K.L. Shrivastava, J.
1. This order shall also govern the disposal of Misc. Appeals Nos. 228 of 1977 and 229 of 1977 which also arise out of the motor accident dated 15-12-1973.
2. It is not in dispute that the accident truck bearing registration No. MPF 7535 owned by Devidas (since deceased) and insured with the appellant against third party risk, was being driven by Madanlal when at about 7 a.m. on 15-12-1973 on the Sanwer Road, at the Railway level crossing between Railway Station Manglia and Laxmibai Nagar, it had collided against the running train. The accident had resulted in three deaths. The legal representatives of the deceased filed three separate claim petitions and the learned Member of the Motor Accident Claims Tribunal, Indore, by its separate awards dated 6-7-1977 granted Rs. 11,000/- as compensation to each set of claimants. The particulars of the claim cases and the connected appeals are as under:
Sr. Name of deceased Claim Case No. Misc. Appeal No.
1. Kersingh 38 of 1974 228 of 1977
2. Radha 33 of 1974 229 of 1977
3. Nandu 30 of 1974 230 of 1977
3. According to the claimants, the deceased were working as labourers in the truck. At the level crossing the truck driver did not bring the truck to a halt despite having seen the passing train. He was driving the truck negligently and at fast speed and accident was the result of the same.
4. The owner of the truck and its driver filed a joint written statement. According to it, the deceased persons were in the truck in their capacity as labourers. The truck was being driven at a low speed and with caution. The accident occurred due to the failure of the brakes.
5. The insurer contested the claim on various grounds. In addition to the plea of sudden failure of the brakes of the truck, it was stated that the insured having transferred the truck, prior to the accident, the policy of Insurance had lapsed. The truck driver had no driving licence. The liability if any for the accident is of the Railway Department.
6. At the conclusion of the trial, the learned Member of the Claims Tribunal held that it has not been proved that on the date of the accident the truck had been transferred or that the truck driver had no driving licence. It further held that it has not been proved that there was sudden failure of brakes, as alleged. Findings that the accident was due to negligence of the truck driver, he, the insured vicariously and the insurer under the terms of the policy were all held liable to the claimants.
7. The point for consideration is whether the appeals deserve to be allowed.
8. Shri Bahel learned counsel for the appellant contended that the testimony of the claimants' witness Lalsingh is that the truck was of the ownership of Ramdeo. The learned Tribunal has rightly held that on 10-12-1973. the truck was duly registered in the name of Devidas and in absence of any other material, the said version of a labourer without disclosure of its basis, was not sufficient to warrant a finding that there had been transfer of the truck in favour of Ramdeo. In the circumstances of the case, the greater probability is that Ramdeo had been working in the truck for and on behalf of the truck owner Devidas. For the same reason the appellant's further contention that the deceased were not being carried in the truck by reason of or in pursuance of contract of employment, but were gratuitious passengers, has also to be negatived.
9. The appellant's learned counsel's next contention based on Section 96(2)(b)(ii), of the Motor Vehicles Act is that the truck driver had no driving licence and, therefore, the appellant cannot be held liable under the policy for payment of compensation.
10. In the decision in National Insurance Company Ltd.'s case AIR 1934 MP 24 it has been held that the burden lies upon the Insurance Company to establish that the person driving the vehicle was not properly licensed and unless this is done, the Insurer cannot avoid its liability to pay compensation to the victims of an accident.
11. In the instant case, the Insurer except giving notice for production of the licence, has done nothing to discharge the burden. Shrikrishna as N.A.I. examined by the Insurer is silent on the question of truck being without driving licence. No attempt was made to examine the truck driver or to examine any one from the office of the R.T.O. Indore in order to find out whether the truck driver was licensed for truck driving. The presumption is that persons act in obedience to the law of the land. Therefore, on the material on record, it has to be held that the conclusion arrived at by the learned Tribunal on the issue as licence is proper.
12. The contention of Shri Bahel regarding liability being that of Railway Department is, on the face of the evidence on record, devoid of merit. The truck had not been brought to a halt despite the passing train. As to the circumstances in which the liability of the Railway Department arises the decision in Shankar-rao's case AIR 1959 MP 128 may usefully be perused.
13. Shri Bahel learned Counsel for the appellant relying on the decision in Husainbhai Ahmad Bhai Memon's case 1984 ACJ 701) lastly contended that each of the deceased persons was a 'workman' within the meaning of the Workmen's Compensation Act, 1923 therefore, under the terms of the policy of Insurance, the liability of the Insurer according to Schedule 4 of the Act, does not extend beyond Rs. 7,000/- as the monthly income of each of the deceased was only Rs. 180/-.
14. The contention of the learned Counsel for the claimants is that as laid down in National Insurance Co. Ltd.'s case 1984 ACJ 8, when the claim has been laid before the Tribunal, the liability has to be determined in accordance with the provisions of the Act. In the aforesaid decision it has been held that when the claimants take upon themselves the bnrden of provingnegligence, their claim cannot be restricted to the amount according to the schedule under the Workmen's Compensation Act and they are entitled to the common law damages.
15. I am inclined to the view taken in the decision referred to in the preceding paragraph. In paragraph 12 thereof, with reference to the provisions in Sub-sections (1) and (2) of Section 96 of the Act, it has been observed thus:
The cleavage of judicial opinion in this regard can be attributed to the difficulty in co-relating to the language of the proviso to Subsection (1) of Section 95 with that in Sub-section (2) of that section. The former seems to tell the insurer and the owner 'as regards third party risk, it will be enough compliance of the statute, if you take out a policy which will cover the liability under the Workmen's Compensation Act.' Sub-section (2) on the other hand gives a limit confusing mandate: 'there is an outer limit of one Lac of rupees as respects the liability incurred as a result of an accident but that liability will include a liability arising under the Workmen's Compensation Act also.' The use of an inclusive definition in drafting Sub-section (2) seems to suggest that the liability incurred in respect of an accident would embrace not only the one arising under the Workmen's Compensation Act, but also something more. -Needless to say, that others species of liability would be the one arising under common law of Tort.
16. For resolving the ambiguity referred to above, referring to the decision in Motor Owner's Insurance Company Ltd.'s case 1981 ACJ 507 it has been stated thus in paragraph 13 of the aforesaid decision in:
The only way to resolve the ambiguity would be, as pointed out by the Supreme Court in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji Modi to apply the touch stone that the purpose of law is to alleviate, not augment the sufferings of the people. Undoubtedly, an aggrieved employee is entitled Under Section 110-AA of the Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claim for compensation. The factors to be taken into consideration is deciding his claim under the two acts would be different a Tribunal would apply the principles of strict liability circumscribed by the Workmen's Compensation Act while, if the aggrieved choses to move the Motor Vehicles Tribunal, it would go by the principles of tort in determining case. The quantum of compensation under the Workmen's Compensation Act is quantified in the schedule itself. But the quantum of damages under common law of tort is subject to determination by the tribunal on the basis of well settled principles. The Workmen's Compensation Act offers no leeway in the matter of quantification of damages; the process becomes mechanical once the pay packet of the claimant is known. The proof of damages in a common law action before a tribunal which is generally presided over by a senior judicial officer may throw open a number of issues the burden of proving which would lie on the claimant. In this option of forum shopping -if the workman has chosen to the undertake the responsibility of discharging the onerous burden imposed upon him by tort law, it follows that he should get the benefit of the expression 'including the liabilities, if any, arising under the Workmen's Compensation Act, 1923,' occurring in Clause (a) of Sub-section (2) of Section 95 of the Motor Vehicles Act which implies that insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act.
17. In the ultimate analysis; I find that the impugned awards in the three claim cases are unexceptionable and deserve to be affirmed.
18. In the result, the appeals fail and are dismissed. The appellant shall bear its own costs and shall pay those of the claimants. The other respondents shall bear their own costs as incurred. Counsel's fee Rs. 150/- only in each appeal, if certified.