vehicle could have been held liable for paying him compensation as the accident occurred in the course of the employment, or the question whether owner of the vehicle would be liable to pay compensation to the claimant because he was exposed to the risk of accident having been asked to drive defective vehicle.”
6. In view of the above, I am of the opinion that the present appeal deserves to be dismissed. Apart from that learned advocate for the appellant is not in a position to show anything from the record to take a different view in the matter. Therefore, the present appeal is devoid of any merits, and the same is, accordingly, dismissed.
(K.S.JHAVERI,J.)
pawan