ORIENTAL INSURANCE COMPANY LTD Vs. MOST BAIDEHI DEVI

JUDGEMENT

(1.) THE present appeal has been filed against the award of the Court of 2nd Additional District Judge -cum -2nd Additional Motor Vehicles Accident Claims Tribunal Judge, Purnea. By the impugned order the learned Presiding Officer of the Tribunal directed the Oriental Insurance Company Ltd., the insurer of the vehicle which met the accident to make payment of Rs. 1,25,000/ - as compensation of the claims. The amount of compensation of Rs. 25,000/ - already paid was to be adjusted from the amount of award. The Oriental Insurance Company Ltd. felt aggrieved against the award and filed this appeal.

(2.) A brief history of the case is that one driver Diwakar Jha had met an accident while driving the vehicle and had died leaving behind his widow and children who were his daughter and son. The vehicle was held by Ashok Singh of village Raikpur within the P.S. Phargama in the district of Araria and the vehicle bearing registration No. BR -11 -0327 was insured with M/s. Oriental Insurance Company. The accident took place at Parora Chowk in the district of Purnea on 29.2.1992 at about 9 A.M. A case in this regard was also registered at Kritya Nagar P.S. case no. 238 of 1992 under Section 270 and 338/304 (A) of the Indian Penal Code. It also appears that the claim was not settled by the employer and the present claim petition was filed before the claims tribunal Purnea and the matter was transferred to the Court of 2nd Additional District Judge, who was acting as Motor Vehicle Accident Claims Tribunal under the Act. The claimants have asserted that at the relevant time when the victim died he was under the employment of the owner of the vehicle and he died due to negligence of the driver of the vehicle. So they were entitled to compensastion under the Motor Vehicles Act, 1988. The Insurance Company contested the claim and also asserted, inter alia, that the claim petition was not maintainable and as such the claimants were not entitled to receive compensation in any other case than under the Workmen's Compensation Act. However, the learned lower court did not accept this contention and passed award in favour of the claimants. The Claimants had also stated in the claim application that the deceased at the time of death was about 40 years old and he was on daily engagement getting Rs. 40/ - per day as remuneration. However, the learned court accepted the age of the deceased to be 50 years at the time of death and after making calculation on the basis of monthly remuneration he came to the finding that the claimants were entitled to a sum of Rs. 1,25,000/ - and accordingly, the order was passed.

(3.) LEARNED counsel for the appellant submitted that so far as the application of the provisions of the Motor Vehicles Act regarding the compensation is concerned, it does not apply in the present case, because according to the claim application itself the deceased himself was driving the vehicle and the accident was caused due to his own negligence. It was contended that so far as the other passengers of the vehicle are concerned they made claim against the owner and insurer of the vehicle on the ground of their death occurring due to the negligence on the part of the driver and their claims were rightly entertained by the court. The deceased in this case himself met with an accident due to his own negligence. Therefore his heirs and legal representatives and dependants are not entitled to claim compensation under the Motor Vehicles Act. They are entitled to receive the claim under the scheme of the Workmen's Compensation Act only. Therefore, it has been submitted that the award of the lower court is not fit to be upheld. However, the learned counsel for the respondents claimants' submitted that there is provision under Section 167 of the M.V. Act in which a person entitled under the workmen's compensation Act can also lay his claim under the scheme of the Motor Vehicles Act and such claim can be granted. But such a claim can be made only by a person who is entitled under the Workmen's Compensation Act as an employee of the owner of the vehicle and also under the claim of the Motor Vehicle Act not as a person driving the vehicle which met with the accident. So far as the deceased in this case is concerned, he was not only an employee of the owner of the vehicle, rather, he himself was the driver of the vehicle and the accident took place due to his own negligence and, therefore, Section 167 of the Act is not applicable in this case. However, it was also pointed out that in the evidence some witnesses have stated that the accident took place on account of negligence of another vehicle and some witnesses have stated that the accident took place due to explosion at the place, but such kind of evidence becomes inadmissible in view of the fact that these are contradictory to the pleading. It was clearly stated in the claim application that the accident was caused due to rash and negligent driving of the driver, that is, the deceased in this case.