1. This appeal is directed against the award of the Motor Accidents Claims Tribunal, Madras in O. P. No. 440 of 1974 dismissing the appellant's claim for compensation in a sum of Rs. 40,000, for the death of one Jayaraman in a motor vehicle accident.
2. On 14-8-1974, at about 6-30 a. m. the said deceased Jayaraman was walking in the Express Newspapers estate, Madras, from north to south. At that time lorry MDY 2601 belonging to the first respondent, Express Newspapers Ltd. proceeding from east towards south driven by one Rajamanner knocked him down on account of which he sustained multiple and grievous injuries which ultimately resulted in his death in the hospital. On the basis that the said accident was due to the rash and negligent driving of the first respondent's lorry MDY 2601, by its driver the wife and children of the deceased filed a claim petition 0. P, No. 440 of 1974, claiming a compensation of Rs. 40.000, as against the first respondent, the owner of the vehicle and the second respondent, the insurer with which the lorry had been insured.
3. The said claim was opposed by the first respondent on the ground that there was no rashness or negligence on the part of the driver of the lorry, that the accident was due to the carelessness and negligence on the part of the deceased himself and that in any event, the compensation claimed was excessive. It was also contended that the deceased was an employee covered by and insured under the Employees, State Insurance Act and the scheme framed there under and the claimants having claimed and obtained compensation under the Employees' State Insurance Act, they have no right to claim compensation under the Motor Vehicles Act and therefore the claim petition is not maintainable in law.
4. The Insurer, the second respondent, resisted the claim petition contending that there was no rashness and negligence on the part of the driver of the lorry, that the accident was due to the negligence of the deceased himself, and that the accident having occurred inside the Express Estate which is not a public place, the Insurance company is not liable to pay compensation.
5. On these pleadings the points that were set down for consideration by the Tribunal were: (1) Whether the accident occurred due to the rash and negligent driving of the lorry (2) If so. to what amount of compensation the claimants are entitled (3) Whether the deceased was an employee covered under the Employees' State Insurance Act and if so, whether the first respondent is not liable to pay the compensation claimed and (4) Whether the accident occurred in a public place so as to make the insurer liable?
6. The Tribunal, after analysing the evidence adduced by the parties held that the accident was due to the rash and negligent driving of the lorry by the driver. on the second question the Tribunal held that if the liability of the respondents to pay compensation is upheld, the fair and reasonable compensation would be Rs. 32,600. But as the Tribunal held on questions 3 and 4 that the accident did not occur in a public place and that the claim petition is barred under S. 53 of the Employees' State Insurance Act, it was held that the claimants are not entitled to claim any compensation under the Motor Vehicles Act. In this view, the Tribunal dismissed the claim petition.
7. In this appeal filed by the claimants the only two questions that arise for consideration are (1) Whether the accident occurred in a public place so as to make the insurer liable for compensation in relation thereto. and (2) Whether the claim for compensation under the Motor Vehicles Act is barred by Section 53 of the Employees' State Insurance Act. The other two questions, which were considered by the Tribunal and its findings thereon have become final, do not arise for consideration as those findings are in favour of the appellants in this appeal.
8. Section 94 of the Motor Vehicles Act requires a policy of insurance to be taken out by the owner of a motor vehicle complying with the requirements of Chap. VIII. S. 95 (1) (b) of the said Act reads thus-
"In order to comply with the requirements of this Chapter, a Policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-sec. (2) against any liability which may be incurred by him or them in respect of the death, or bodily injury to, any person caused by or arising out of the' use of the vehicle in a public place."
9. Thus. it is clear that the insurer's liability will arise only if the accident had occurred in a public Place. 'Public place, is defined in S. 2 (24) of the Act as a road, street, way or 3ther place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage. The question 1 is whether the accident occurred in a private place or in a Public place. If the accident had occurred in a private place it is common ground that the insurer is not liable. In the claim petition the place of accident has been stated as 'in Express Newspapers estate. 3 Club House Road, Madras 2". It is the evidence of P. W. 4, the investigating officer that "the accident was within the premises of Express estate". Express estate has a compound wall all around and a gate at the entrance of the premises. P. W. 5 who claims to be an eye-witness to the occurrence has stated that the accident occurred within the compound of Express estate and there was a watchman at the inner gate and a watchman at the outergate and that he went inside the compound with the permission of the watchman at the outergate. R. W. 2, the driver of the vehicle involved in the accident had also deposed that the accident occurred inside the compound of the Indian Express estate. Thus the statement in the -claim Petition and the evidence of P. Ws. 4 and 5 and R. W. 2 make it clear that the accident occurred inside the compound of the Indian Express estate which is a private place and not 'in a public place into which public can enter as of right.
10. The learned counsel for the claimants appellants would however, contend that a liberal interpretation has to be given for the expression public place, occurring in S. 95 (1) (b) and that since the concern of Express Newspaper which is a public media is housed within the compound. the entire premises must be taken to be one to which public can have access. The learned counsel refers to a decision of a Division Bench of this court in Crown Prosecutor v. Govindarajulu, (1916) ILR 39 Mad 886: (AIR 1916 Mad 474), wherein the Harbour premises was held to be a place of public resort. In that case, a person was prosecuted for disorderly behaviour in the Madras Harbour premises, under S. 75 of the Madras City Police Act. He was acquitted by the Presidency Magistrate on the ground that the Harbour premises do not constitute a place of public resort. On appeal the High Court held that the bylaws framed under the port Trust Act prohibiting trespassers or persons who enter on the harbour premises without having business there or with the ships lying in the harbour cannot be construed as preventing entry of respectable people and that so long as respectable members of the public have been freely allowed to enter the harbour premises, as well as the very large number of people who have business in the harbour premises or with the shipping, the harbour premises has to be taken to be a place of public resort. We do not see how the entire express estate premises can be construed to be a public place merely because a newspaper is printed and published from that place. Merely because newspaper is a public media the place where the newspaper is printed and published cannot be taken to be a public place if that were to be so, every place where books are printed and published will become a public place. The test for finding out whether a place is public or private is to see whether any member of the public would have access as of right to that place. in this case the evidence is clear that the Indian Express estate is surrounded by a compound and there is a gate through which the entry is regulated by permission.
11. The learned counsel for the appellants would refer to the decision in Queen v. Wellard, (1884) 14 QBD 63, holding "a legal right of access by the public is not necessary to constitute a public place. A public place is one where the public go, no matter whether they have a right to go or not." It is not possible to equate a premises belonging to a private person as a public place such as harbour. air port, railway station or bus stand where public are entitled to enter as of right for purpose of utilizing the services or facilities offered in those premises. The decision, which relates to a harbour premises can be applied to a private business house even it would be the printing and publishing place of a newspaper. Otherwise, even shops and hotels, which are owned and run by private individuals, will become public places as in all such establishments the public are allowed or even invited to enter. We have to therefore hold that the accident in this case occurred in a private place and not in a public place. The result is the insurer of the vehicle is not liable to pay compensation even if the claim petition is maintainable.
12. Coming to the next question as to the applicability of the bar under Section 53 of the Employees' State Insurance Act that section is as follows-
"Bar against receiving or recovery of compensation or damages under any other law: An insured person or his dependent shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
13. It is not in dispute that the deceased was an employee of the Express Newspapers Ltd, and that the company is covered by the said Act. It is also not in dispute that the deceased was an insured person under that Act with the fast respondent company. S. 53 prevents the insured person or his dependants getting any compensation in respect of an employment injury sustained by him either under the Workmen's Compensation Act 1923, or any other law for the time being in force. "Employment injury" has been defined as a personal injury to an employee caused by accident or an occupational disease arising out of and or in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India." According to the first respondent as the injury had occurred in the course of the employment, the death should be taken (as) due to an employment injury. In the claim petition it is stated that the accident occurred in the Express Newspapers estate. Thus, even according to the claimants the accident occurred within the place of employment. It is the evidence of R. W. 1, the manager of the Mount Road office of the Employee State insurance Corporation that the deceased had worked from 10 p. m. on the previous day till 6 a. m. an the date of the accident and that the accident occurred at 6-30 a. m. at the place of employment. it has been held by the Supreme Court in Saurashtra Salt Manufacturing Co. v. Bai Valu Buju, -
"As a rule, the employment of a workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment being excluded. It is now well settled however that this is subject to the theory of notional extension of the employer's premises so as to include an area which the workman Passes and repasses in going to and in leaving the actual place of work- There may be some reasonable extension in both time and Place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman keeping in view at all times this theory of notional extension."
Applying the test laid down by the Supreme Court as to the place and the time of the accident, it will be clear that the accident occurred in this case in the course of the employment of the deceased. As a matter of fact the claimants are receiving compensatory benefit under the Employees' State Insurance Act as spoken to by R. W. 1, in relation to the accident and that can only be on the basis that the deceased sustained employment injury within the meaning of S. 53 of the said Act. See. 53 specifically bars any claim for compensation or damages under the Workmen's Compensation Act or any other law for the time being in force including the Motor Vehicles Act. The object of the said section appears to be to see that the employer is not faced with more than one claim in relation to the same accident. Employees' State Insurance Act has been enacted subsequent to the Motor Vehicles Act. Therefore. once the claimants get the benefit under the Employees' State insurance Act in relation to an accident, then no claim for compensation under S. no-A of the motor vehicles Act could be maintained.
14. The learned counsel for the appellants contends that S. 53 is ultra vires the powers of parliament as the provisions in S. 53 have taken the benefit given under the Motor Vehicles Act away. We do not see how S. 53 can be held to be ultra vires. It is true the parliament made a Provision in S. 110-A of the, Motor Vehicles Act, or in the Workmen's Compensation Act, for payment of compensation in respect of death or bodily injury to persons involved in an accident. However, while legislating the Employees' State Insurance Act, and conferring a benefit on the employees covered thereby, it specifically provided that because of the benefit granted under this Act, claimants cannot claim any benefit under any of the other Acts. The claimants in this case have already taken benefit under the provisions of the Employees, State Insurance Act and are receiving compensatory benefit thereunder in relation to the accident. Therefore it is no longer open to them to challenge S. 53 of the said Act. if they had not obtained any benefit under the said Act and claimed benefits only under the Motor Vehicles Act, the position will be slightly different and it may be open to them to raise a contention that S. 53 is ultra vires. Now that they had benefits under the provisions of the said Act, they cannot question the validity of S. 53.
15. The learned counsel for the appellants, would, however, refer to the decision in Hindustan Aeronautics V.P. V. Perumal, AIR 1972 Mys. 255, wherein it was held that the claims for compensation arising under S. 110-A of the Motor Vehicles Act are not barred under S. 61 of the Employees, State Insurance Act. However, we do not see how that decision is relevant here. S. 61 is in the following terms-
"Bar of benefits under other enactments. When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactments.,'
While S. 53 bars any claim for compensation or damages under the Workmen's Compensation Act, 1923 or any other law for the time being in force or otherwise, S. 61 bars benefits under other enactments. The views taken by the Mysore High Court was that compensation or damages claimed under S. 110-A of the Motor Vehicles Act is based on the law of torts and that it is not a benefit under the Motor Vehicles Act, though that Act contains the procedure for making a claim and the enforcement of that claim. Since the liability to pay compensation in respect of a motor accident arises under the general law of torts. the liability cannot be said to be arising under the Motor Vehicles Act and as S. 61 of the Employees, State Insurance Act refers to the benefits under other enactments, that section cannot constitute a bar for making a claim in respect of a tortious liability arising out of a motor accident. The reasoning of the Mysore High Court for holding that S. 61 is not a bar for claiming compensation under S. 110-A of the Motor Vehicles Act is as follows-
"It is true that the Motor Vehicles Act is a special law. It is also true that it is an enactment. But the crucial point for determination is whether the provisions of Ss. 110 to 110-B of the Motor Vehicles Act are the provisions relating to procedural law or of substantive law. Reading the Ss. 110 to 110-F of the Motor Vehicles Act, it is evident that they provide for adjudication upon claims of compensation in respect of accidents involving the death or injury to persons arising out of the motor vehicles. S. 110-A creates a right to make an application arising out of an accident. S. 96 creates a liability to pay such compensation on the part of the insurer. S. 110-F bars the jurisdiction of the civil courts to make adjudication which could be made by the Claims Tribunal for the area for which such Tribunal has been constituted. It is thus clear that a claim for compensation could be made only under the provisions of Chap. VIII of the Motor Vehicles Act (to) Claims Tribunal, but. the right to sue is quite a different matter which originates from substantive law namely the law of Torts. Evidently the Law of Torts is not an enactment. Consequently, the provisions of S. 61 of the Employees' State Insurance Act cannot be attracted to such a case."
16. Thus, in view of the above discussion, we have to uphold the award of the Tribunal in this case. The appeal is therefore dismissed but without costs.
17. Appeal dismissed.