FAO No.1326 of 1998 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1326 of 1998 Date of Decision.01.07.2010 The New India Assurance Co. Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through Sh. K.B. Bindal Law Officer/Asstt. Manager duly constituted Attorney/Authorized person. ........Appellant Versus Miss Annu aged 14 years (minor) and others ...Respondents Present: Mr. Raj Kumar Bishamboo, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The insurance company is in appeal by contending that a claim for compensation for death of a driver could not have been a subject of dispute before Motor Accident Claims Tribunal. It is contended that the Forum for action ought to have been only the Workmen's Compensation Act. 2. In my view, the submission is palpably incorrect and against the grain of the provision of the Motor Vehicles Act. The provisions of the Act are applicable to all cases of claim arising out of the use of motor vehicle. The first thing that has to be seen in order that the approach to the Forum is correct, is to see whether FAO No.1326 of 1998 -2- the claimants contend that the cause of action was the use of a motor vehicle. If it is found that the consequence arising out of such a user resulted in death or injuries, the claim for compensation before the Motor Vehicles Act is tenable. The second aspect has to be still seen is if a driver driving a motor vehicle meets with death, whether the legal representatives could approach the Motor Accident Claims Tribunal or the option would be only to pursue the remedy under the Workmen's Compensation Act. The statute itself provides an answer through an option that could be exercised under Section 167 of the Motor Vehicles Act, 1988. Section 167 reads thus:- “167. Option regarding claims for compensation in certain cases. Notwithstanding anything contained in the Workmen'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 this Act and also under the Workmen'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.” 3. In view of the clear language expressed through Section 167, it cannot be doubted that even the legal representatives of a deceased driver, who was a workman shall have a right to approach the Motor Accident Claims Tribunal for appropriate reliefs. Learned counsel appearing for the insurance company urges that a claim has to be examined in the context of whether the driver is a third party and if he was not a third party, then a claim before the Motor FAO No.1326 of 1998 -3- Vehicles Act is not maintainable. This argument suffers from a fundamental blemish that the Tribunal's jurisdiction could be invoked only by third parties to accidents. There could be any number of situations where the owner himself could have a relief under the Act. It could just as well be a workman, who could also approach the Tribunal under the Act, for Section 147 makes provision for compulsory insurance under the Act, which includes through the proviso to Section 147 that it shall not be necessary to cover liability for any death arising out of or in the course of employment other than the liability arising under the Workmen's Compensation Act. If the policy of compulsory insurance is to cover the risk for the death or bodily injury arising out of a motor accident to person, who would be covered under the Workmen's Compensation Act then the choice of a Forum by a workman or a legal representative to approach the Tribunal for compensation cannot be doubted. 4. Even otherwise, the High Court is the Forum for appeal both under the Motor Vehicles Act and under the Workmen's Compensation Act. If the Court hearing an appeal is entitled to apply the provisions of Workmen's Compensation Act that are contended to be applicable, even on that score the High Court's jurisdiction to consider the case cannot be ousted. It has also been decided by the Patna High Court in New India Assurance Company Limited Vs. Mohd. Yunis (1996) 1 SCC 442; 1996 ACJ 86 to which view I fully endorse that merely because the deceased driver was an employee or a workman under the insured and a claimant could have FAO No.1326 of 1998 -4- filed a claim petition under the Workmen's Compensation Act, it would not seem reasonable that when a Tribunal entertains a petition, it could assess the compensation only under the Workmen's Compensation Act. The mode of assessment of compensation will be just compensation which Section 166 of the Motor Vehicles Act provides in such a case. However, all the trappings of proof and entitlement under the Motor Vehciles Act alone could be applied in such a case. 5. Consequently, if the choice of forum had been the Motor Accident Claims Tribunal, the requirement of proof of negligence of a person other than the deceased has to be established. Or, if without proof of negligence, the claim were to be pursued under Section 163A of the Motor Vehicles Act, the claim could not be allowed for a tort feasor. In the case of collision, the claim itself could not be considered under Section 163A without clearly finding that the deceased was not in any way responsible for the accident. It has been held by the Karnataka High Court in Appaji (since deceased) Vs. M. Krishna 2004 ACJ 1289 that the representatives of a tort feasor cannot make a claim under Section 163A to which view I concur. The learned counsel has circulated judgments of the Hon'ble Supreme Court in Ningamma and another Vs. United India Insurance Co. Ltd. 2009 ACJ 2020 and New India Assurance Co. Ltd. VS. Sadanand Mukhi and others 2009 ACJ 998 but the said decisions do not address this issue directly. The former deals with the impossibility of providing for indemnity to an owner for the claim on behalf of the owner himself or a person standing in his shoes and FAO No.1326 of 1998 -5- the latter judgment deals with the claim by the insured for the death of his son who has himself the driver. The decision of the Tribunal that the claim could be pursued against the employer and insured under Motor Vehicles Act, in case of collision even without finding that the deceased was not a tort feasor is clearly wrong, especially when the claim was under Section 163A of the Motor Vehicles Act. 6. Virtually, I would have felt constrained to remit the matter to the Tribunal for fresh consideration but there has been no appearance on behalf of the claimants despite service. As I have observed, the claim under Section 163A of the Motor Vehicles Act could not be against his own employer/insured without proving that he was not a tort feasor. The claim could have been under the Workmen's Compensation Act. To do complete justice to the party, I shall treat the case as a claim under the Workmen's Compensation Act and make the insurer liable as through it were a claim under the Workmen's Compensation Act. The scale of compensation for a person who was 50 years of age, earning Rs.5,000/- would still be above Rs.1,44,000/-, which is the amount awarded by the Tribunal. The award is confirmed, although under a different line of reasoning. The appeal is consequently dismissed. (K. KANNAN) JUDGE July 01, 2010 Pankaj*