© BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.NO. |^<-\ OF VISiOii ES'...i,ii^i APPELLANT rt:|38«- RESBONDENTS c- • £^' Wy /w /./w *~<? .^•' ^^. %•' e?' . / ^ :^,1. S.E.C.L., Bishrampur, Through Chief General Manager, S.E.C.L.Bishrampur, Tahsil Suraj'pur, District Sarguja (C.G.), 2. Sub-area Manager, S.E.C.L. Bishram- pur, Tahsil Surajpur, District Sarguja (Chhattisgarh), 3,.C.M,D., S.E.C.L., Seepat Road, Bilaspur, District Bilaspur (C.G.) ^. Director Techaical, S.E.C.L., Bilaspur, District Bilaspur (Chhattisgarh). VERSUS :- 1. Smt. Bharti Devi, widow ofLate Satish ^. '-- ---~~ - -"' "~~" ~* ""l > Kumar Smgh, aged about 28 years, 2. Harsh Kumar Smgfa, son ofLate Satish Kumar Singh, aged about 10 years (minor), 3. Anish Kumar Singh, son ofLate Satish, aged about 8 years (minor), respondent no. 2 and 3 minor,through their natural giiardian mother respondent no. 1 Bharti Devi, A. Neelmani Singh, son ofLate Ramgulab Singh, aged about 57 years, ^5: Smt. Gayatri Devi, wife ofLilmani Singh, aged about 53 years, Ali by Caste Kshatriya, resident ofVillage Bishrampur, P.S. Bishrampur, Tah. Suraj- Pur, District Sarguja (Chhattisgarh). Contd..2.. - : 2 :- ^ AFPEAL UNDER SECTIQN l-fa OF MOTOR VEHICLES ACT 1988 v iBefi !lli*'"-%.^^ o"- c9 HIGH COURT OF CHHATTISGARH AT BILASPUR h 1-A DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Nlishra Misceilaneous Appeal No.1144 of 2004 S.E.C.L., Bishrampur and others versus Smt. Bharti Devi and others ORDER FOR CONSIDERATION S.d//- Prashant Kamar MisSira Judge Hon'ble Shri I.IVI. Quddusi, J.: 3 ^ ~ Sd/- I.M. Quddusi Judge Postfor 15 -04-2011 Sd<- Prashant Kumar Mishra Judge ^^,: "?S;iiSKai® 9 -.'s^ HIGH^OURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice l.hfl. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra IVIiscellaneous Appeal No.1144 of 2004 Appellants versus Respondents S.E.C.L., Bishrampurand others Smt. Bharti Devi and others -^ Present: Shri H.B.Agrawal, Senior Advocate with Smt. Meera Jaiswal, counsel for the appellants. Shri Prashant Jayaswal, Senior Advocate with Shri Shailendra Sharma, counsel for the respondents. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act ORDER (Passed on ^ April, 201 1) <Per <Prasliant 'Kinnar Misfira, ].. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act') has been preferred by the owner of the vehicle, who also happens to be the employer of the deceased. On account of death of the deceased Satish Kumar, a claim petition under Section 166 of the Act was preferred by his legal heirs (widow, two minor sons and parents) and the Claims Tribunal has awarded compensatifin ofRs.15,68,212/- in theirfavour. ^ 2. Brief facts of the case-7 as stated in the claim petition and the memo of appeal, are that the deceased Satish Kumar, son of Neelmani was employed with the appellants/SECL as a dumper [driver and was working in the Pokhariya Mines, Bishrampur. On -^. -^ 2 7-12-2002, at about 2:30 P.M., the dumper (haulpak) sunk in Mine No.9, Pokhariya, as a result of which, the deceased received grievous injuries and subsequently succumbed to death. The claimants, being the widow, two minor sons and parents of the deceased, preferred the subject claim petition claiming compensation of Rs.66,32,264/- under different heads on the submission inter alia that the deceasedwas earning monthly salary of Rs.11,480.88 Paisa and on account of his death, the claimants have lost the only earning member ofthe family and, thus, they have suffered loss of dependency income. 3. The appellants/SECL, in their reply, stated that the dumper (haulpak) is not a motor vehicle, therefore, it is not registered with the registering authority under the Act and was not plied on public road.therefore, the claim petition is not maintainable and the appellants are not liable to pay compensation. It was also stated that the accident occurred due to the negligence of the deceased himself as he got imbalanced and due to fear could not control the vehicle and jumped from the dumper (haulpak). It was further stated by the appellants that respondent No.1 Smt. Bharti Devi has been granted compassionate appointment and she is getting all the benefits due to the death of her husband. It was also stated by the ^ appellants th'at the subject vehiclewas plying in mines area,which is a private and prohibited are^and, thus, the provisions of the Act are r notapplicable. 2s- :,l.;:il?!" ^:«s.« 3 4. The Claims Tribunal negatived all the defences raised by the appellants and has awarded compensation of Rs.15,68,212/- in favour of the claimants. 5. Reiterating the defences, as were raised before the Claims Tribunal, learned Seniqr Advocate appearing for the appellants has argued that the instant claim petition was not maintainable for the fact that mines area being a prohibited area is not a public road, and the subject vehicle, not being a motor vehicle, the claim petition was not maintainable. It has been further argued that the widow of the deceased has been granted compassionate appointment, therefore, the amount of compensation assessed is excessive and further that the 'deceased died on account of his own negligence, therefore, for this reason also, the claim petition should not have been aliowed. 6. This Court shall first examine the question as to whether the deceased was himself responsible for causing the accident. The claimants have examined AW-2 Wipro, son of Trinath, who is an eye-witness as he was present at the place of accident. He has been extensively cross-examined by the appellants. In paragraph 12 of his cross-examination, he has denied in no uncertain terms that the deceased jumped out of the vehicle out of panic. In paragraph 13 ofthe cross-examination, he has further explained the manner in which the accident took place to state that when the deceased had reached to the place where the soil was to be extracted, the dumper (haulpak) turned turtle and We accident took place. He has denied the suggestion that since the deceased jumped out of the vehicle, the haulpak turned turtle of its own. He -.:^ •itg •^K i^ c 4 has also stated that he used to attend duties along with the deceased. The appellants/non-claimants' witnesses have confirmed that AW-2 Wipro is their employee and is working as dozer operator in the colliery. NAW-2 Sanjay Kumar Das has also admitted that though the employer has deposited the amount of compensation before the Commissioner for Workmen's Compensation, the said amount is still in deposit and has not been withdrawn by the claimants. NAW-3 T.K.Lahari has also made statement in paragraph 13 of the cross-examination that the deceased died because he was crushed under the dumper (haulpak) when it turned turtle. From the above discussion about the evidence adduced by the parties with respect to the manner in which the accident has taken place, it would be apparent that the haulpak turned turtle and the deceased died as he was crushed under the hauipak. There is absolutely no evidence to the effect that the deceased himself was negligent in driving the haulpak and was responsible for causing the accident. Thus, the finding recorded by the Claims Tribunal that the deceased was not responsible for the accident is born out from the evidence and is not perverse. 7. The question as to whether a dumper (haulpak) is a motor vehicle or not has been dealt with by the Hon'ble Supreme Court in Bolani Ores Ltd. vs. Stete of Orissa, AIR 1975 SC 17. In this case, the Hon'ble Supreme^Court has observed in paragraph 24 thus: "24. The question would then arise, are dumpers, rockers and tractairs suitable or fit for use on roads? It is not denied, that these vehicles are not pneumatic wheels ^7' ^ and can be moved about from place to place with mechanical power. The word "vehicle" itself connotes that it is a contrivance which moves. A vehicle which merely moves from one place to another need not necessarily be a motor vehicle within the meaning of S. 2 (18) of the Act. It "may move on iron flats made into a chain such as a caterpillar vehicle or a military tank. Both move from one place to another but are not suitable for use on roads. It is not tha.t they cannot move on the roads but that they are not adapted, made fit or suitable for use on roads. They would, if used, dig and damage the roads. It is contended that the dumpers or rockers are very heavy and though they can move on roads they would damage the roads and, therefore, they are not suitable for use on roads. To substantiate this proposition the appellants have produced before us certain notifications issued by the State of Orissa under which vehicles beyond a certain laden weight are prohibited from plying on the roads. It was rightly pointed out by the learned Advocate for the State of Orissa that there are only some of the roads on which vehicles heavier than what is indicated in the notification cannot be permitted. But that is not to say that all vehicles which exceed a particular weight are not adapted for use upon roads and are, therefore, not motor vehicles. A dumper in the Mysore case according to the manufacturer's own specifications is suitable for roads and is described thus: "The dumper will carry: bulk goods, building materials, mining products, agricultural and forestry products, earth, stones, bricks, concrete, mortar, etc. The structure 1s of simple design and easy to handle. Tipping is performed by releasing the locking device retaining the tipping body. 'fe^ ^ The dumper requires no more than a few seconds for the emptying of its tipping body and gives no trouble to the driver when being operated on uphill or downhill roads, with its load unbalanced, or when the load refuses to slide out easily. x x x x Quickness and ease characterize the operation of the dumper and the clumsy manoeurving can be dispensed with. In narrow lanes or rough roads where turning would be impossible or undesirable, the seat is turnedand will face driving direction." 8. Before making the above observation, the Hon'ble Supreme Couri: considered several English decisions, wherein definition of motor vehicle in the Road Traffic Act (English Act) has been distinguished and having regard to the scheme ofthe MotorVehicles Act, 1939, it was ultimately held that dumpersand rockers are motor vehicles. This decision in Bolani Ores Ltd. vs.State of Orissa (supra) was relied and explained by the Hon'ble Supreme Court in its later decision in IVI/s Central Coal Fields Ltd. vs. State of Orissa and others, fidR 1992 SC 1371 and Union of India and others, etc. etc. vs. Chowgule & Co. Pvt. Ltd., etc. etc., AIR 1992 SC 1376. The following has been held by the Hon'ble Supreme Court in paragraph 8 of the judgment in M/s Central Coal Fields Ltd. vs. State of Orissa and others (supra): "8. It would be appropriate now to mention that some documentary material was sent to us by the appellants by means of an affidavit after we had reserved judgment. That material is suggestive of the fact that Dumpers in —^some States are granted permission to runon pubic 'roads at a speed not exceeding 16 Kms. per hour and on a ^s?!l^Si ^ ^ bridges and culverts at a speed not exceeding 8 kms. per hour. From this it is suggested that they have a minimum weight and safe laden weight fixed on some principles. Pictures of various types of Dumpers have also been sent to us which indicate prominently one factor that these Dumpers run on tyrfes, in marked contrast to chain plates like cater pillers or military tanks. By the use of rubber tyres it is evident that they have been adapted for use on roads, which means they are suitable for being used on public roads. The mere fact that they are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the Dumpers or Rockers as suggested are heavy and cannot more on the roads without damaging them is not to say that they are not suitable for use on roads. The word 'adapted' in the provision was read as 'suitable' in Bolani Ores case (AIR 1975 SC 17) by interpretation on the strength of the language in Entry 57, List II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. Thus on the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motorvehicles per se, as held in Bolani Ores case, were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence entitled to a regulatory and compensatory tax.--(Exemptions claimable apart). The appellants, therefore, in our view, have no case for grant of any relief in these appeals." >A 9. Relying on the above judgments of the Hon'ble Supreme Court, a Division Bench of the Madhya Pradesh High Court has also held in National Insurance Co. Ltd. vs. Sahiba Khatun and others, 2000 ACJ 168 that dumper is a motor vehicle. In this case, the Madhya Pradesh High Court has also held that since members of public, on permission, have access in the mines area though the entry is restricted, the said area would be a public place and owner of the vehicle is responsible for payment of compensation on account of accident in that area. We are in full agreement with the view taken by the Madhya Pradesh High Court in the said case. 10. In view of the above, the arguments raised by learned Senior Advocate for the appellants that dumper (haulpak) is not a motor vehicle and the mines area, being a restricted area, is not a public road are rejected. 11. Contention of learned Senior Advocate for the appellants regarding jurisdiction ofthe Motor Accidents Claims Tribunal in view of the amount having been deposited before the Commissioner for Workmen's Compensation is noticed only to be rejected because from the statements of the appellants' witnesses themselves it is clear that the claimants have not withdrawn the amount deposited by the employer before the Commissioner for Workmen's Compensation nor they have moved any application seeking compensation under the Workmen's Compensation Act, 1923. 12. This Court shall now deal with the argument that the amount '; of salary, which the widow of the deceased is receiving on account ;of employment having been granted on compassionate ground, il '•-"• ..i lll-.ff ^ should have been deducted while assessing compensation. In this regard, it is to be seen that none of the witnesses examined from either side have stated as to what is the salary of the widow of the deceased, which she is receiving on account of compassionate appointment. However, this fact has been admitted by the claimant Smt. Bharti Devi in paragraph 17 of her statement that she has been granted compassionate appointment on the post of Category-1 Majdoor, therefore, the amount of salary, which she is receiving, has to be deducted while assessing the loss of dependency income. The Claims Tribunal has considered this fact of compassionate appointment, but has not deducted the salary, which the widow is receiving and has only refused to award compensation under the heads of loss of consortium, loss of love and affectionand loss of estate. In our considered opinion, the methodology adopted by the Claims Tribunal while assessing compensation is not in accordance with law. In Bhakra Beas Management Board vs. Kanta Agganwal (Smt) and others, (2008) 11 SCC 366, the Hon'ble Supreme Court has held that the amount of salary by way of compassionate appointment has to be considered while assessing loss of dependency income. The following has been laid down in paragraph 13 of the judgment: "Learned counsel for the respondent supported the judgment and additionally submitted that appeal of Respondent 1 is pending. In normal course, when two appeals are directed against the common judgment, both the appeals should be heard by the same Bench of the High Court. But we find that the iHigh Court had lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly •» ^. ~vs "^^' ^Ay ••;£;;;:;$?'"'' v 10 considered while fixing the compensation. It is pointed out that Respondent 1 was getting Rs.4700 p.m. and a residence has been provided to her and actually the compassionate appointment was giv.en immediately after the accident." However, since there is nothing on record as to what amount of salary the widow is receiving, it is difficult for us to reassess the actual loss of dependency income and for awarding 'just compensation', for which the claimants are entitled, the matter is required to be remitted back to the Claims Tribunal. 13. In the result, while affirming the impugned award on all other aspects, the matter is remitted back to the Claims Tribunal only for the purpose of reassessing the compensation after taking evidence with regard to the amount of salary, which the widow of the deceased was offered at the time of compassionate appointment so that the same may be considered while assessing loss 'of dependency income and reassessing compensation thereafter. It is also directed that the claimants would be entitled to amount under other heads like loss of consortium, loss of love and affection and loss of estate and the reassessment is required to be done only under the head loss of dependency income. The miscellaneous appeal, thus,stands allowed in part. There shall be no order as to costs. -—-sa^ I.M. Quddusi Judge imnnTrMirrT'tiwasuffi Sd/t- Prashant Ksimar Mislrra Judge Gopal