FAO No.539 of 1992 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.539 of 1992 Date of Decision. 03.08.2010 The New India Assurance Co. Ltd., Patiala through its duly constituted attorney .........Appellant Versus Shanti Devi W/f Bhakty Ram and others .......Respondents 2. FAO No.540 of 1992 The New India Assurance Co. Ltd., Patiala through its duly constituted attorney .........Appellant Versus Santosh .......Respondent 3. FAO No.541 of 1992 The New India Assurance Co. Ltd., Patiala through its duly constituted attorney .........Appellant Versus Daulti W/f Ram Lal and others .......Respondents 4. FAO No.541-A of 1992 The New India Assurance Co. Ltd., Patiala through its duly constituted attorney .........Appellant Versus Shrimati Khando Devi w/o Buta Ram and others .......Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. None for the respondents. 5. FAO No.448 of 1992 Khando Devi wife of Buta Ram ......Appellant Versus Hoshiar Singh alias Mara son of Amar Singh ......Respondent FAO No.539 of 1992 -2- Present: None. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. All the five cases arise out of a common award. FAO Nos.539, 540, 541 and 541-A of 1992 are at the instance of the insurance company and FAO No.448 of 1992 is at the instance of one Khando Devi whose case by the insurance company is covered in FAO No.541-A of 1992. The case of the claimants was that they had all been employed to pluck peas and they were all taken in the tractor trailer and the accident took place when during their course of employment, the trailer turned turtle and the persons, who were seated in the trailer were injured in the accident. The insurance company took a defence that they were all passengers in a goods carriage and therefore, the policy of insurance would not cover the risk for the injuries suffered by them. The Tribunal, however, held that all these persons were workmen, who were engaged by the driver on that day for doing the work on behalf of the employer and they were, therefore, entitled to make a claim in such capacity as workmen against the employer, who was the insured for the vehicle. The Tribunal held that the risk was to be compulsorily covered by virtue of the provisions of Section 147 and therefore, proceeded to assess the compensation on the basis of evidence adduced by the respective claimants and supported by medical evidence through FAO No.539 of 1992 -3- PW-15. 2. Learned counsel appearing for the insurance company states that the claimants had not given any specific details of the nature of employment and who employed them. In the absence of a pleading relating to a contract of employment by the insured, the insurer could not be made liable. In the matter relating to contract of employment for plucking peas in a horticultural operation, the very nature of employment is informal and the absence of written documents evidencing the contract, in my view, are not relevant. The Workmen's Compensation Act under Section 2(n) admits of a flexible definition to include any employment specified in Schedule II whether the contract of employment was express or implied, oral or in writing. The class of employment in Schedule II would answer the description as specified under entry (xxix), which includes the persons in horticultural operations, forestry, bee-keeping or farming by tractors or other contrivances driving by steam or other mechanical power or by electricity. The further clause in Clause (xix) (a) and (xix) (b) also refer to employment in cultivation of land and clearing jungles. Therefore, I have no doubt in my mind that all the claimants were "workmen" under the Workmen's Compensation Act. 3. Although the accident arose out of the use of a motor vehicle, in order to make the insurer liable, it would require to be proved that the driver had been negligent in driving of the vehicle. In this case, the trailer seems to have turned turtle by the negligent driving of the driver and therefore, by virtue of the provisions of FAO No.539 of 1992 -4- Section 167 of the Motor Vehicles Act, the claimants will have a right of option to proceed either under the Workmen's Compensation Act or under the provisions of Motor Vehicles Act. 4. Learned Senior Counsel, Sh. Suri argued that if they were all workmen, the claims could have been filed only under the Workmen's Compensation Act and not under the Motor Vehicles Act. This situation would arise in a case of claim by the representatives of the driver himself when it ensued death by the negligent driving of the workman himself. The principle is that a tort feasor or his representative could have no rightful cause of action under Motor Vehicles Act. But if other workmen are injured by the negligent conduct of yet another workman, the jurisdiction of the Tribunal is attracted by the fact that the injuries have been caused by the use of a motor vehicle. Section 166 requires that the application for compensation should arise out of an accident in the nature specified under Section 165(1) by a person who had sustained the injuries. Section 165(1) of the Motor Vehicles Act states that an adjudication for compensation shall be made in respect of accident involving the death or bodily injury to persons arising out of the use of motor vehicles. The entitlement of a workman to proceed under the Motor Vehicles Act, therefore, is not excluded and the claim before the Tribunal, under the circumstances, is justified. 5. Learned Senior Counsel further argues that if the claim is made by the workmen against their employer, the scale of compensation shall be only in the manner provided under the Workmen's Compensation Act. If the compensation itself could be FAO No.539 of 1992 -5- only under the Workmen's Compensation Act then such a contention would be perfectly tenable but if there was a choice of forum which is available and the requirements of Section 165(1) and Section 166 are satisfied then, in my view, there shall be no difficulty for the Tribunal to assess the compensation as just compensation in the manner set forth under the Motor Vehicles Act itself. There could be instances where a workman or representative may not be able to claim compensation under the Motor Vehicles Act such as when the driver who was a workman dies in an accident while driving in the course of employment by his own negligence. Since the provisions of the Motor Vehicles Act addresses a specie of the law of tort, the proof of negligence is a sine qua non before a claim could be lawfully made before the Motor Vehicles Act. The Workmen's Compensation Act, however, sets out a different principle of making the employer liable for the injury or death arising out of under the course of employment. Even negligent act of the workman himself may be irrelevant if it results in death. Therefore, if a claim were to be prosecuted by a workman, who had suffered injury by his negligence, an action before the Motor Vehicles Act shall be impermissible while his remedy would be only under the Workmen's Compensation Act. The other class of cases are cases where the workman will have a right of action against the employment both under the Workmen's Compensation Act as well as under the Motor Vehicles Act. The cases that we are dealing with fall in the second category of persons, who could lawfully address the claims either before the forum under the Workmen's Compensation Act or before FAO No.539 of 1992 -6- the Motor Accident Claims Tribunal. The scale of compensation shall then be the Act that the claimant invokes. 6. In this case, if all the claims are possible before the Motor Vehicles Act then the scale of compensation shall also be in the manner prescribed under the Motor Vehicles Act. In this case, the Tribunal has referred to the fact that all the claimants were earning amounts in the range of Rs.20/- to Rs.25/- per day and the accident had resulted in fractures in the limbs for each one of the persons. The details of the fractures are set out in para 20 of the award as follows:- “1. Daulti claimant suffered two Rs.5,000/- fractures (right and left thigh) 2. Shanti Devi (fracture right thigh) Rs.4,000/- 3. Khando Devi (fracture right thigh Rs.4,500/- + 20% permanent disability) 4. Santosh (fracture left thigh) Rs.4,000/-” 5. The doctor has given a certificate of permanent disability only to Khando Devi, who is the appellant in FAO No.448 of 1992 but in respect of others, there has been no evidence of permanent disability except that they had all suffered injuries resulting in fracture and suffered loss of income by their inability to work for a brief period. The Tribunal has awarded compensation of Rs.34,000/- to the claimant in MACT No.6 (Santosh), Rs.35,000/- to claimant in MACT No.7 (Daulti), Rs.34,500/- to the claimant in MACT No.8 (Khando Devi), Rs.34,000/- to the claimant in MACT No.9 (Shanti Devi). The Tribunal has assessed Rs.20,000/- towards the mental agony, shock, pain and suffering and taken Rs.10,000/- as damage on FAO No.539 of 1992 -7- account of loss of income. For the fractures, the Tribunal has determined the compensation in the range of Rs.5,000/-, Rs.4,000/- and Rs.4500/- in the case of Khando Devi. At the time when the appeals were admitted, it appears that this Court had allowed the claimants to receive upto Rs.25,000/- and had stayed the balance amount. At this length of time, I do not seek to even make a reappraisal of the compensation, for that would mean denial of claim to the tune of few thousand of rupees. I maintain the awards granted to each one of the claimants and dismiss all the appeals including the appeal filed by Khando Devi for enhancement. It must be stated that Khando Devi has not placed any more record than what was brought before the Tribunal where the doctor had given the evidence to the effect that she has permanent disability. She had been awarded Rs.34,500/-, which in my view is just compensation. 6. All the appeals are dismissed. (K. KANNAN) JUDGE August 03, 2010 Pankaj*