Bombay High Court
Western Coal Fields Ltd. Umrer, ... vs Krishnaji S/O Ganpatrao Khapre ... on 24 April, 2017
Bench: N.W. Sambre
1 fa 334.17 judg,.odt
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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2 fa 334.17 judg,.odt
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.
3 fa 334.17 judg,.odt
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
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.
5 fa 334.17 judg,.odt
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
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
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
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
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
