VED PRAKASH GARG Vs. PREMI DEVI

JUDGEMENT

(1.) In these three appeals by special leave, a short but ticklish question arises for consideration. It runs as under :

(2.) These two appeals arise out of a motor accident wherein the owner of a motor truck, appellant in these appeals, had entrusted the said truck for driving to one Pritam Singh and had employed one Hem Raj to be a cleaner attached to the said truck. The said truck met with an accident on 15th February, 1992 near Village Pulwahai on Kumarsain Dhamla Road in the State of Himachal Pradesh. In the said accident driver Pritam Singh and cleaner Hem Raj died on spot. It is the case of the appellant, owner of the truck, that having come to know about the accident on 16th February 1992 he immediately informed the Branch Manager of respondent No. 9-insurance company about the accident. According to the appellant, respondent No. 9-insurance company had insured the appellant comprehensively against all the risks arising out of the use of the said motor vehicle. That still the insurance company though bound to pay the heirs of the deceased-employees appropriate compen-sation as per the insurance cover, did not carry out the said obligation.

(3.) The two claim petitions came to be filed by the heirs and legal representatives of deceased driver and cleaner under the Compensation Act before the Commissioner for Workmen's Compensation, Rajgarh District, Sirmur, Himachal Pradesh. The said applications were moved presumably by exercising option available under Section 167 of the Motor Vehicles Act which lays down that 'notwithstanding anything contained in the Workmen's Compensation Act, 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. Thus these two applications were in substitution and in place of otherwise legally permissible claims before the Motor Accidents Claims Tribunal functioning under the Motor Vehicles Act. In the said claim applications, the claimants joined the appellant-employer as well as respondent No. 9-insurance company as respondents. The Workmen's Commissioner after hearing the parties concerned computed the compensation available to the claimant-dependents of the deceased employees. So far as the claim put forward by the heirs of the deceased driver was concerned the Commissioner awarded a sum of Rs. 88,968/- as compensation. But as the compensation due was not paid either by the appellant-employer or by the insurance company as and when it fell due the Commissioner awarded a penalty of Rs. 41,984/- with interest at the rate of 6% per annum from the date of the accident till the date of payment under Section 4A(3)(a) and (b) of the Compensation Act. The entire amount of Rs. 88,968/- with penalty of Rs. 41,984/- and interest thereon was held payable by the insurance company to the claimants jointly and severally with the appellant-employer. The said amount was made payable by respondent No. 9-insurance company on the basis that the insurance company had insured the appellant against his liability to meet the claims for compensation for the death of employees dying in harness giving rise to proceedings against the insured employer under the Compensation Act. Similarly the Commissioner awarded a sum of Rs. 88,548/- to the claimants being legal representatives of the deceased cleaner. In addition to the said amount, penalty of Rs. 44,274/- with interest from the date of the accident till the date of payment was also made payable by respondent No. 9-insurance company.