NEW INDIA ASSURANCE COMPANY LTD Vs. JAGDISH

JUDGEMENT

(1.) I. The two appeals The two appeals in F.A.O. No. 759 of 1989 and F.A.O. No. 1001/1989 arise out of the same award, the former at the instance of the insurer and the latter at the instance of the claimant for enhancement. II. Entitlement of a workman/driver responsible for accident

(2.) THE petition for compensation for injuries had been filed before the Motor Accident Claims Tribunal by a driver of a truck, who had been injured in a collision with another truck, whose driver was responsible for causing the accident. THE claimant had not merely made the owner of the other truck and the insurer as party but had also made his own employer/owner and the insurer as parties to the claim petition. THE insurer of the vehicle, which the claimant was driving is the appellant before this Court. Although the claimant had contended that the driver of the other truck namely Raghbir Singh was responsible for the accident, the Tribunal found that the claimant himself was responsible. THE insurance company pleaded that if the claimant had been the tort feasor himself, the liability, if at all against the employer-owner, could be only in claim before the Workmen's Compensation Commissioner under the Workmen's Compensation Act and the petition could not have been successfully prosecuted against the insurer. THE Tribunal found that in view of Section 167 of the Motor Vehicles Act enabling a person to file a case either under the Motor Vehicles Act or under the Workmen's Compensation Act, the petition filed before the Tribunal was justified and decided to assess the compensation on the basis of evidence and awarded a compensation of Rs. 25,000/- against the insurer of the vehicle, which he was himself driving. III. Choice of forum under Section 167 arises only if claims are possible in a given situation under both MV & WC Acts

(3.) ON the other hand, the same accident that resulted by his negligent act may not give rise to a claim for compensation under the Motor Vehicles Act. A claimant, who is a workman cannot successfully prosecute a claim for his own tortious act before the MACT under the "Motor Vehicles Act. The principle of providing compensation under the Act is still on the basis of fault which provides the philosophical foundation of a tort law liability, but secured through statutory prescription under MV Act. A workman, who is a driver, will fail in an action under the Motor Vehicles Act if he were to make the allegation that the accident took place by his own fault. Here Section 167 cannot come into play, for the Workman's remedy was only under the Workmen's Compensation Act and not under the Motor Vehicles Act. The exercise of option also, therefore, does not arise. IV. Claims under Section 163-A MV Act for one's own neglect does not normally lie, unless policy conditions make it possible