SURESH Vs. VASANTHA SHETTY

JUDGEMENT

(1.) Appeal is filed challenging the order of the MACT rejecting appellant's claim for compensation for the injuries sustained by him in a road accident for the reason that he as driver of the vehicle caused the accident on account of his negligence. It is the view of the MACT that tortfeasor is not entitled to compensation and the insurer is not liable to indemnify the insured against such claims. We have heard counsel appearing for the appellant and standing counsel appearing for the insurance company. We have also gone through the insurance policy which is comprehensive (B) policy covering the driver of the insured specifically for liability under the Workmen's Compensation act, 1923. Counsel for the appellant relied on the Full Bench decision of this Court is NATIONAL INSURANCE CO. LTD. V. MALATHI C SALIAN,2003 3 KIT 460 and contended that even if appellant was negligent and caused the accident, he is still entitled compensation for the injuries sustained by him in the accident. Standing counsel appearing for the insurance company on the other hand contended that appellant's claim under Section 163A should be considered under Section 167 of the M.V. Act. According to him, insurance company has a defence under the Workmen's compensation act which entitles immunity to if it the accident was on account of negligence of the workman. Even though there is general statement in the Full bench decision above referred that injured person can get compensation under Section 163A of the M.V Act, even if accident was on account of his negligence, we do not find any such proposition laid down by the Supreme Court in the decision referred to by the Full Bench. In fact there is an observation in the judgment of the Full Bench itself that insurance company had not adduced any evidence to prove that there was negligence on the part of the deceased. We further notice that Full Bench has not considered what would have been the consequence, had the insurance company proved negligence on the part of the claimant with resulted in the accident. The question that has to be decided is a very important one which has far-reaching consequences because if the claim is allowed in favour of tortfeasor then the same will act as an incentive for wrongdoers. In fact protection claimed by the claimant is under Section 163A of Act introduced which dispenses with proof of negligence for granting compensation to victims of accident cases. The provision is certainly supplementary in nature and to protect cases where accident is caused not on account of any negligence or proof of negligence of any person involved. Even though most of motor accidents happen probably on account of human error. Large number of accidents take place without any contributory negligence on the part of any driver and those are accidents pure and simple. We are of the view that purpose of Section 163A is to protect victims of accidents which are not caused on account of negligence of any person. However, we are afraid the purpose of Section 163A is not to protect tortfeasors which will virtually be an encouragement for rash and negligent driving. In this particular case, admittedly the appellant was an employee of the first respondent who was the registered owner of the jeep and the claim is against the insurer which insured the very same jeep. In other words, the claim is not as third party, but as an employee of the insured who is specifically covered by the insurance policy. Therefore in our view the claim though filed before the MACT under Section 163A read with Section 167 of the M.V. Act, ought to have been considered with reference to the statutory provisions under which employer is liable to the claimant and the liability of the insurer is only under Section 147 of the Act, which under the proviso provides for coverage of employees of the insured. Section 3(1) of the Workmen's Compensation Act providing for liability of the employer to the workman is as follows: