FAO No.2786 of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2786 of 1998 DATE OF DECISION: March 23, 2011 RAWAT ...APPELLANT VERSUS UNITED INDIA INSURANCE COMPANY LTD. ...RESPONDENTS PRESENT: MR. SUDHIR AGGARWAL, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENT NO.1. MR. V. RAMSWAROOP, ADVOCATE FOR RESPONDENT NO.2. 2. FAO No.476 of 1999 UNITED INDIA INSURANCE CO. LTD. ...APPELLANT VERSUS RAWAT AND ORS. ...RESPONDENT CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. V. RAMSWAROOP, ADVOCATE FOR THE APPELLANT. MR. SUDHIR AGGARWAL, ADVOCATE FOR THE RESPONDENTS. ---- K.KANNAN, J.(ORAL) 1. FAO No.2786 of 1998 is an appeal by the claimant seeking for enhancement of compensation for injuries suffered in the accident. FAO No.476 of 1999 is an appeal by the insurer against the award of FAO No.2786 of 1998 -2- compensation on the issue of liability. 2. The claimant was a driver in a truck who in transit from Delhi to Bangalore had an accident when the vehicle capsized on application of brakes and the claimant had suffered extensive injuries which resulted in loss of his right foot and amputation of two toes in the other leg. The total disability assessed was 100%. Having regard to the fact that he was a driver who would have lost his earning, I would take 100% disability to have resulted in 100% loss of earning capacity as well. 3. The claimant had contended that the accident had taken place only on account of poor upkeep of the vehicle by its owner. The owner who was arrayed as 1st respondent denied the said fact. I cannot accept the plea that the driver wanted the vehicle to be serviced and the owner refused it and therefore, the accident had taken place. If there was a mechanical defect which resulted in accident by the failing of brakes and the driver had suffered injuries, I would find the fault of both the driver and the owner in not having a proper upkeep of the vehicle. It cannot be merely a responsibility for an owner for the upkeep and the driver cannot at any time become an unwilling party to a poor upkeep of the vehicle. Ultimately, it is driver who drives the vehicle and if he does not bring to himself the requisite safety for driving a vehicle which is road worthy, he exposes the public at large for running a vehicle which could pose a grave danger to any member of the public. I will, therefore, reject the plea of the driver that the accident was only on account of the negligence of the owner. If the vehicle was not motorable and if it was not in a road worthy condition, he ought to have refused to drive the vehicle and after opting to drive, he cannot be heard to complain that the owner was not prepared to effect repairs for the FAO No.2786 of 1998 -3- vehicle. 4. If the claim was made by the driver against his employer and the insurer, the appropriate forum must have been only the Workmen Commissioner. The option which is granted under Section 167 of the Motor Vehicles Act is on many occasions wrongly understood. If a claim is possible both under the Motor Vehicles Act as well as Workmen Compensation Act, then such a claimant can opt to prosecute the case either before the Tribunal or before the Commissioner, as the case may be. To illustrate a point if the accident takes place when the employee in the course of employment drives his vehicle and has a collision with yet another vehicle belonging to third party, the claimant who could be a workman driver has a right to file a case against his employer before the Workman Compensation Commissioner under the Workmen Compensation Act or at his option, he may cast the fault of accident against the driver and owner of the opposite vehicle which had been involved in the accident in the case instituted before the MACT. A driver, it could be seen, in such a situation exercises the option under Section 167 of the Motor Vehicles Act. 4. This distinction brings to focus the forum which the driver could have invoked in a case where he has involved himself in an accident in the course of his employment by his own negligence or has in some way contributed to the accident. The right of enforcement cannot obtain before the Motor Vehicles Act for, the Motor Vehicles Act must be understood as creating a forum for enforcement of claim as a specie of tort. The exceptions to tortious claims are provided under the Act itself, namely, the liability for no-fault under Section 140 or the strict liability as permitted through Section 163-A of the Motor Vehicles Act. For the application of FAO No.2786 of 1998 -4- the latter provision there have been authorities to the effect that a tort-feasor cannot himself make a claim under Section 163-A. It will be wrong to assume that for every accident by the use of an motor vehicle the resort could be had only under the Motor Vehicles Act. The Motor Vehicles Act provides in a forum for a particular type of litigation only. In this case the appropriate forum in a case where it could be found that driver himself was responsible for driving a non-motorable vehicle, he could have resorted only under the Workmen Compensation Act. I will not take this, however, as a ground for dismissing the petition in the manner sought for by the owner and insurer in the appeal FAO No.476 of 1999. This Court is a Court of appeal under Section 30 of the Workmen Compensation Act and therefore, I will take this as a petition filed under the Workmen Compensation Act and I proceed to determine the compensation. 5. The applicability of the Workmen Compensation Act has a bearing also to the quantum of compensation that is determinable. The Workmen Compensation Act contains a specific formula to be adopted in terms of Section 4 read with Schedule I that deals with the assessment of loss of earning capacity resulting in permanent total disablement or permanent partial disablement. In this case the disability was total and the loss of earning capacity for the reasons stated above is taken to be total. His salary was `2900/- and in terms of Section 4, by applying a factor relatable to the age of the claimant at 27 years, the appropriate factor would be 213.57. The compensation would be `2900x50%x213.57=`3,09,676.50. The Tribunal has already awarded `2,15,330/- and this shall be, therefore, an additional amount that will become payable to the claimant. The same shall be the liability of the insurer who is bound to indemnify the liability FAO No.2786 of 1998 -5- cast on the employer. This amount will also bear interest @12% as provided under the scheme of the Workmen Compensation Act. The determination of compensation under the Workmen Compensation Act throws out a reckoning of any scope for loss of earning capacity, inconvenience or pain & suffering for other conventional heads of claim that are possible of being applied in case under Section 168 of the Motor Vehicles Act. There is also no scope for also determining any medical expenses under the Workmen Compensation Act. It must be assumed that the 'factor' provided under the Workmen Compensation Act has an inbuilt formula of reckoning all the conventional heads mentioned above. 5. The appeal filed in FAO No.2786 of 1998 is allowed enhancing the compensation as referred to above and FAO No.476 of 1999 filed by the insurer and the owner is dismissed. March 23, 2011 (K.KANNAN) Gulati JUDGE