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United India Fire and General Insurance Co. Ltd. (Now United India Insurance Co. Ltd.) Vs. Pithani Venkanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in[1987]62CompCas330(AP)
ActsMotor Vehicles Act, 1939 - Sections 95(1), 110A and 110AA; Workmen's Compensation Act, 1923
AppellantUnited India Fire and General Insurance Co. Ltd. (Now United India Insurance Co. Ltd.)
RespondentPithani Venkanna and ors.
Appellant AdvocateK. Ram Gopal, Adv.
Respondent AdvocateM.S.K. Sastry, Adv.
Excerpt:
.....statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just..........act', for a sum of rs. 25,000. the tribunal below awarded a sum of rs. 18,000 against which the insurance company is resisting the claim and has filed this appeal. 2. it is contended for the appellant that the respondents preferred their claims before the commissioner for workmen's compensation, eluru, and, therefore, by operation of section 110-aa of the act, the petition under section 110-a is not maintainable. it is also further contended that the negligence on the part of the driver as a result of which the accident took place has not been proved. proof of negligence is a condition precedent for awarding damages. in its absence, the claim cannot be allowed and compensation cannot be paid. the lower tribunal did not record any finding in this regard. therefore, the award is.....
Judgment:

K. Ramaswamy, J.

1. This appeal raises important questions of law. Before elaboration thereof, it is necessary to state the facts in brief. The driver of the vehicle, APP 7342, one P. Subbarao, while driving the vehicle hit against a standing tree at Madiki, on March 7, 1978, at 5.30 p.m. and died. His dependence laid the claim under section 110-A of the Motor Vehicles Act, 1939, for short, 'the Act', for a sum of Rs. 25,000. The Tribunal below awarded a sum of Rs. 18,000 against which the insurance company is resisting the claim and has filed this appeal.

2. It is contended for the appellant that the respondents preferred their claims before the Commissioner for Workmen's Compensation, Eluru, and, therefore, by operation of section 110-AA of the Act, the petition under section 110-A is not maintainable. It is also further contended that the negligence on the part of the driver as a result of which the accident took place has not been proved. Proof of negligence is a condition precedent for awarding damages. in its absence, the claim cannot be allowed and compensation cannot be paid. The lower Tribunal did not record any finding in this regard. Therefore, the award is unsustainable. Costs ought not to have been awarded and interest ought to have been awarded only from the date of award but not from the date of the petition. The latter two contentions lack substance because the Tribunal exercised its discretion and on facts it is not unwarranted. Therefore, I do not find any merit on these two points and the same are rejected.

3. But the main question is whether the petition under section 110-A of the Act is maintainable Section 110-AA starts with a non obstinate clause and states that:

'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 so under the Workmen's Compensation Act, 1923, the person entitled to compensation may, without prejudice to the provisions of Chapter VIIA, claim such compensation under either of those Acts but not under both.'

4. Since both the statutes are remedial statutes, an enablement is provided to the dependents to claim under either of the Acts compensation for the death of, or bodily injury to, any person giving rise to a claim for compensation. In this case, under exhibit B-1, the respondents issued a notice, marking a copy to the appellant, requestion the Commissioner for Workmen's Compensation to award compensation. The matter did not rest there. The Commissioner issued a notice calling upon the owner and under exhibit B-4, the owner has given a reply stating that the risk is covered under the insurance policy by payment of additional premium and, therefore, the dependents may be directed to pursue their remedy under the Act and the Insurance company may be called upon to pay the compensation. By reason thereof, the Commissioner by reply, exhibit B-5, informed the dependents of these facts and they did not pursue the remedy under Act 8 of 1923. Therefore, the mere fact that notice was given cannot conclude that the claim was laid and being pursued. No doubt, if the claim is laid before the Commissioner for Workmen's Compensation and is being pursued, by operation of section 110-AA, the legal representatives are precluded for pursuing their remedy under the Act, because they elected to pursue the remedy under Act 8 of 1923. When choice is given by the Act to the claimants and the remedy under the Act being more beneficial, it is being pursued by them. So it cannot be said that the Tribunal lacked jurisdiction to award compensation. Accordingly, I reject this contention and hold that the petition is maintainable.

5. The second contention, equally important, is that unless there is proof of negligence on the part of the driver and the resultant death or injury to person is established, the claim cannot be made against the insurance company. It is equally devoid of any substance. The claim is based on contract. Here is a case of the driver of the vehicle involved in the accident, viz., the vehicle hit the tree and the lorry overturned and he died as a result thereof. The risk is admittedly covered by the policy. No doubt, normally, under the common law, when a liability is sought to be fastened against the owner for the tortuous acts of his driver, proof of negligence on the latter's part is insisted upon. But that situation does not arise here. Exhibit B-3 (para 10) covers the risk of death of the driver or cleaner of the vehicle and five workmen and additional premium was paid. Thereby, the owner sough to mitigate his liability. Section 110 of the Act postulates adjudication of a claim for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of ....motor vehicles.... or both.'

6. The jurisdiction conferred under the Act obviously includes claims for compensation in respect of accidents involving the death of the driver of the vehicle concerned during the course of the user of the motor vehicle. This is clear when we read section 95(1)(b)(i) which covers the liability which may be incurred by the insured in respect of the death of, or bodily injury to, 'any person'....caused by or arising out of the use of the vehicle in a public place. The word 'any person: obviously includes the driver when the insurance covers such risk as well.

7. Section 110-A(1) empowers the legal representatives of the deceased to lay their claim before the Tribunal where death resulted from the accident. Section 110-B gives power to the Tribunal to determine the compensation which appears to the Tribunal to be just. The problem could be angulated from the perspective of contractual relation. Pursuant to the contract of insurance, the insured-owner can lay claim for compensation and seek payment thereof, to the legal representatives. The company undoubtedly cannot resist the same. When the owner unquestionably does that under the contract and when the vehicle is used and it is involved in an accident in a public place and death of his driver resulted out of the user of the vehicle, the insurance company is equally liable to pay compensation at the instance of the legal representatives of the deceased driver as well.

8. From the foregoing conspectus, the principle that sprouts is this: When the policy covers the risk in relation of the death of the driver of the vehicle and when it was involved in an accident while it was used in a public place resulting in the death of the driver, the contract of insurance enjoins the insurance company to compensation in thereof and the need to prove negligence of the self-same driver is obviated by necessary implication by the contract. Tribunal in this regard does not militate against the legality of the award. Therefore, the appeal merits no consideration. It is accordingly dismissed with costs.


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