The appellant is claimant in M.C.O.P.No.156 of 1997 on the file of the Motor Accidents Claims Tribunal (Sub Judge), Chidambaram. He filed the petition claiming compensation of Rs.5,00,000/- for the injuries sustained by him in the road traffic accident which happened on 22.04.1996.
2. In the petition the following are stated:-
3. The petitioner was employed as driver by 3rd and 4th respondents and was earning more than Rs.3,000/- per month in average as salary and batta. On 22.04.1996, the petitioner was driving the vehicle bearing Regn.No.TN-04 A-2349 from Sethiathope to GST near Vikravandi. Two vehicles bearing registration No.TN-72 Z-7336 and TN-04 B-2529, were parked on the left and right side of the road without leaving any space in the middle of the road. While the petitioner was proceeding from south to north, due to the narrow space, he dashed against the two vehicles and due to the accident he sustained multiple grievous injuries. His disability is permanent. He could not stand or walk. He is the sole bread winner of the family having wife and two sons besides his aged parents. All the three vehicles were insured with the fifth respondent.
4. In the counter filed by the fifth respondent, it is stated that the petitioner has to independently establish the fact that the vehicle was covered by valid policy. This respondent denies that the vehicle owners had valid permit FC and RC at the time of accident. The drivers of the vehicles did not have valid driving license at the time of accident. The petitioner has not stated how and in which manner other drivers were negligent in parking vehicles. The accident was not due to the wrong parking of the vehicles. The income of the deceased is denied. The other particulars as to his health and responsibilities towards his family and his injuries are also not admitted. He did not sustain any disability as described. The amount of compensation claimed is excessive and hence the petition has to be dismissed.
5. Two persons by name Guruvayurappan (a) Guru (a) Gurumurthy and one Thirunavukkarasu were travelling in the ill fated lorry driven by this appellant at the time of accident and in the accident both of them died. Their dependents filed two other claim petitions in M.C.O.P.No.375 of 1996 and 155 of 1997 respectively claiming compensation for their death. While granting compensation in the said two claim petitions, the Tribunal dismissed the claim petition filed by this appellant by observing that this appellant being the tort-feaser i.e. he himself caused the accident by means of his negligence, he is not entitled to receive any compensation from the respondents. The said order of the Tribunal is under challenge before this court in this appeal.
6. The learned Tribunal Judge has discussed about the oral evidence on record in the presence of documentary piece of evidence and reached a conclusion that the version expressed by this appellant could not be probable. In the petition it is stated by the appellant that at the place of accident, two lorries were kept parked on either side of the road leaving a narrow space which was not adequate for this petitioner's lorry to enter and pass both the lorries and that has constituted the reason for dashing against one of the lorries and thereafter the impact was made on the other lorry. However, he has stated before the Tribunal at the time of recording oral evidence to the effect that one of the lorries was going in front of his vehicle and it was abruptly stopped without showing any signal and hence his lorry dashed against it. By referring to this oral testimony, the trial judge has observed that it is not acceptable for the reasons that the inconsistent statement which is available in oral evidence is improved version from his original statement and hence it is not true. Finally he has anchored the liability for having caused the accident on this appellant and made him ineligible to get the compensation from the respondents.
7. Concededly all the three vehicles are under insurance with the fifth respondent corporation at the time of accident. It is found in the award of the Tribunal that the fifth respondent had vehemently argued that the claimant, as a driver, should have claimed the compensation under the Workmen's Compensation Act.
8. The learned counsel for the appellant Mr.S.Udhayakumar would submit that eventhough if the appellant is not competent to seek remedy under the Motor Vehicles Act, still his rights could not be curtailed and his competency to receive compensation under Workmen's Compensation Act is always available and this court, having sufficient powers, may grant compensation under the Workmen's Compensation Act and the law in this regard has been settled by this court.
9. In support his contention he places reliance upon a judgment of a Division Bench of this court in Oriental Insurance Co. Ltd. V. Kaliya Pillai and others reported in 2003 ACJ 1021. In the said case, the deceased was a tractor driver, who fell down from the tractor due to his own negligence while driving the tractor and died. The Tribunal held that the insurance company was liable to pay compensation. Challenging the said award, the insurance company preferred appeal before this court and the Division Bench, after having a detailed study of the subject on this point with reference to two Division Bench decision of this court pronounced earlier, reached a conclusion that even though the insurance company could not be held liable under the Motor Vehicles Act, still the dependents of the deceased are entitled to get compensation under Workmen's Compensation Act. The Division Bench taking note of the length of litigation, for the object of shortening the litigation and in the interest of justice, held that the dependents have to be extended the benefit of Workmen's Compensation Act in the circumstances available. This court while dealing with the point has observed thus:-
"It is well settled law that when the owner is not liable, the insurer cannot be held liable. Since the accident was caused only due to rash and negligent act of the driver of the tractor, we hold that the question of vicarious liability will not arise when the claim is made by the tortfeaser himself or any other person claiming under the tortfeaser; accordingly the claim by the claimants is absolutely misconceived and they cannot claim any compensation from the owner of the vehicle; consequently, they also cannot make any claim against the appellant insurance company. However, the insurer's liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference to the contract of insurance which would extend to the liability of the insured under the Workmen's Compensation Act. There is a specific finding by the Tribunal that deceased tractor driver died in the course of his employment. Further, it is not disputed that there was a valid insurance on the date of the accident, and accordingly the insurer was liable to the extent of liability under the Workmen's Compensation Act. In other word, we hold that even thought he insurance company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the Workmen's Compensation Act in order to shorten the litigation and also in the interest of justice, we decide to dispose of the appeal by determining the appropriate compensation in favour of the claimants."
10. In the two other Division Bench decisions referred to in the judgment supra, the judges had dealt with the availability of remedy for the injured or the dependents, if the injured was not alive, in the identical circumstances and rendered a finding that under Motor Vehicles Act they have to be non-suited. But in Kaliya Pillai and others case cited supra, the Division Bench of this court has expressed its view vividly on this point to the effect that this court has got ample powers to allow compensation under Workmen's Compensation Act, though not under Motor Vehicles Act.
The above said decision has been followed by another Division Bench of this court in Oriental Insurance Co. Ltd. V. Krishnan and Others reported in 2004 ACJ 1790.
11. Following the principle laid down in Kaliya Pillai and others case, it has to be necessarily held in this matter that the appellant is entitled for compensation under the Workmen's Compensation Act, even though he is termed to be a wrong doer. The findings furnished by the Tribunal in its award on the factual aspects are proper and there is no necessity to interfere with the same. However, as adverted to already, he, under law, is entitled to receive compensation from the fifth respondent.
12. The appellant has deposed that his left femur and both bones in his left leg got fractured, besides fracture in his left toe and the skin over the right leg got damaged, that his upper lip ruptured, sutured and he also suffered a lacerated injury in his stomach, that he has been taking treatment as in-patient for 38 days in Pondicherry Jipmer Hospital, where he had undergone surgery, that rod was fixed in his femur bone but still it is inside his leg and that he was earning collection batta of Rs.250/- to 300/- per day at the rate of 10% and in addition to this, he got a salary of Rs.90/- per day and that after the accident he could not pursue his ordinary works. As per Ex.P.14 his disability was assessed at 50%. On the strength of the available materials on record, the compensation available to the claimant under the provisions of Workmen's Compensation Act is as follows:-
Age of the injured : 24 years Salary of the injured : Rs.2,000/-
13. As regards the payment of interest on the compensation, again the Division Bench decision of this court in Kaliyapillai and Others case mentioned above is followed. While considering the period from which the interest has to be calculated, this court has taken a view that the interest for the compensation could accrue 30 days after the date of accident and not from the date of quantification of compensation. It is also made clear that the liability to pay interest would run from the date on which it accrues, in favour of the workmen, namely, the date of the accident and not on the date of issuance of orders by the Commissioner for Workmen's Compensation. In the light of the observations afore-stated, the award passed by the Tribunal as regards the nature of disposal of M.C.O.P.No.156 of 1997 is set aside.
14. In the result, the civil miscellaneous appeal is allowed quantifying the compensation payable to the appellant at Rs.1,31,082/- and the interest for the same shall be paid after the expiry of 30 days from the date of accident till the date of payment.
05.02.2009 Index : Yes Internet : Yes asr/ To Motor Accidents Claims Tribunal (Sub Court), Chidambaram S.PALANIVELU, J.
asr/ JUDGMENT IN C.M.A.No.2291 of 2002 Dated : 05.02.2009