RAMJI PORTE Vs. PREMABAI PATEL

JUDGEMENT

(1.) This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the award dated 9-2-1996, passed in Claim Case No. 20/94, by IInd Additional Motor Accidents Claims Tribunal, Bilaspur.

(2.) The appellants are the legal representatives of the deceased Sunder Singh, aged about 35 years, who was employed as a driver on monthly wages of Rs. 1500/- on truck No. CIL 5248 owned by respondent No. 1 and insured with respondent No. 2. The appellants filed an application under Section 166 of the Act to claim compensation Rs. 5,40,000.00 for the death of Sunder Singh caused in motor accident on 5-11-93, on the averments that the accident was caused due to negligence of the owner of the truck as the truck was 15 years old and was not kept in roadworthy condition. Though, the truck had a fitness certificate, but the deceased complained about its condition as on road it used to go of and on out of order. On the fateful day of accident the truck after loading the fire wood of about 80 quintals beyond its capacity was coming from Chiran. Because of the heavy load first one of its tyres got punctured and thereafter near Saraiya barrier its arm bolt got broken as a result of which the vehicle did not remain in control, it turned turtle resulting in instantaneous death of the deceased driver. The claim was contested by the respondents.The respondent No. 1 contended that truck was in good road worthy condition which at the relevant time was loaded with 80 quintals of fire wood only while loading capacity of the truck was 10 quintals. The deceased used to consume liquor. On the day of occurrence also the deceased was driving the truck after consuming the liquor and, therefore, could not control the steering wheel as a result of which the truck turtled down. The accident was caused due to the own fault and negligence of the deceased, hence the claimants are not entitled to claim any compensation from the employer/owner of the truck. The respondent No. 2. the insurer denied its liability to pay compensation. The claimants examined AW 1 Ramji, the father of the deceased, who deposed that he had also worked as a helper in the truck, the truck was an old truck of 10-15 years, which was not kept in roadworthy condition. A.W. 2 Jawar, a co-employee on the truck, who at the relevant time was sitting by the side of the driver, stated that near Kewchi mal tyre of the truck got punctured which was got repaired. At that time the deceased and he took their meals. Thereafter, they proceeded, when the truck reached near Sarai barrier the arm bolt of the truck got broken as a result of which the steering wheel did not remain in control of the driver, because of that the truck turned turtle. In this he fell down on the seat of the driver while Sunder Singh was crushed. He denied the suggestion that Sunder Singh used to consume liquor. He also denied that after taking liquor Sunder Singh was driving the truck. The respondents did not lead any evidence in rebuttal about the condition of the truck and the pleas raised in defence. The Tribunal after appreciation of evidence dismissed the claim holding that the deceased himself was responsible for the accident.

(3.) Section 167 of the Act, corresponding to Section 110-AA of the repealed Motor Vehicles Act, 1939 (for short 'the Act of 1939') gives an option to the person entitled to claim compensation to choose and claim compensation either under Chapter XII of the Act, corresponding to Chapter IV of the Act of 1939, or under the provisions of Workmens Compensation Act, 1923 (W.C.Act). What is prohibited is that the person entitled to claim compensation cannot claim the compensation under both the Acts. It is well settled that if the person entitled elects to claim compensation against a tort feaser under Chapter XII of the Act, he takes the burden upon himself to establish the negligence of the owner of the vehicle. On establishment of negligence, the Tribunal has to determine compensation in accordance with the provisions of the Act for the death or injury caused to a workman in motor accident by the use of motor vehicle wherein norms of W.C. Act in computing the compensation cannot be applied and such claimant would be entitled for 'just' compensation under common law. See, Suresh Chandra v. State of U.P., (1995) 6 SCC 623, Oriental Insurance Co.Limited v. Sudha Devi, 1997 (1) MPLJ 362, K.K. Jain v. Smt. Massor Anwar, AIR 1990 MP 87, Divisional Engineers MPEB v. Mantobai, 1988 JLJ 625 : 1989 ACJ 498, Mangilal v. Pramod, 1988 JLJ 121 : 1998 ACJ 307, Madulova Satyanarayana v. Bodirador Lokeshwari, AIR 1991 AP 123, National Insurance Co.Limited v. Gonti Eliza David, 1984 ACJ 8 (Bom), Oriental Fire and General Insurance Co.Limited v. Ram Sunder Dubey, 1982 ACJ 365 (All) : AIR 1982 All 198.