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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
First Appeal No.334 of 2017
Western Coalfields Limited, Umrer (on R.A.),
through Deputy Chief Personal Manager,
Umred Project, Tahsil Umred, District Nagpur.
(Original non-applicant no.3) .... Appellant.
-Versus-
1] Krishnaji Ganpatrao Khapre,
(Original Petitioner No.1.) [All on R.A.]
aged about 73 years, Occ.-Pensioner
(Father of deceased)
2] Smt. Satyabhama w/o Krishnaji Khapre,
(Original Petitioner No.2.)
Aged 61 years, Occ.- Household,
(Mother of deceased),
No. 1 and 2 both R/o.-Plot No.20,
Road No.12-A, Bajrang Nagar, Nagpur.
3] Smt. Sarika wd/o Chandrakant Kahpare,
(Original non-applicant no.1.)
Aged about 35 years, Occ.-Service,
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4] Ku. Urja d/o Chandrakant Khapre,
Aged about 16 years, being minor
represented through natural guardian mother
non-applicant no.1,
Both r/o.-Quarter No.B/9, Coal Estate,
W.C.L. Head Quarter, Nagpur.
(Original Non-Applicant No.2.) .... Respondents.
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Mrs. Pushpalata Ranjan Adv. for appellant.
Shri H.N. Bhondge, Adv. for resp. nos. 1 and 2.
Shri M.A. Randive, Adv. for resp. nos. 3 and 4.
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Coram : N.W. Sambre, J.
th
Dated : 24
April, 2017.
J U D G M E N T
This Appeal is by the original respondent no.3 to the Claim Petition preferred under the provisions of Section 166 of the Motor Vehicles Act, 1988, for award of compensation on account of death of Chandrakant Krishnarao Khapre in motor vehicular accident took place on 11-02-2004 with the appellant.
2] The appellant Western Coalfields Limited a Government of India Company is the owner of Haulpak Dumper Sr.No.HP9291, C.I.L. No.D-6251 which is used for transportation of mine coal.
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3] The present respondent no.1 is the father of deceased
Chandrakant, respondent no. 2 is the mother and respondent nos. 3 and 4 are the wife and daughter of the deceased. 4] The happening of the accident in question cannot be disputed as the appellant voluntarily deposited an amount of Rs. 4,11,900/- in the Labour Court pursuant to the claim under Section 4-A of the Workmen's Compensation Act, 1923. The said proceedings were initiated by respondent nos. 1 and 2 under Section 8 of the said Act being W.C.A. No.19 of 2004. Whereby, an amount of Rs.1,11,900/- was ordered to be disbursed, whereas balance amount of Rs. 3,00,000/- was ordered to be kept in fixed deposit. 5] Deceased Chandrakant was aged about 31 years at the time of his death and was working as a Senior Under Manager with Western Coalfields Limited posted at Umred and drawing salary of Rs.25,000/- per month. The claimants claimed compensation of Rs.36,10,000/- based on the age of incumbent i.e. deceased Chandrakant.
6] The issue of accident is not disputed by the vehicle owner i.e the present appellant. The Tribunal, thereafter, considering the claim as was put forth awarded ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 ::: 4 fa 334.17 judg,.odt compensation of Rs.26,53,372/- in favour of the respondents/claimants against the appellant with interest at the rate of 7.5% per annum. As such this appeal is filed by the appellant.
7] The learned Counsel for the appellant raised an issue as regards the identity of the vehicle not being a "motor vehicle" within the meaning of the Motor Vehicles Act and the Rules framed thereunder on the ground that the vehicle was not registered as "motor vehicle" within the meaning of the Motor Vehicles Act and, hence, the provisions of the Motor Vehicles Act are not applicable to the vehicle in question. According to the learned Counsel for the appellant, in the said background, the claim for compensation under the provisions of the Motor Vehicles Act is not maintainable and sought rejection thereof.
8] Per contra, the learned Counsel for the respondents supported the claim and submits that just because the vehicle was not registered as a "motor vehicle" the appellant cannot claim to absolve the appellant of that liability of payment of compensation, when admittedly there is no denial of ownership of vehicle and accident thereof. ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 :::
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9] According to the learned Counsel for the appellant, the
issue is raised before this Court for the first time and not agitated before the learned Tribunal and as the respondents have estopped from raising such issue, the appellant sought appeal before this Court.
10] Considered the rival submissions of the parties. Section 2(28) of the Motor Vehicles Act defines "Motor Vehicle", which reads as under :-
"(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon road whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimeters;]".
11] It is not in dispute that the Haulpak Dumper is owned by the appellant herein which is used for transporting the mine materials on an road built for the same where the accident took place. The said dumper is mechanically ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 ::: 6 fa 334.17 judg,.odt propelled vehicle and has an adaptability for use on road. In my opinion, in the backdrop of the provisions of Section 2(28) of the said Act, the dumper which is mechanically propelled vehicle, has rightly termed as a "motor vehicle". Its non- registration or the non-adaptability to carry passengers are not material for the purpose of covering it within the meaning of definition "motor vehicle". 12] The dumpers are the motor vehicles used for transporting the goods on the roads. Just because they are used in the premises of the appellant-owner or used in closed premises, or permission of the Authorities was needed to move them from one place to another same would be of no consequence, in the absence of pleadings that these vehicles were of a special type adapted for use only in a factory or in any other enclosed premises make it an exception that it is not a motor vehicle within the meaning of the Motor Vehicles Act, 1988. As it is mechanically propelled having minimum four tyres, heavy duty engine and having transporting capacity of mine materials, just because the Haulpak Dumpers are the vehicles of special type cannot be excluded from the claims under the Motor Vehicles Act. An appropriate ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 ::: 7 fa 334.17 judg,.odt support has been drawn from the judgment of the Hon'ble apex Court in the matter of Union of India vs. Chowgule and Co. Pvt. Ltd., reported in AIR 1992 SC 1376. Just because the vehicle is not registered as a "motor vehicle" the same was not mandatory, would absolve the appellant of liability. 13] In the present case, the accident had taken place within the premises of the present appellant where there is a restricted access to the public. Just because there is a limited, restricted or regulated entry to the public including that of the employees, it does not absolve the appellant of that liability to pay the compensation because the accident took place within their controlled areas. The said place has termed to be a "public place" and the provisions of the Motor Vehicles Act are very much attracted.
14] As such the very maintainability of the proceedings under the Motor Vehicles Act is upheld by overruling the observations of the Hon'ble Apex Court. In support of the claim put forth before the Tribunal, original petitioner Krishnarao and witness (PW-2) Swapankumar were examined at Exhibits-37 and 50 respectively. The other relevant papers such as investigation papers and salary slips ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 ::: 8 fa 334.17 judg,.odt were also produced.
15] The appellant moved an application for dismissal of the proceedings on the count that the remedy under the Workmen's Compensation Act, 1923 was sought by the claimants and as such the present Claim Petition is not maintainable. After deciding First Appeal No.277 of 2005 on 13-03-2015 by this Court, the Court below proceeded with the proceedings by framing the issues as the said objection was overruled on the count that the present respondent nos. 1 and 2 were not the claimants and the proceedings were very much maintainable at their behest.
16] It is an admitted position on record that the appellant in the Claim Petition under the Motor Vehicles Act was not party before the Commissioner for Workmen's Compensation. The said proceedings were filed by petitioner nos. 1 and 2 who are the parents of deceased Chandrakant while respondent nos.1 and 2 therein are the widow and daughter of the deceased and without denying the issue of accident the appellant voluntarily deposited an amount of Rs. 4,11,900/- in the Labour Court. Since the option to choose an remedy is available to the original claimants, they ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 ::: 9 fa 334.17 judg,.odt have rightly chosen the option of filing the Claim Petition. 17] It is then to be noted that an offence punishable under Section 304A of the Indian Penal Code was registered against the driver of the dumper in which he was acquitted. However, the documentary evidence i.e. the investigation papers which were relied upon by the Tribunal for informing the happening of the accident and death of Chandrakant, the Tribunal then proceeded to analyze the claim based on the monthly income and age and rightly proceeded to award the compensation.
18] As a consequence of above, no illegality or perversity could be noticed which prompts interference in the appellate jurisdiction. The appeal as such fails stands dismissed.
JUDGE Deshmukh ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 00:33:54 :::