F.A.O.No.975 of 1989. -1- In the High Court of Punjab and Haryana High Court at Chandigarh. F.A.O.No.975 of 1989. Date of decision: Sukhwinder Kaur and others. ...Appellants. Versus The Dabwali Transport Company Private Limited, Bhatinda through its Managing Director and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri Present: Mr. Neeraj Khanna, Advocate. Mr.Rahul Chhatwal Advocate. ... K. C. Puri, J. Judgment. On 5.1.1986 at about 4.30 PM, Harjinder Singh deceased and Harnek Singh were returning from village Rupana to Muktsar after discharging their duty, on cycles. They were coming on the road. Harjinder Singh was going ahead of others. Harnek Singh and Surjit Singh were following him. When they reached near Paper Mill, Rupana, they saw a tractor coming from the front side and behind it, two buses were coming at a very high speed. The first bus overtook the tractor and had crossed Harjinder Singh. Thereafter, bus bearing registration No.PUT-8925, owned by respondent No.1. Dabwali Transport Company Private Limited, driven by respondent Gurcharan F.A.O.No.975 of 1989. -2- Singh in the process of overtaking the tractor, struck with the cycle of Harjinder Singh due to which he fell in the pit. He was taken to the hospital at Muktsar and later on died. A report was lodged with the police. It is further alleged Sukhwinder Kaur is the widow, claimants Jasbir Singh, Gurmit Singh and Amandeep Kaur are children and claimants Karnail Singh and Gurdev Kaur are parents of deceased Harjinder Singh. They filed claim petition for the grant of compensation on account of death of Harjinder Singh in a motor vehicle accident. Respondent Nos.1 and 2 contested the claim petition. They denied all the averments of the claimants. They pleaded that the accident took place due to negligence of deceased. The accident was caused by the bus of Samundri Highways which was proceeding ahead of the bus owned by Dabwali Transport Company. They also denied that the deceased was earning Rs.713.70P. They also took preliminary objection that the claimants had received Rs.45,475/- under Workmen Compensation Act as compensation for the death of Harjinder Singh. Hence, the application was not maintainable under Section 110-AA of the Motor Vehicles Act. Respondent No.3 also contested the claim of the claimants. In the written statement, it has been pleaded in the preliminary objections that the claim petition was vague and did not disclose any cause of action; that no details have been given as to how the amount F.A.O.No.975 of 1989. -3- of Rs.three lacs had been claimed; that the bus in question was not driven by an authorized person having valid and effective driving licence;that the petition was bad for non-joinder of necessary parties such as owner, driver and insurance company of the alleged bus and tractor; that the respondent No.3 was not liable unless and until it was proved that the bus had a valid route permit, fitness certificate and registration certificate at the time of alleged accident and that the liability of the respondent No.3 was limited to the extent of Rs.50,000/- as per provisions of Motor Vehicles Act and the terms and conditions of the policy of Insurance. On merits, it was denied that the bus in question was involved in the accident. Any change in the ownership of the vehicle before the date of alleged accident exonerates the respondent No.3 from any liability. It was denied that the alleged accident took place due to negligence of driver of bus No.PUT-8925. It was also denied that the deceased would have lived upto 90 years had he died a natural death. On the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1.Whether Harjinder Singh died due to rash and negligent driving of bus No.PUT-8925 by Gurcharan Singh? 2.To what amount, if any, the claimants are entitled and from whom? 3.Whether the respondents are not liable due to the defence stated in the written statement? F.A.O.No.975 of 1989. -4- 4.Relief. Vide order dated 24.11.1987, issue No.3 was re-framed as under;- “3. Whether the Insurance Company is not liable due to the defence taken in the written statement?OPR. After the written statement was amended, the following additional issue was framed on 17.1.1989:- “3-A.Whether the claim application is barred under Section 10-A of the Motor Vehicles Act?OPR. The learned Tribunal vide judgment dated 18.2.1989 held under issue No.1 that Gurcharan Singh, respondent caused the death of Harjinder Singh by driving bus No.PUT-8925 rashly and negligently on 5.1.1986. Under issue No.2, the dependency of the claimants upon Harjinder Singh,deceased was assessed at Rs.4,200/- per annum and by applying a multiplier of 16, the total compensation worked out was Rs.67,200/-.Under issue No.3, respondent No.3, Insurance Company was held to pay the compensation. Under issue No.3-A, it was held that Sukhwinder Kaur claimant had already received Rs.46,475/- under the Workmen Compensation Act. Therefore, by deducting this amount, the claimants were held entitled to get Rs.20,725/- as compensation. The claimants were also held entitled to interest at the rate of 12% per annum from the date of application till realization. Feeling aggrieved against the judgment of learned Tribunal, the claimants have filed FAO No.975of 1989. The Dabwali Transport F.A.O.No.975 of 1989. -5- Company Private Limited, respondent No.1 filed cross-objections.The New India Assurance Company, respondent No.3 also filed FAO No.641 of 1989. Since these appeals and the cross-objections have arisen from the same judgment and common questions of fact and law are involved, the same are being disposed of by this common judgment. I have heard arguments of both sides and have gone through the record of the case. The New India Assurance Company Ltd. – respondent No.3 before the learned Tribunal has filed the appeal FAO No. 641 of 1989, whereas Dabwali Transport Company Pvt. Limited-respondent No.1 before the Tribunal has filed cross-objections in the appeal preferred by claimants in FAO No. 975 of 1989. The main stress laid down by the learned counsel for the New India Assurance Company Ltd. and Dabwali Transport Company Pvt. Limited is regarding the maintainability of the petition, in view of issue No.3-A. It is submitted that it was submitted before the Tribunal that claim petition under Section 110 (A) of the Motor Vehicles Act, 1939 is not maintainable as the claimants before the Tribunal have been awarded an amount of Rs.46,475/- by the Commissioner under the Workman Compensation Act. It is submitted that the learned Tribunal has held that no application under the Workman Compensation Act was preferred by the claimants and mere deposit of amount under the Workman Compensation Act, does not debar the claimants to file petition under Section 110 (A) of the Motor Vehicles Act, 1939. It is submitted that finding of the Tribunal is against the record. F.A.O.No.975 of 1989. -6- Exhibit RA is the judgment passed by the Commissioner under the Workman Compensation Act on the application filed by the present claimants and that petition was accepted after due contest. So the finding of the learned Tribunal on the face of it is wrong that petitioners have not filed petition under Workman Compensation Act. It is submitted that in the authorities reported as Meena Devi vs. Secretary to Government of India, Ministry of Shipping and Transport 2000 ACJ 448, National Insurance Co. Ltd. vs. Jugal Kishore and others 1988 ACJ 270, Smt. Sarla Devi and others vs. Jhangi Ram and others (1989) 65 Company Cases 654 (All), Pt. Ram Parkash and others vs. Smt. Kanta Suri and another (1987-2) PLR 169, Trading Engineering, New Delhi vs. Nirmala Devi and another 1980 ACJ 230, Subasini Panda and others vs. State of Orissa and others 1984 ACJ 276, Rajnish Chopra vs. Ran Singh and others 1986 ACJ 481, Oriental Fire & Genl. Ins. Co.Ltd. And another vs. Ram Sunder Dubey and others 1982 ACJ 365 and M/s. Kanoria Overseas Corporation vs. Damayanti Vyas and others 1982 ACJ 222 , it has been categorically laid down that once compensation under the Workman Compensation Act is awarded, the petition under Section 110 (A) of the Motor Vehicles Act is not maintainable. The claimants can choose one method of compensation. Admittedly, an amount of Rs.46,475/- has been received by the claimants. In reply to the abovementioned submission, learned counsel for the claimants has supported the judgment of the learned Tribunal. It is submitted that mere deposit of the amount by the respondent under the Workman Compensation Act, does not debar the petitioners to claim F.A.O.No.975 of 1989. -7- amount under Section 110 (A) of the Motor Vehicles Act. To support this contention, learned counsel for the claimants has relied upon the authorities reported as Minor Maheshwatiben and others vs. State of Gujarat and others AIR 1988 Gujarat 68, New India Assurance Co. Ltd. vs. Havaji Prem Kumar and others 1988 ACJ 250 and Sarwan Singh vs. The State of Punjab and others 1985 (2) SLR 76. I have heard both the sides and have gone through the record of the case. So far as the legal position that claimants can claim compensation either under the Workman Compensation Act or under the Motor Vehicles Act is concerned, that has not been disputed during the course of arguments. The net result is that the claimant has to choose one form to claim the compensation. In case, they have filed petition under the Workman Compensation Act, in that case, they are debarred from filing the petition under the Motor Vehicles Act. The said preposition of law is supported by the authorities Meena Devi 's case (supra), National Insurance Co. Ltd.'s case (supra), Smt. Sarla Devi 's case (supra), Pt. Ram Parkash's case (supra), Trading Engineering's case (supra), Subasini Panda's case (supra), Rajnish Chopra 's case (supra), Oriental Fire & Genl. Ins. Co.Ltd. 's case (supra) and M/s. Kanoria Overseas Corporation 's case (supra). It is also not disputed during the course of arguments that in case the compensation is paid under the Workman Compensation Act, without filing petition under the Workman Compensation Act, in that case, the claimants are not debarred from claiming amount under Section 110 (A) of the Motor Vehicles Act and this view is supported by the authorities F.A.O.No.975 of 1989. -8- Minor Maheshwatiben's case (supra), New India Assurance Co. Ltd.'s case (supra) and Sarwan Singh 's case (supra). The dispute in the present lis is whether the claimants have received the amount of Rs.46,475/- by filing petition under the Workman Compensation Act or the respondents before the Tribunal have themselves paid the amount to discharge their liability? The learned Tribunal has given a finding that the said amount was paid by the respondents to discharge their liability and the present petition is maintainable on that account. I have carefully gone through the document Exhibit RA. From the perusal of the same, it is revealed that Executive Engineer RE Division, Ferozepur has assessed the compensation as Rs.45,475/- by its own and that amount was deposited with the Commissioner under the Workman Compensation Act. So, from the perusal of the said document RA, it can be safely inferred that the present claimants have not filed application under the Workman Compensation Act. It was only the Executive Engineer i.e. respondents have assessed the amount and the present claimants have simply withdrawn the said amount at the asking of the respondents. The claim under the Workman Compensation Act was not adjudicated at the instance of the present complainant and as such the finding of the learned Tribunal regarding issue No.3-A does not call for any interference. The appellants cannot derive any benefit from the authorities Meena Devi 's case (supra), National Insurance Co. Ltd.'s case (supra), Smt. Sarla Devi 's case (supra), Pt. Ram Parkash's case (supra), Trading Engineering's case (supra), Subasini Panda's case (supra), Rajnish Chopra 's case (supra), Oriental Fire & Genl. Ins. Co.Ltd. 's case (supra) and M/s. Kanoria Overseas Corporation 's case (supra). In view F.A.O.No.975 of 1989. -9- of the authorities Minor Maheshwatiben's case (supra), New India Assurance Co. Ltd.'s case (supra) and Sarwan Singh 's case (supra) as the amount of Rs.45,475/- has been assessed by the respondents themselves and has not been assessed at the intervention of the claimants. So in view of the above, finding on issue No. 3-A stands affirmed. Now reverting to FAO No. 975 of 1989, the learned Tribunal has taken the income of the deceased as Rs.817/- per month on the basis of wages as work charge tea mate. Learned Tribunal has also taken Rs.197/- per month as income from the land and buffalo. However, the learned Tribunal has assessed the dependency as Rs.350/- per month and yearly dependency has been taken as Rs.4,200/-. The age of deceased has been taken as 26 years and the multiplier of 16 has been applied. Learned Tribunal has not correctly calculated the dependency. The claimants are the widow, minor sons and daughter and parents of the deceased Rajinder Singh. At the most, the learned Tribunal could have deducted 1/3rd of his total income of Rs.1,014/- per month (817/- + 197/-) for maintaining the deceased and as such the dependency should have been assessed as Rs.676/- per month and not Rs.350/- per month, as assessed by the Tribunal. So, I assess the dependency of the claimants as Rs.676/- per month and the yearly dependency comes to Rs.8,112/- say Rs.8,000/-. By applying the multiplier of 16, the claimants are held entitled to claim Rs.1,28,000/-. Out of this amount, an amount of Rs.67,200/- is stated to have been paid to the claimants. The claimants are held entitled to remaining amount of Rs.60,800/- alongwith interest @ 9% per annum from the date of application till payment. The inter se apportionment of the said amount is given as F.A.O.No.975 of 1989. -10- under:- 1. Sukhwinder Kaur - Rs.25,800/- 2. The remaining amount shall be shared by the remaining claimants equally. In view of the above discussion, FAO No. 975 of 1989 stands accepted and the amount of compensation stands enhanced to Rs.1,28,000/- as detailed above. The respondents are directed to make the payment of remaining amount of Rs.60,800/- alongwith interest @ 9% per annum from the date of application till payment as under :- 1. Sukhwinder Kaur - Rs.25,800/- 2. The remaining amount shall be shared by the remaining claimants equally. The primary liability to pay amount is that of Insurance Company. So far as FAO No.641 of 1989 preferred by New India Assurance Company Ltd. and the Cross objections filed by Dabwali Transport Company Pvt. Ltd. in FAO No.975 of 1989 are concerned, those stand declined. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Memo of costs be prepared. Files of the trial Courts be sent back and file of this Court be consigned to the record room after compliance. ( K.C. Puri ) February 4 2008 Judge Jaggi/chug F.A.O.No.975 of 1989. -11-