BABY Vs. SANA KHAN

JUDGEMENT

(1.) THE claimants, in this appeal, preferred under section 173 of the Motor Vehicles Act, 1988, are not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal. They seek enhancement. The amount determined by the Tribunal is said to have been paid to the appellants -claimants. No cross appeal or cross objections have been filed. The respondent New India Insurance Company has thus agreed to abide by the award. Even though no cross -objections have been preferred to this appeal, learned counsel appearing for the Insurance Company has argued that this was a case where in fact no compensation could be awarded at all and he submitted that the question of enhancement would not arise. According to him, claimants are heirs of the driver of the ill fated Tempo. This tempo suffered an accident on account of it being not kept in proper running condition. The question raised is that the claimants could not claim any compensation under the Motor Vehicles Act 1988 though they could have sought their remedy under the Workmen's Compensation Act, 1923. It is this issue which is also being examined in this appeal. Before doing so, facts in brief be noticed. One Sona Khan, respondent No. 1 is the owner of the Tempo No. CPJ 2975. Mustkim Khan whose heirs are the appellants herein, was the driver. This tempo was on its away from Jora to Morena. At about 9.30 a.m. on 5th December, 1991 this tempo turned turtle. It fell on Mustkim Khan. He suffered several injuries and died before medical aid could be given to him.

(2.) THE Motor Accident Claims Tribunal (for short 'the Tribunal) has recorded the following findings. (i) That Mustkim Khan died in an accident involving Tempo bearing No. CPJ 2975 on 5.12.1991 (ii) That the accident did take place on account of the negligence of the owner in not keeping the Tempo in Road worthy condition (iii) That the appellants/claimants are the heirs of Mustkim Khan. (iv) That on account of the failure of the (Gulli) tie and rod fitted in the steering wheel the accident took place. (v) the owner of the vehicle was remiss in keeping the tempo in road worthy condition and on account of this lapse on the part of the owner, heirs of the driver are entitled to compensation. (vi) The income of the driver was fixed at Rs. 1,000/ - per month. It was, however, recorded that he was contributing only 50 percent of the above amount to the family. The multiplier of 14 was applied and compensation was assessed at 84,000/ -. The award is silent about loss of consortium.

(3.) THE question which has been posed by the learned counsel for the Insurance Company and which has been given serious consideration by us, is that whether in these circumstances, the heirs can claim compensation under the Motor Vehicles Act. The contention thus raised is that the heirs may have a remedy under the Workmens' Compensation Act 1923 but they have none under the Motor Vehicles Act. The argument raised is that the Act of 1988 pre -supposes the use of vehicle and an accident involving negligence by the use of vehicle. The act of negligence, according to the learned counsel, should form the cause of the accident; as there was no negligence on the part of the driver, therefore, the claimants are not entitled to any compensation. The element of wrongful act which is said to be a basis of tortuous act, according to the counsel, is absent and, therefore, the heirs are not entitled to any compensation.