HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No. 364 OF 2004 JUDGMENT: This Appeal under Section 173 of the Motor Vehicles Act, 1988, is directed against the order dated 31.10.2000 passed by the Motor Accident Claims Tribunal cum II Additional District Judge, West Godavari, Eluru (for short ‘the Tribunal’) in OP No. 47 of 1996 filed by the claimants claiming compensation of Rs. 1,00,000/- for the death of one Sudarsi Ravi Kumar in a motor accident that occurred on 08.06.1993 when the deceased going to attend one of his friend’s marriage at Kovvur on his Scooter bearing No. AIL 3902 met with an accident and died at Duddukuru Village on eastern side where culvert is under construction and the said culvert called as Konda Vagu tumu. Respondents 1 to 5 filed their counter affidavits denying all the averments made in the petition. 2. The Tribunal having held that the accident occurred due to the pit dig by the contractor for the purpose of widening kondavagu thumu, therefore, the contractor and the Insurance Company are liable to pay damages. As far as the claim of compensation is concerned, the Tribunal observed that the deceased was working in the gold shop and earning Rs.600/- per month at the time of accident and his age was only 22 years at the time of accident and due to the death of the deceased, the claimants lost their dependency and they lost their only son, therefore, awarded a sum of Rs. 25,000/- each to both the claimants with interest at 6% per annum from the date of petition till the date of deposit into Court. Aggrieved by the same, the United India Insurance Company filed the present Civil Miscellaneous Appeal. 3. The learned counsel appearing for the appellant- Insurance Company submits that the Court below ought to have appreciated that the case on hand cannot be tried before Motor Vehicles Accident Claims Tribunal in the absence of owner of the vehicle. He also submits that the policy covers only the workman who was engaged by the Contractor and not the third party and in this particular case, the deceased was a third party. He further submits that the Court below erred in entertaining the petition as it does not have jurisdiction and at best the claimant may take recourse of civil jurisdiction and not by filing the claim petition and that the judgment of the Court below suffers from various infirmities and it has not considered the matter in proper perspective. 4. Heard the learned counsel appearing for the appellant-Insurance Company and also perused the entire material made available on record. 5. As seen from the record, it is no doubt true that while the deceased was going to attend one of his friend’s marriage at Kovvur on his scooter bearing No. AIL 3902, met with an accident and died at Duddukuru Village on eastern side where culvert called as Konda Vagu Tumu is under construction. The deceased was aged about 22 years at the time of accident and he was working in a jewellery shop at Vijayawada and earning an amount of Rs. 600/- per month. It is also no doubt true that the death of the deceased was only due to non providing required safety precautions with proper caution boards at the work spot on either side at Mile Stone KM 350 Calcutta by the authorities. As per Clause No. 11, 9, 1 of the agreement of the contract entered into by the second respondent with the third respondent in respect of the widening Konda Vagu Thumu at Duddukuru Village clearly reveals that the Contractor himself undertake to indemnify the employer, all losses and claims in respect of injuries or damage to any person or materials or physical damage to any property whatsoever which may arise out of or in consequence of execution and maintenance of works and against all claims proceedings damages, costs, charges and expenses etc whatsoever. Therefore, the court below observed that the contractor or the insurer of the works are liable to pay compensation if any that may be fixed by the court. For that the deceased ought to have been a workman so as to invoke the provisions of the workmen’s compensation Act and the policy should cover under the Motor Vehicles Act. Therefore, the deceased has to file a Civil Suit for not taking precautionary measures by keeping the board showing that the ‘work is under progress’ by the Contractor. Hence, this Civil Miscellaneous Appeal filed by the Insurance Company is liable to be allowed. 6. Accordingly, the Civil Miscellaneous Appeal filed by the Insurance Company is allowed. However, claimants are at liberty to file a Civil Suit. The Court below is directed not to make any objections on the plea of limitation since the claimants are availing the remedy under Section 14 of the Limitation Act. The Court below is also directed to exclude the period of limitation for filing the suit. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J Date : 30.9.2010 KA