HIGH COURT OF CHHATTISGARH ATBILASPUR t.'\ SB: Hon'ble Shri Justice R. L. Jhanwar, M^A.No,628of2006 APPELLANT Respondent No.2 RESPONDENTS The Oriental Insurance Company Limited, Versus Smt. Manorama Devi and others Q R D E R For Pronouncement of Order ^.10.2010 Sd/- R.L. Jhanwar Judge 4 .10.2010 ^%%s^ ^fi— _ '!^^ ^\^v HIGH COURT QF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.^lQ.628of2006 APPELLANT ReSDondent No.2 RESPONDENTS i : The Oriental Insurance Company Limited, Ravishankar Shukla Market, Power House, Bhilai, Tahsil and District Durg (C.G.) Through its Divisional Manager, Durg (C.G.) Versus 1. Smt. Manorama Devi, W/o LateAlakh • • '" * '" ' Bihari Sao, aged about 21 years. 2. Ku. Poonam D/o Late Alakh Bihari Sao, aged about 3 years, Mother Smt. Manorama Devi, W/o Late Alakh Bihari Sao. 3. Churaman Sao, S/o late Sakhi Sao, aged about 55 years. 4. Smt, .Sona Devi, W/o Churaman Sao, aged about 50 years, All residents of Gurughasidas Nagar, Jamul Thana, Jamul, P.0. Housing Board, Bhilai, Tahsil and District Durg (C.G.) Originally resident of village Nauner P.0. Dihra Police Station—Obra, District - Aurangabad (Bihar) 5. R.K:Choudhary S/o Late Maharaj Choudhary, aged about 50 years, R/o Power House Camp No. 02, Fish Market, Bhilai, Tah. And District - Durg (C.G.) (Ownerof Vehicle Tata407 Metador No. C.G. 07/Z.B./1078, Old No. M.P. 24 C/2849) APPEAL UNDERSECTLOX173 OF THE MOTOR VEHICLES ACT Appearance: Shri Manish Upadhyay and Shri K.N.Chaturvedi, Advocates for the appellant. Shri P.P.Sahu, counsel for respondents No. 1 to 4. None for respondent No.5. ORDER (Passed on1, .$0.2010) 1&~ -r-% ^ ^ The Oriental Insurance Company has filed this appeal for setting aside award dated 30.01.2006 passed by the 12th Additional Motor Accidents Tribunal (F.T.C.), Durg in claimcase No. 39/2005 whereby the Claims Tribunal awarded a sum of Rs.2,91,400/- as compensation to the claimants No. 1 to 4. 2. Brief facts, in a nutshell, are that on the date of incident i.e. 23.10.2002 deceased Alakh Bihari Sao was the driver carrying Tomatoes from Bhilai to Jagdalpur in vehicle 407 bearing No. C.G.07ZB/1078 (Qffending vehicie). At one kilometer away from Parasgaon, dueto his ovvn rash and negligent driving, the offending vehicle •became uncontrblied, resultirig irito, hit agaihsl: the hnango tree, and Alakh BJhari has died instantaneously on the spot. 3. On account of death ofAlakh Bihari, the legal representatives ofthe deceased preferred a claim petition under Section 166 of theMotor Vehicles Act. 4. Respondent No.S/Owner of the offendjng vehicle filed his written statement cpntending that he had no knowledge as to how the accident took place; on the dateof accident the said offending vehicle was insured with the appellant/insurance company, therefore, insurance company is liable for payment. ,,. ^, ^,.- . - 5. The appellant/insurance company also filed its written statement denying all the facts as mentioned in claim petition. It wasspecifically pleaded therein that on the date of accident, the vehicle was being driven against the terms and conditions ofthe insurance policy. 6. After affording opportunityof hearing to the parties and recording evidence of the parties, the Claims Tribunal, on close scrutiny of the evidenceled before it, inter alia holding that the driver of the offending vehicle was himself negligenf in driving the offending vehicle rashly, dueto which, the saidoffending vehicle was uncontrolled, resulting into, death of driver on the spot, awarded a sum of Rs.2,91,400/- as total compensation to the claimants with interest at 7% per annum from the date of filing of claim petition till the date of actual payment. It is this order; the appellant/insurance company preferred this appeal. IN^* 7. Learned counsel for the appellant argued that basic premium of Rs.30/- was paid the owner to cover the risk of driver and cleaner of the vehicle but ur . Annexure A-2 of policy of insurance the basic premium did not cover the risk of driver. Healso argued that since the appellant / insurance company was restricted to Workmen Compensation Act (for short 'the Act') and covered the risk of driver & cleaner under the Act, therefore, for the death of driver theappellant is not liable under Motor Vehicles Act. He alsoargued that legal liability for paid drivers / workmen No.2 was mentioned in the policy, therefore, the liability of the insurance company was fixed statutorily under Workmen Compensation Act. It was also argued that the insurance policyis in fact a contractbetween the parties and the policy being in nature of contract, the parties are bound by the insurance policy. It was also argued that under Workmen Compensation Act, theclaimant is entitled to receive compensationof Rs.2,26,044/- instead of Rs.2,91,400/-. Lastly, it was urged that compensation of Rs.2,91,4007- awarded by the Tribunal is on higher side. 8. On the other hand, learned counsel for the respondents/claimants No. 1 to 4 while supporting the impugned award argued that compensation awarded by the learned Tribunal is just and proper compensatiori. 9. Having heard learnedcounsel for the parties, 1 have perused the record ofthe Claims Tribunal and impugned order. 10, In this case, for the death of driver - Alakh Bihari on accountof motor accident, the legal representatives of the deceased filed claim petition under Section 166 of the Motor Vehicles Act and the learned Claims Tribunal also awarded compensation under the provisjons of M.V.Act, to the claimants. Section 167 of the M.V. Act starts with non- obstante clause and under this Section, option was provided to the claimants to file claim application for compensation before the Claims Tribunal or before the Commissioner for Workmen Compensation. Section 167 ofthe M.V. Act reads as under: Section 167: Option regarding clajms for compensation in certain cases.- Notwithstanding any contained in theWorkmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under ^•^^^^ -9 • t;?.;^i3^ . ''^ ;i;N-i®gifc^n ;"\; ^i^/ ^-sy '"-^^p-^s^- this Act and also ynder the Workmen's Compensation Act, 1923, the person entitled tocompensation may without prejudice to the provisions of Chapter X claim such compensation under either of fhose Acts but not under both. After perusal of above, it is clear that the above section gives claimantto make claim one ofthe two forums but not before both meaning thereby the claimant has to make a choice either to claim compensation under the Workmen's CompensationAct or to claim damages under the General Law (i.e. Motor Vehicles Act). If once that option was exercised and an award has been passed under Workmen's Compensation Act, then it is not open to the claimant to avail the remedy under the Motor Vehicles Act and if the award-has been passed under the Motor Vehicles Act, then the claimant cannot claim compensation under Workmen's Compensation Act. The choice is left with the claimant or dependents of the victim in caseof death. That choice must be exercised and onceso exercised, the Act under which they pursue the remedy must decide the quantum ofcompensation inaccordancewith the facts ofthe case. 11. lam fortified in my view by the judgment ofthe Apex Court in the matterof National Insurance Co. Ltd. v. Masten, 2006 ACJ 528 (SC), in para 22 held as under: "Section 167 ofthe 1988 Act statutorily provides for an option fo the claimant stating that where the death pf or bodily injury to any person gives rise to a claim for compensation underthe 1988 Act as also the 1923Act, the person entitled to compensation may without prejudice to theprovisions of Chapter X claim such compensation under either of those Acts but not underboth. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the1923Act." Thus, it is clear from fhe above Section that the claimant or legal representatives of deceased hasoption to choose their remedy under one forum but not under both the forums. 12. So far as insurance policy is concerned, IMT -17 is relevant and reads as under: IMT - 17 Legal Liability to persons employed in Gonnection with the operation and/or Maintaining and/orLoading &/or unloading ofmotor vehicles: In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured againsthislegal liability under: The Workmen's compensation Act 1923 and subsequent amendments of that Act prior to the date of the Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (orcleaner or conduGtor or person employed in loading/or engaged in the services of the insured in such occupation in connection with the ............ and not exceeding six in number (excluding driver) and will in addition be responsible forall costs and expenses incurredwith its written consent. The premium having been calculated at the rate of Rs.15/- per driver (and/or cleaner) or conductor and or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner)." v PROVIDED ALWAYS THAT 1. This Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurance Company or group of Underwriters a Policy of insurance in respect of liability as herein defined for hisgeneral employees. 2. The insured shall take reasonable precaution to prevent accident and shall comply with all statutory obligations. 3. The insured shail keep a record of the name of each driver, cleaner, conductor or person employed in loading and or unloading and the amount or wages salary and other earnings paid to such employees and shall at all times allow the company to inspect such record. 4. In the event of the Policy being cancelled at the requestof the insured no refund of the premium paid in respect of this Endorsement will be allowed Subject otherwise to the terms, exceptions, conditions and Limitationsof the Policyexcept in so faras necessary to meet the requirements of section 147 ofthe MotorVehicles Act, 1988. On perusal of above condition, it is clear that claim application can be filed by the claimants, or legal representatives or bodily injury of person by filing application either under Workmen's Compensation Act or Fata Accidents Act, 1855 or under Common Law. Thus, the claimants in the present case hasfiledthjscaseunderM.V. Act (Common Law), and therefore, the argument advanced by the learned counsel for the appeilant that the policy being restricted to Workmen's Compensation Act, the claimants are not entitled to receive any compensation has no force. Itis also pertinent to mention here that as per the policy, Rs.30/- was charged / i^e. ^^ for paid drivers/workmen No.2 employed in connection with theoperation, maintenance, loading and unloading of the motor vehicle. 1 am of the considered opinion that this clause of the policy cannot override the statutory provisions of Section 167 of the Motor Vehicles Act which starts with non o&stenfe clause that notwithstanding anything contained in the Workmen's CompensationAct, 1923 (8 of 1923) in case ofdeath or bodily injury, the claimants shall be entitled to fileclaim petition under theMotor Vehicles Act or underthe Workmen's Compensation Act, 1923. In the present case, the legal representatives of the deceased rightly chose one option under MotorVehicles Act and according to Motor Vehicles Act, the learned Tribunal has awarded compensation. The learned Claims Tribunal has not committed any illegality or irregularity to award compensation under the provisions of the M.V.Act. 13. So far as compensation of Rs.2,91,400/- awarded by the Tribunal is concerned, in my opinion, it is neithermeager norbonanza, in the facts and circumstances of the case. The Tribunal has awarded just and reasonable compensation tothe clajmants. 14. The law in relation to awarding compensation in accident cases is well settled. Under the Motor Vehicles Act, the Tribunals are under obligation to award 'just and reasonable' compensation to the genuine claimants after deteFmjning thi^ f9<?tum of accident as also the factum of rash and negligentact on thepart ofdriver ofthe offending vehicle. It has to be borne In mind that the compensation is not expected to be windfall for the victjm. The statutory provisions clearly indicate that the compensation must be just and jt cannot be a bonanza. The courts and tribunals have a duty to weigh the variousfactors and quantify the amount of compensation, which should be just andwhich would dependupon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is pivotal consideration and requires judicious appFoach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness. Please see State ofHaryana and another—Vs-Jasbir Kaur and others, (2003) 7 SCC 484 and Helen C. |i!!fM'l^-;':^.-r-::-;"-.-'.li '1:.;^\ M' •v:SSSs5 :^ ,;""s«^ •.-J/ ^,vss^^ ^^^5-^^^^^ Rebello (Mrs.) and others -vs- Maharashtra State Transport Corporatioh anda/iofher, (1999) 1 SCC 90. 15. For the foregoing reasons, l do not find any substance in the appeal; therefore, the appeal filed by the appellant/insurance company is liable to be and is hereby dismissed. No order as to costs. Sd/- R.L. Jhanwar Judge r-?;