K K JAIN Vs. MASROOR ANWAR

JUDGEMENT

(1.) The order in this appeal shall also dispose of Miscellaneous Appeal No. 49 of 1981 (The Oriental Fire and General Insurance Company Limited, New Delhi. v. Smt. Masroor Anwar and others) and the cross-objection filed in Miscellaneous Appeal No. 49 of 1981.

(2.) One Anwar Hussain was employed as technician in Bhilai Steel Plant. On 31-5-1976 at 11.00 A.M., he was proceeding on a bicycle towards Central Laboratory within the precinct of the plant. At the Same time, Dumper No.5 driven by Shri Rajendran and owned by Bhilai Construction Company of which Vinay Engineering Company appears to be a unit, was proceeding in the same direction. The two dashed knocking down the cyclist. viz., Anwar Hussain, who was immediately removed to the plant hospital where he was treated for his injuries for quite sometime before he succumbed to those injuries on 21-7-1976 in the hospital itself. The parents of the deceased then moved the Commissioner, Workmen's Compensation for award of compensation resulting from the death of "worker" Anwar Hussain and mentioned in the petition that Anwar Hussain has left his widow and children. The employer paid Rs. 10,000/- as ex-gratia payment to the widow of the deceased. Some amount was also deposited with the Commissioner, Workmen's Compensation. The Commissioner issued notices to the claimants. The claimants, however, did not appear before the authority and, therefore, the matter before the authority rested at that. At the same time, the widow and daughters of Anwar Hussain with whom joined Anwar Hussain's father Ibrahim Hussain and mother Smt. Aziza Begum, filed a claim before Motor Accidents Claims Tribunal- for payment of compensation arising out of death of Anwar Hussain. His father Ibrahim Hussain has since expired. The claimants alleged that the dumper was being driven rashly and negligently by Rajendran and dashed against the cycle causing fatal injuries to Anwar Hussain. The driver as also the owner were, therefore said to be liable to pay compensation to the dependents of the deceased Anwar Hussain. It was alleged that at the time of death, Anwar Hussain was 29 years of age and would have lived long. He would have risen to the post of Foreman before he could retire on attaining the age of 58 years. In view of his salary and the possibility of rise in the salary during his service career, a sum of Rs. 4,08,440/- was claimed under different heads. Since the dumper was insured with the Oriental Fire and General Insurance Company (appellant in Miscellaneous Appeal No.49 of 1981), the Insurance Company was also made liable for compensation.

(3.) Separate set of written statements were filed. The stand on behalf of the driver did the owner of the dumper had been that it is the deceased who emerged from a side road on the cycle driving it negligently and unmindful of the dumper. The dumper was moving on the street at a very moderate speed and the cyclist, viz., Anwar Hussain, dashed against the dumper. Negligence of the Rajendran in driving dumper was completely denied and instead the boot is said to be on the other leg. Alternatively, the plea of contributory negligence has also been raised. Dumper is said to be not a goods vehicle and, therefore, is alleged to be out of the purview of the Motor Vehicles Act. Yet another plea raised is that since the claimants have chosen to prefer a claim before the Commissioner, Workmen's Compensation, under the Workmen's Compensation Act, their claim before the Accidents Claims Tribunal under Section 110-A is not maintainable. The amount of compensation claimed is said to be highly excessive. It is said that the amount of Rs.10,000/- obtained by the claimants as ex gratia payment from deceased Anwar Hussain's employer should be set off against the amount that may be assessed as compensation by the Claims Tribunal. The Insurance Company is said to be jointly liable to all the amount of compensation which the Tribunal may adjudge as payable by the driver and the owner of the vehicle.