Mohd. Aleem vs Mohd. Kaleem 2 Others
2022 Latest Caselaw 3382 Tel

            THE HON'BLE SRI JUSTICE M. LAXMAN

             CIVIL MISCELLANEOUS APPEAL No.3987 OF 2004

JUDGMENT:

1. The present appeal is directed against the order dated 27.12.2002

passed in O.P.No.722 of 2000 on the file of the Chairman, Motor

Accident Claims Tribunal (District Judge), Adilabad, wherein and

whereby the claim made by the appellant for grant of compensation of

Rs.3,00,000/- for the injuries sustained by him in the accident that

occurred on 22.5.2000, was partly allowed by granting compensation of

Rs.20,000/- with interest @ 9% per annum from the date of petition till

date of realization and ordered both the respondents No. 1 and 2 to pay

jointly and severally and claim against 3rd respondent/South Central

Railway is dismissed.

2. Aggrieved by the said order, the present appeal is at the instance of

the claimant. The respondents are respondents before the Tribunal.

3. The case of the appellant/claimant is that on 22.05.2000 he was

driving the Auto baring No.AP-1-T-2698 carrying passengers from

Adilabad to Gimma village and when the Auto reached near Gimma

unmanned railway level crossing, all of a sudden without indicating of

arriving the rail engine which was from Adilabad, dashed the auto;

                                      2                                  ML,J
                                                         CMA No.3987 of 2004

resultantly, the appellant received crush injuries and his left leg and right

foot were amputated. Police, Nizamabad, issued FIR No.32 of 2000 for

the offences under sections 304-A, 337 and 338 I.P.C. It is claimed that

the appellant/petitioner was a driver with the first respondent on a

monthly wages of Rs.2,000/-. The accident occurred on account of the

negligence of Railways. As such, the present claim.

4. The first respondent not filed counter. The 2nd

respondent/Insurance Company filed counter denying the accident was

due to rash and negligent driving of the driver of the Auto, age, income

and occupation and licence of the Auto, and accident is result of

negligence of Railways.

5. The 3rd respondent filed counter denying the allegations and

contended that there was no negligence on the part of the Railways, but

the accident was due to the negligence on the part of the driver of the auto

while crossing the unmanned railway level crossing.

6. The Tribunal basing on the above pleadings framed the following issues:

i) Whether the accident occurred on 22.05.2000 due to rash and negligent driving with a vehicle bearing No.AP-1-T-2698 auto by its driver?

ii) Whether the petitioner is entitled to any compensation? If so, to what amount and against which of the respondents?

                                      3                                ML,J
                                                       CMA No.3987 of 2004

      iii) To what relief?

7. The appellant/petitioner in support of his case, he himself was

examined as PW.1 and relied upon Ex.A1 to A7. Respondents have not

adduced any evidence.

8. The primary Court after appreciating the evidence on record, it

apportioned the negligence as 80% and 20% in between the

appellant/petitioner and Railways. However, the Tribunal without

determining the total compensation and arrived that such compensation

can be apportioned in the ratio of apportionment of negligence and

surprisingly fixed the compensation of Rs.20,000/- under "No Fault

Liability" and ordered 1st and 2nd respondents only to pay the said amount

jointly and severally. Aggrieved by the same, the present appeal has been

filed by the appellant/petitioner.

9. The following substantial questions of law fall for consideration:

i) Whether the findings of the Tribunal fixing the compensation of Rs.20,000/- under No Fault Liability, suffers any perversity?

ii) Whether this Court can grant compensation which the appellant/petitioner is entitled under Workmen's Compensation Act? If so, how much?

10. The Tribunal by relying upon another O.P. i.e. O.P. No.720 of

2000 and also appreciating similar evidence, found that the negligence is

in the ratio of 80% on the part of the appellant/petitioner and 20% on the 4 ML,J CMA No.3987 of 2004

part of the Railways. This finding of the Tribunal has not been assailed

by the 3rd respondent which is Railways. The Tribunal having given such

finding of apportionment of negligence, however, without any reasons

the compensation was fixed @ Rs.20,000/- under no fault liabitlity. This

approach of the Tribunal suffers from perversity. It is the case of

apportionment of negligence in between the Railways and the appellant.

When such negligence is attributed, there is no question of awarding of

compensation under No Fault Liability. This approach of the Tribunal ex

facie is not unsustainable and suffers from perversity.

11. In the present case, the injured right foot was amputated and the

evidence also shows that the 1st respondent is the owner of the vehicle

and the appellant was driver and the policy covers the employee of 1st

respondent. Therefore, the appellant shall be treated as an employee of

the 1st respondent and his occupation has to be accepted as a driver.

According to him, he was paid Rs.2,000/- per month. Such amount is

very reasonable keeping in view of the minimum wages at the time of

accident which occurred in the year 2000. Accordingly, the monthly

income of the appellant is fixed at Rs.2,000/-. The annual income comes

to Rs.24,000/-.

                                           5                                  ML,J
                                                              CMA No.3987 of 2004

12. The age of the appellant is also not in dispute. Therefore, the

following compensation is arrived keeping in view of principles of

determination of compensation under the Workmen's Compensation Act.

Rs.2,000/- x 60/100 x 50/100 x 222.71 = Rs.1,33,626/-

13. Now, the question is whether this Court can award compensation

treating the compensation which the appellant is entitled under the

Workmen's Compensation Act. The learned Counsel for the appellant

relied upon the decision of Apex Court in National Insurance Co. Ltd.

Vs. Prembai Patel and others1 where under it was held as follows:

"The High Court, in the impugned judgment, had held that if the legal representatives of the deceased employee approach Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under section 166 of the Act, the liability of the Insurance Company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant Insurance Company to pay the entire amount of compensation to claimants. As shown above, the insurance policy taken by the owner contained a clause that it was apolicy for "Act liability" only. This being the nature of policy the liability of appellant would be restricted to that arising under Workmen's Compensation Act. The judgment of the High Court, therefore, needs to be modified accordingly."

14. It is also apt to refer Section 167 of Motor Vehicles Act, which

reads as follows:

Section 167 in The Motor Vehicle Act, 1988 gives option to the claimants to seek compensation either under workers'

2005 CJ 1323 6 ML,J CMA No.3987 of 2004

compensation Act, 1923 or The Motor Vehicle Act, 1988. They cannot file a claim petition under the provision of both the Acts.

A reading of above provision as well as the decision of the Apex

Court, when a person is entitled for compensation under the Workmen's

Compensation Act, he can also move the application before the Motor

Vehicle Tribunal. When such application is filed, the liability of the

insurer is restricted to the compensation which the claimant is entitled

under Workmen's Compensation Act. Any compensation fixed by the

Tribunal over and above the amount entitled by the claimant under the

Workmen's Compensation Act, it is the owner who has to pay. Such rest

of the amount is not liable to pay by the Insurance Company.

15. The liability under the Workmen's Compensation Act is based on

"No Fault Theory" in the case of fatal accident and permanent

disablement. In the present case, the injured suffered right foot

amputation, which is scheduled injury as per the Workmen's

Compensation Act. The percentage of loss of earning is provided as 50%

as contained under schedule-I, part-II clause 22. The compensation has

to be determined on the basis of principles contained under the

Workmen's Compensation Act, which is already determined herein

before.

                                     7                                 ML,J
                                                       CMA No.3987 of 2004

16. In view of such provision and law laid down by the Apex Court,

the compensation which is liable to pay by the owner and Insurance

Company i.e. first and second respondents under the Workmen's

Compensation Act, has to be paid even in the claim before the Motor

Vehicles Act Tribunal. If any compensation over and above, the owner

alone is liable to pay.

17. The negligence determined as against Railways is 20%, which

finding has not been assailed in the present appeal. Therefore, whatever

the compensation is determined by this Court with reference to the

entitlement of the appellant under the Workmen's Compensation Act, has

to be shared in the ratio of 80% by the first and second respondent who

are the owner and insurer of the Auto, and 20% by the railways.

Accordingly, the appeal is allowed in part.

18. In the result, the appeal is allowed in part and the compensation

granted by the Tribunal has been increased from Rs.20,000/- to

Rs.1,33,626/- (Rs. One lakh, thirty three thousand, six hundred and

twenty six only) with interest @ 7.5% per annum on the enhanced

compensation from the date of petition till the date of deposit. The 1st

and 2nd respondents jointly and severally are liable to pay 80% of the said

compensation and 20% shall be paid by the 3rd respondent i.e. Railways.

                                      8                                ML,J
                                                       CMA No.3987 of 2004

The amount shall be paid within a period of two months from the date of

receipt of copy of this order, on such deposit, the claimant is entitled to

withdraw the entire amount. In the circumstances, there is no order as

to costs.

19. As a sequel, pending miscellaneous applications, if any, shall stand

closed.

_______________ M. LAXMAN, J DATE: 05.07.2022 BDR