MACApp./227/2015
2021 Latest Caselaw 3578 Gua

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GAHC010122932015




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : MACApp./227/2015

              1.     Smti Susila Devi
               Son of Late Ram Parvesh Mahato
               2.    Miss Anjali Kumari
               Daughter of Late Ram Parvesh Mahato
               3.    Miss Rinki Kumari
               Daughter of Late Ram Parvesh Mahato
               4.    Sri Prabhat Kumar
               Son of Late Ram Parvesh Mahato

               5.    Sri Alok Kumar


               Son of Late Ram Parvesh Mahato


               All are residents of Vill. Nahanbalthi, P.O. & P.S. Sahebganj, Bihar and
               at present residing at Biharipatty, C/O Sri Lalbabu Saha, Sonai Road,
               P.O. & P.S. Silchar, Dist. Cachar, Assam (Appellant Nos. 2 to 5 being
               minors are represented by their mother, appellant No. 1)


                                                            ......Claimants/Appellants.


                     -Versus-
                                                              Page No.# 2/10


1.    Sri Prakash Gupta

 Son of Sri S.S. Gupta


 C/O M/S Triveni Filling Station


 Sonai Road, P.O. & P.S. Silchar,


 Dist. Cachar, Assam.


 2.     Sri Raj Kumar Das


 Son of Sri Prahlad Das


 C/O Sri Swapan Kr. Nath


 Near Rangirkhari T.O.P.


 Sonai Road, P.O. & P.S. Silchar,


 Dist. Cachar, Assam.


 3.     The New India Assurance Co. Ltd.


 Represented by the Divisional Manager,


 The New India Assurance Co. Ltd.


 Club Road, Capital Travels Building,


 P.O. Silchar-1, Dist. Cachar, Assam.

                                        ......Opposite Parties/Respondents.

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Before HON'BLE MRS. JUSTICE MALASRI NANDI

Advocate for the Appellant: Mr. M. Talukdar,

Advocate for the Respondents: Mr. R. Goswami,

Date of Hearing : 30.11.2021.

Date of Judgment              :                   22.12.2021.


                         JUDGMENT AND ORDER

1. This appeal is directed against the Judgment and Award dated 29.07.2015 passed by learned Member MACT Cachar, Silchar in favour of the appellant/claimant in MAC Case No. 205/2012 challenging the method adopted by the Tribunal for computation of compensation under Workmen's Compensation Act though the claimant has filed her claim case under Motor Vehicles Act.

2. The only point raised by learned counsel for the appellant as well as respondent/Insurance Company is that when the claim of the appellant/claimant is under Motor Vehicles Act, 1988, the Tribunal should not have computed compensation under Workmen's Compensation Act, 1923 and the option is open to the claimant only under Section 167 of the Motor vehicles Act and not to the discretion of the Tribunal to adopt under which of the Act compensation be computed.

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3. In the case in hand, the accident, involvement of Oil Tanker bearing Reg. No. AS-01/N-2665 and death of the deceased Ram Parvesh Mahato are not in dispute. The only issue to be discussed whether the legal representatives of the deceased lay claim under Section 166 of M.V. Act i.e., under fault liability principle and whether the Tribunal under the M.V. Act was empowered to adjudicate such claim.

4. Before proceeding with the discussion it is felt necessary to narrate what Section 167 of the M.V. Act describes:-

Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act') provides option regarding claims for compensation in certain cases. Section 167 reads as under:-

"167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."

5. The appellant has preferred the claim case under Section 166 of the Motor Vehicles Act, 1988 for death of her husband Ram Parvesh Mahato stating inter-alia that on 15.07.2010 husband of the claimant was proceeding Saiha from Silchar by travelling in the Page No.# 5/10

aforesaid Oil Tanker in course of his employment and when the tanker reached at Khamrang village of Mizoram, it fell down into a deep gorge. In consequence thereof, the husband of the deceased died on the spot.

6. Be that as it may, claim petition was filed under Section 166 of the Motor Vehicles Act and the Tribunal also treated the claim as one under the said provisions. However the Tribunal basing on the facts that the deceased who was the employee of the owner of the Oil Tanker died during course of his employment and computed the compensation under Workmen's Compensation Act as shown by the Tribunal in Para 9,11, and 12 of the Judgment which reads as follows:-

"9. However the claimant deposed that deceased died at the time of proceeding to Saiha in the aforesaid tanker. To support exhibited not only Accident Information Report vide Ext1 but also exhibited police final report vide Ext2. I have gone through the contents of both the documents. As per those Ext1 and 2 the tanker was carrying full loaded of Diesel(HSD) 12000 liters and while the vehicle reached at Khamrang area at about 2:10 PM another vehicle was coming from opposite direction and driver of the tanker to give pass the vehicle placed at the side of the road but due to softness of the soil of the side of the road the tanker fell down into a 300 feet deep gorge and in consequence the deceased being the occupant of the tanker who was escorting the load of diesel got fatal injury and died.

11. The claim application submitted before this Tribunal for which to assess the compensation I have discretion to adopt Page No.# 6/10

assessment of compensation procedure laid down by the Supreme Court in respect of application under Section 166 MV Act or may adopt procedure laid down in WC Act because to get compensation under Section 166 MV Act fault of driver is required to establish.

12. As the accident was occurred due to softness of the soil of the side of the road so police submitted report to the effect that no rash and negligent driving caused the accident. In that situation the claimant also unable to bring material before the Tribunal to establish the rash and negligent driving of the Tanker. Hence in this situation for the sake of assessment of compensation I am adopting the spirit of the WC Act."

7. As I have already stated that Section 167 of the Motor Vehicles Act, 1988 provides options regarding claims for compensation in certain cases. The Parliament has in its wisdom enacted Section 167 which laid down that the claimant has a right to claim compensation under either of both the Acts, namely Motor Vehicles Act and Workmen's Compensation Act, 1923. It would be open to him to claim the compensation under one of the two Acts and not under both. If the victim or his legal representative, therefore, prefers to claim the compensation under the Motor Vehicles Act, he or they, as the case may be, will be debarred from claiming the compensation under the Workmens' Compensation Act, or if he or they claim under Workmens' Compensation Act, he or they will be debarred from claiming the compensation under the Motor Vehicles Act. In the instant case, the claimants have filed the claim for compensation before Motor Accident Claims Tribunal for death of Ram Parvesh Mahato. Thus, the language of Section Page No.# 7/10

167 of the Act makes it clear that it is open for the claimants either to claim the compensation before the Motor Accident Claims Tribunal under the provisions of the Motor Vehicles Act, 1988 or before the Workmen's Compensation Commissioner under the provisions of the Workmen's Compensation Act, 1923. Thus, the option lies to the claimant either to claim compensation under the provisions of the Motor Vehicles Act or under the provisions of the Workmen's Compensation Act, 1923 but not under both the Acts.

8. It is contended by learned counsel for the appellant/ claimant that the claim is filed under Motor Vehicles Act. The Tribunal was not right in determining the compensation under the provisions of the Workmen's Compensation Act, 1923. The claim under Section 166(1) under the principle of fault liability the findings of the Tribunal as per Judgment is that the accident was occurred not due to rash and negligent driving by the driver of the alleged tanker but due to the softness of the soil. As such the provision of Motor Vehicle Act under Section 166 is not attracted herein this case.

9. Learned counsel for the appellant/claimant also argued that the plea of limited liability under the Workmen's Compensation Act was neither raised nor any evidence was led in support thereof by the appellant before the Claims Tribunal. The deceased has died because of an accident arising out of the motor vehicle and, therefore, the claimants are entitled to get compensation under the provisions of Motor Vehicles Act.

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10. Hon'ble Supreme Court in the case of Rita Devi Vs. New India Assurance Co. Ltd. reported in 2000 ACJ 810 (SC) observed that the deceased was employed to drive an auto- rickshaw for ferrying passenger on hire. On the fateful day, the auto-rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for journey. As to what happened on that day is not known. It was only on the next day the police was able to recover the body of the deceased but the auto-rickshaw in question was never traced out. The owner of the auto-rickshaw claimed compensation from the Insurance Company for the loss of auto-rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Apex Court held that the heirs of the deceased would be entitled to compensation.

11. Hence, an employee due to whose fault the accident might have taken place might have approached the Motor Vehicles Claims Tribunal under Section 166 of the M.V. Act without knowing the legal position and on that ground, the Tribunal need not necessarily relegate him to the authority under the Workmen's Compensation Act. It can itself award compensation under the provisions of Workmen's Compensation Act as long as he has not chosen the other Forum to claim compensation.

12 In Helen C. Rebello's case reported in 1999 SCC (Cri) 197 the Supreme Court held that while interpreting a beneficial Page No.# 9/10

legislation the view that subserves the object of the legislation should be accepted in the following terms-

"Interpretation of such beneficial legislation is also well

settled. Whenever there be two possible interpretations in such statute then one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have been given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions which applied the principle of no deduction of the life insurance amount should be accepted and the other set which interpreted to deduct, is to be rejected."

13. From the foregoing discussion, it is seen that the principle underlying the judgment wherein the Tribunal constituted under the Motor Vehicles Act cannot award compensation under Workmen's Compensation Act unless it is pleaded and proved that the accident has taken place due to rash and negligent driving of the vehicle by its driver, the liability of the Insurance Company to pay compensation does not arise has been watered down in the subsequent decisions of the Hon'ble Supreme Court in Rita Devi's case (supra) clearly held that under Section 167 of M.V. Act the Tribunal constituted under M.V. Act is fully competent to adjudicate the claims even under Workmen's Compensation Act.

14. In substance, the law on the point in issue is that when the driver of the vehicle is not responsible for the accident and the Page No.# 10/10

claim petition is filed by him or his legal representative under Section 166 of the Motor Vehicles Act by choosing the forum under Motor Vehicles Act, then the Tribunal cannot grant him compensation under Section 166 of the Motor Vehicles Act (on fault liability principle) but it can award compensation under Workmen's Compensation Act, since in a claim under Workmen's Compensation Act there is no need to prove the fault or negligence on the part of the owner or some other.

15. When the above ratio is applied to the facts of the present case, since accident was occurred not due to the fault of the driver or the deceased himself or fault liability principle, it is obvious that the claimants are not entitled to compensation under the Motor Vehicle Act and the Tribunal cannot grant compensation under Section 166 of the Motor Vehicles Act. However, it can determine and award compensation under Workmen's Compensation Act. Therefore the learned Tribunal in the instant case was right in determining the compensation under Workmen's Compensation Act.

16. In the result, the appeal is dismissed. There is no order as to cost.

17. LCR be returned accordingly.

JUDGE

Comparing Assistant