Partly allowed

Tahsin v. Yogesh Kumar and Another

Allahabad HC6 Sept 2019FAFO/2723/2006

Case brief

AI extract

What is this about?

An appeal against an award dismissing a motor accident claim under Section 167 of the Motor Vehicles Act, 1988. The Single Judge held that dismissal of the WC claim due to non-establishment of employment does not bar the MV Act claim, quashed the impugned order, fixed income details, and awarded Rs. 3,32,400 with 7.5% interest.

What did the court decide?

Quashed the impugned order. Respondents to indemnify jointly and severally under Section 163-A of the Motor Vehicle Act, 1988. Awarded total compensation of Rs. 3,32,400 with interest at 7.5% per annu

Tahsin Vs Yogesh Kumar and Another — Motor Accident Claims | Allahabad HC (2019)

A.F.R.

[1]

Court No. - 33

Case :- FIRST APPEAL FROM ORDER No. - 2723 of 2006

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Appellant :- Tahsin Respondent :- Yogesh Kumar And Another Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent :- J.N.Singh,Sunil Kumar Mishra,V.C.Dixit,Vipin Chandra Dixit

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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1. Heard Sri Nigamendra Shukla, learned counsel for the appellant and Sri V.C. Dixit, learned counsel for the New India Insurance Company and Sri Sunil Kumar Mishra, learned counsel for the respondent no.3.

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2. This appeal, at the behest of the claimants, challenges the judgment and award dated 06.07.2006 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Meerut (hereinafter referred to as 'Tribunal') in M.A.C. No. 902 of 2004.

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3. The brief facts of the ligation are accident took place between truck bearing No. HR38D-2694 and bus bearing No. U.P. 15 E9712. The claimants are the parents of the deceased who claimed to be a labourer on the said truck. The accident is not in dispute. The truck being insured by the insurance company is not in dispute, the insurance company and nor the U.P.S.R.T.C. have disputed the accident having taken place even before this court. The claimants who are the parents of the deceased had first filed the claim before the Workmen Commissioner on the stand taken by the owner that they had not engaged Taufik as a workmen, the said claim petition was dismissed. Instead of challenging the said order the claimants

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[2]

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preferred claim petition before the Motor Accident Claims Tribunal. Unfortunately, the Motor Accident Claims Tribunal also dismissed the claim petition filed under Section 163-A of the Motor Vehicle Act,1988 holding that the claim petition was barred by section 167 of the Motor Vehicles 1988 (hereinafter, referred as the “Act, 1988”). The Claims Tribunal came to the conclusion that though the vehicles were involved in the accident but as the Workmen Commissioner was first approached the claim petition was barred under Section 167 of the Motor Vehicle Act, 1988.

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4. The accident policy, death of the deceased, involvement of vehicles are not in dispute. The Motor Accident Claims Tribunal nonsuited the appellants holding that the claim petition was barred under Section 167 of the Motor Vehicles Act, 1988. It is this rejection which is assailed by the claimants.

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5. The Tribunal could not have decided the issue of negligence as it was a petition under Section 163 of the Act, 1988.

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6. It is submitted that all issues are wrongly decided by the Tribunal. it was a petition under Section 163-A of the Motor Vehicle Act, 1988. The Workmen Commissioner held that the deceased was not a workman but it is nobodies case that accident did not take place and the claimant was injured and died due to use of Motor vehicle Act.

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7. Learned counsel for the appellant has relied on judgment in the case of Raja and another Vs. Ajay and another reported in 2007 (2) ACCD 1008 (MP) to contend that as the claim under Workman Compensation was dismissed as not maintainable, the rejection petition under section 167 of Motor Vehicle act is bad.

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8. The grounds urged are that:-

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"(a). The learned Tribunal grossly erred in law in dismissing the

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claim petition because the correct interpretation of Section 167 of the MV Act is that simultaneous claims on the ground of the applicability of Section 167 of the Motor Vehicle Act, 1988 and workman compensation Act are not maintainable.

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(b). The correct interpretation of Section 167 of MV Act is that simultaneous claims cannot be laid both under Workmen's Compensation Act and under Motor Vehicles Act. The language of Section 167 is quite clear and unambiguous and it cannot be consitite that if any claim petition has been filed under the Workmen's Compensation Act and has been dismissed on any ground not available under that Act, the claim petition filed under the Motor Vehicles Act on any ground available there under is also liable to be dismissed on the technicality without adverting to the merits of the case but the learned tribunal badly filed to appreciate this position of law.

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(c). The sine qua non of the availability of relief under the Workmen's Compensation Act is the employer employee relations and it this relationship is not established, any claim petition under the said Act is liable to be dismissed as in the instant case. But it does not fallow there from on the language of Section 167 of MV Act that dismissal of the claim petition under the Workmen's Compensation Act will render the claimants remediless and they cannot lay claim under the Motor Vehicles Act when the claim is otherwise admissible under the Motor Vehicles Act. The learned tribunal badly failed in law to apply his mind to the correct legal position.

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(d). The insurance under the Motor Vehicle act covers the third party risks and if the third party becomes the victim of an accident caused by a motor vehicle, the insurer of the vehicle becomes automatically liable and it cannot escaped the liability on the ground that the claim

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petition under the Workmen's Compensation Act was dismissed.

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(e) In view of the above, it is clear that what is prohibited by Section 167 of the Motor Vehicles Act is the simultaneous laying of the claim petition under both the Acts. This is quite reasonable and rational. The under lying policy is that a person cannot claim two remedies simultaneously. Naturally therefore, when one remedy is refused, there is no bar in claiming an other remedy if it is available in terms of the statute. The learned tribunal dismissed the claim petition filed by the appellant on a wrong premise and lost sight of the correct legal position that what is prohibited by Section 167, MV Act is simultaneously laying of the claims under the both statues.

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(f). If section 167 is correctly construed, it will be clear that the object of prohibition there under is that a claimant cannot be doubly benefited. Clearly, therefore. there is no bar when there is no chance of double benefits. It is well settle that the law gives relief and does not do injustice. Any other interpretation of Section 167, MV Act will be nothing but to deny justice not permitted by law."

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9. Section 167 of The Motor Vehicle Act reads as follows:-

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"167. Option regarding claims for compensation in certain

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cases.- Notwithstanding anything contained in the Worker's Compensation Act, 1923 (8 of 1923), where the death of, or bodily injured to, any person gives rise to a claim for compensation under this Act and also under the Worker's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. "

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Section 167 in The Motor Vehicle Act, 1988 gives option to the claimants to seek compensation either under workman Compensation Act, 1923 or The Motor Vehicle Act, 1988. They

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cannot file a claim petition under the provision of both the Acts and the benefit under both legislation.

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There have been few cases where applicant first claimed the compensation under one act and then tried to be compensated again under another act for same mishap. Karnataka High Court authority, and appealed for compensation under Section 173(1) of Motor Vehicle Act, and the Judge B. Manohar, J. held that a claimant can only seek compensation either under Employees Compensation Act, 1923 or Motor Vehicle Act, they cannot claim petition under both the provisions. The claimant was found to have claimed his compensation under Employees Compensation act and was awarded the compensation for the death of his family in a road accident while he was proceeding on a motorcycle. Then again he was trying to claim compensation under Section 163 A of the motor vehicle act.

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In Civil Appeal No.937 of 2013 (Insurance Company Limited vs. Dyamavva & Ors) decided on 5^th February, 2013. Here Yalgurdappa B. Goudar died in a road accident after he left for his home completing his office work. The accident occurred when he was riding on the pillion of a motor cycle and was hit by a tripper. He was compensated by his company an amount of INR 3,26,140/- under workman compensation Act, 1923. Besides his claim under workman compensation Act, 1923, Dyamavva Yalgurdappa, also raised a claim under section 166 of Motor vehicles act 1988 in Bagalkot and was awarded a compensation of INR 11,44,440/- But however the Motor Accident Tribunal ordered a deduction of compensation amount paid by his employer from this compensation amount stating that one could not ask for compensation under both the acts.

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10. While interpreting the provision of section 167 of the Act no doubt any option is given to the claimant to file petition under any of the Act, in our case the Workman Commissioner rejected the claim petition of the claimant parent and it held that the deceased was not an employee. The respondent no.1 did not appear before the Workman Commissioner. The parent had the elected the forum of W.C. but the W.C. Commissioner rejected the same holding that deceased Taufik was not proved to be a helper and therefore the claim is not maintainable before him. The employer refused to accept that Taufik was not a helper on his this statement the claim petition was dismissed by the workman Commissioner.

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11. A question arises as to whether for the death of a person where a motor vehicle is involved can be non suited by both the forum namely the Workman Commissioner and the Motor Vehicle tribunal established under Act, 1988. The answer would be a no as if both the remedies are barred. The principle of Ubi jus ibi remedium will be frustrated as from the facts it is clear that the accident has taken place it is proved that the deceased was in the truck. It has been denied that it was not a driver. The driver has not been stepped into witness box. his dead body was found from the place of accident and his claim petition was not allowed by the Commissioner on the ground that factum of employment was denied by the owner . The Section 167 of Motor Vehicles Act, 1988 has been interpreted time and again by the apex court and the claim petition would not have been dismissed . The claim before the workman commissioner was incompetent and therefore it cannot be said that the claimants had opted a forum. In this case, even if, we go by the principle of Section 167 of the Motor Vehicle Act, 1988 the judgment in Raja and another Vs. Ajay and another reported in 2007 (2) ACCD 1008 (MP), paragraphs 4 and 5 read as follows:-

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"4. In the appeals in hand, it is clear, that the claim of the workmen that he was employee of respondent No.1 was not accepted in view of the preliminary objection raised by the employer to the effect that the claimants as workmen of respondent no.1, had never been engaged by the said respondent for any work, whatsoever. However, in such a situation where the person has been non-suited on the ground that the basic foundation on which he had proceeded was nonexistent, we are of the view that even after dismissal of their case on the technical ground, they cannot be derived of the remedy of approaching the Tribunal under the Motor Vehicles Act against the torfeasor. under these circumstances, it cannot be inferred that the claimant has availed both the benefits under the Workmen's Compensation Act and also under the Motor vehicles Act. Had it been a case where compensation was granted, the other remedy would have been barred but in this case the claim itself has been dismissed as not maintainable and, therefore, the invoking of the proceedings was without jurisdiction ab initio. in this view of the matter we are of the considered view that the appellants in the present case can still approach the Tribunal under the Motor Vehicles Act, 1988.

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5. In view of the above discussion, we allow these appeals to the extent that notwithstanding the order passed by the Workmen's Commissioner, the appellants shall be free to approach the Tribunal under the Motor Vehicles Act. With the above liberty to the appellants, these appeals are disposed of with costs. Counsel Fee Rs.500/- shall be payable to the counsel for each of the respondents. "

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12. And the latest judgment of the Apex Court in this case even if very strict view is taken, it cannot be said that the claim petition was not maintainable against the driver, owner and Insurance Company of

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the vehicle involved in the accident. In this case, it is an admitted position of fact that two vehicles were involved in the accident. Even if, it is held that Section 167 of the Motor Vehicles Act, 1988 to be applicable. The claim against the other owner and driver would not have been dismissed. The fundamental question and requirement the use of motor vehicle irrespective of the factum of employment and therefore invoking the bar of Section 167 is perverse. In light of the fact that it was a case of torturous Act involving more than one vehicle, the provisions of Section 167 of the Act would not have been made applicable as no compensation was paid under the Workmen Compensation Act, 1923. The Apex Court in 2004 ACJ 934 has held that there is no bar for claimant to file an application under Section 163-A of the Act, 1988, if no compensation was granted where third party risk is involved the claimant who has been held not to be the employee or a workmen can file claim under Motor vehicle Act AIR 2013 ACJ 709 Supreme Court has considered and even amount is awarded under W.C. a claim petition for remaining amount is sustainable. In that view of the matter the claim petition could not have been dismissed by the Motor Vehicles Tribunal.

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13. The jurisdiction of the Tribunal is to do justice and both the legislations are meant for doing justice and the cause of action arose when the accident occurred and that the deceased was held not be a cleaner.

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14. It is submitted by Sri V.C. Dixit, learned counsel for the New India Insurance Com. Ltd. that he was labour. If this fact is accepted by the Insurance Company the dismissal of the claim petition by the Workmen Commissioner is bad in eye of law and that if W.C. is rejected, the claim petition was maintainable before the Motor Accident Claims Tribunal. The reasons being two vehicles were involved the deceased was a non tort-fessor and that it was a claim

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petition filed under Section 163-A of the Motor Vehicles Act, 1988 which is clear pleadings of the parties. The F.I.R. proved the accident which has been accepted by the tribunal. The accident also proved before the tribunal. The ownership is proved. The owner now before the tribunal in paragraph 23 that he has not received any compensation before W.C. Commissioner and that the tribunal should have granted compensation to the claimants just by holding that he was a labourer on a different vehicle general truck. Having held that the claim petition was maintainable after 19 year should this court remand the matter to the tribunal or as the record is before this court decide the quantum in its jurisdiction under Section 173 of the Act, 1988. The manner in which a claim petition under Section 163-A of he Motor Vehicles Ac,t 1988 has to be decided as per the ratio laid down in the case of Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd, Baroda (2004) 5 SCC 385 and therefore the claims tribunal could not have even frame the issue of negligence it is Section 163-A reads as follows:-

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" 163-A. Special provisions as to payment of compensation on structured formula basis:-

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(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

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(2) In any claim for compensation under sub-section (1), the

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claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

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(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. "

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15. 2018 ACJ page 1 United India Insurance Company Vs. Sunil Kumar lays down the ratio that point of negligence is not required to be decided in a claim petition preferred under section163-A. In Shivaji Vs. Divisional Manager, 2018 AIR SC 3705 raising the issue of negligence itself is inconsistent with legislative object in introducing the provision for final compensation on structure basis, hence, 163-A does not contemplate deciding issue of negligence hence the issue no. 1 and 4 raised by the tribunal could not have been raised and they were in fact wrongly raised. The tribunal over looked the fact that it was an application under Section 163-A and not 166 of the M.V. Act, 1988, hence framing of issue no. 1 and 4 itself caused illegality. Recently this court in F.A.F.O. No. - 3189 of 2003 (Smt Bitti And Others vs. Abdul Farooq @ Kallu And Others) Paragraphs 15 and 16 reads as follows:-

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"15. It is submitted by the counsel for the appellant that in view of the judgment in the case of F.A.F.O. No.534 of 1995 (Brahma Dutta Sharma Vs. Umesh Sharma and Others) decided on 30.01.2019 wherein para 14, it has been held as follows:

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“14. The finding of the Tribunal are perverse. The tempo being a bigger vehicle as no legal evidence has been produced to show that the claimant had contributed to the accident. Tribunal has not given proper reasons for holding him

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negligent whether he had taken permission to come Jhansi or not is of no relevance and it has not been brought on record that because he has left place of service, he was negligent. The conclusive proof of against the tempo driver, therefore, the tribunal committed manifest error in holding the appellant first contributory negligent and coupling with no proper reply for leaving the head quarter. There is no evidence about the motorcycle being driven negligently by the appellant at the time of accident. The Respondent did not produce any such evidence and there is a charge sheet against the tempo driver which prima-facie pointed towards the negligence of the appellant. Thus the finding of contributory negligence cannot be sustained. I am supported in my view in Mangla Ram Versus Oriental Insurance Company Limited, (2018) 5 SCC 656. ”

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16. Bithika Mazumdar Vs. Sagar Pal (2017) 2 SCC 748 wherein it has been held that compensation claim petition which remained undecided for nine years and the record was before the Apex Court, the Apex Court decided the quantum.

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Similarly, this court feels that as sixteen years have elapse from filing of claim appeal and that the record is before this court instead of directing the parties to go before the tribunal only for the assessment of compensation which could cause further delay and will also cause further loss to the destitute family. This court in Brahma Dutta Sharma Vs. Umesh Sharma and Others (supra) has taken similar view and therefore I without remanding the matter as the principles for determination of compensation are well settled venture to decide the compensation here."

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Hence I propose to decide the matter on merit for compensation also. 16. It was a petition under Section 163-A even if it is held that he was a third party and not a labourer then also his claim petition ought

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to have been allowed. There cannot be bar under Section 167 even if it is held that he was not an employee on the truck the involvement of two vehicles will give a rise to claim under section 163 A of the Act, 1988.

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17. It is submitted by learned counsel for the appellant that the Tribunal has not considered issue no.5 in his proper perspective holding that he could avail of only one forum. This issue has been wrongly decided. The findings are quashed for thus the compensation payable to the claimants who are the parents of deceased who was 21 years of age will have to be decided.

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18. The income of the deceased in the year 2000 can safely be considered to be Rs.2000/- per year as he was a labourer. 40 % of Rs.2000/- will have to be added as per judgment in the case of National Insurance Company vs. Pranay Sethi and others. Counsel for the appellant has relied on the decision of the Division Bench of this Court in First Appeal From Order No. 2548 of 2013 (Ravi Shanker Tiwari and another Vs. Praveen Kumar Jain and others) decided on 2.2.2018. It is further submitted that the interest also requires to be awarded as per the provision of Act and multiplier should be applied on the basis of age of the deceased.

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19. As against this, it is submitted by learned counsel for the respondent that the income which has not been proved cannot be granted and amount has rightly not been awarded by the Tribunal.

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20. After hearing the learned counsel for the parties and perusing the judgment and order impugned, this Court feels that the income of the deceased, in the year of accident, should have been at least Rs.2,000/- per month namely Rs.24,000/- per year, to which as the deceased was 21 years of age, 40% of the income requires to be added as future income which would come to Rs.24,000+9,600= 33,600/-.

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The deduction of 1/2 towards personal expenses of the deceased will have to be made. Hence, after deduction of 1/2, the annual datum figure available to the family would be Rs.16,800/-. The multiplier of 18 will have to be granted. Rs.30,000/- for filial consortium to the parents. Hence, the claimants are entitled to a total compensation of Rs.16,800 x 18+ 30,000= 3,32,400/-.

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21. However, the rate of interest which is 6% would be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

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"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

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22. In this case the rate of interest should be 7.5% from the date of filing of the claim petition till the amount is deposited by all the respondent jointly and severely as it was proved that vehicles was involved in the accident.

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23. While going through the cover note, it is covering the person in the truck. The respondents have not examined anybody despite that dismissing the same on the ground that it is barred by under Section 167 of the Motor Vehicle Act is bad in eye of law.

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24. The judgment is quashed. The respondents shall indemnify jointly and severely under Section 163-A of the Motor Vehicle Act,1988. The appeal is partly allowed.

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Order Date :- 06.09.2019 // Krishna

Tahsin v. Yogesh Kumar and Another

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Tahsin v. Yogesh Kumar and Another

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