R. Jayasimha Babu, J.
1. The employee of the insured, while driving the vehicle, which was being driven negligently by him, died as a result of the accident that occurred. The insurer disclaimed the liability on the ground that no liability is cast on the owner of the vehicle when his employee is guilty of rashness and negligence and, therefore, the insurer is also not liable.
2. Section 140 of the Motor Vehicles Act provides for liability without fault in certain cases. That is a liability created by statute on the owner of the vehicle which was involved in an accident as a consequence of which a person suffers death or permanent disablement. In this case, the person who died drove the vehicle which was involved in the accident. The fact that the accident was caused by the person who died is not a factor which is required to be taken note of for determining the liability under Section 140(1) of the Motor Vehicles Act.
3. Learned counsel for the insurer sought to read common law into Section 140 of the Motor Vehicles Act and contended that unless there is liability, de hors the Act, the Act is not to be read as having imposed a liability. We cannot agree. The very title of the Chapter 10 as also the heading of Section 140 makes it abundantly clear that the liability created under that provision is created by virtue of that statutory provision and that the section is intended to modify the requirement of proof of negligence as a precondition for casting liability. The liability created by this statutory provision is absolute in the circumstances referred to in the section. Irrespective of the fault of the person driving the vehicle, if his death is on account of the use of that vehicle, the section is attracted.
4. Learned counsel for the insurer fairly brought to our notice the recent decision of the apex Court in the case of Smt. Rita Devi and others vs. New India Assurance Co. and another, , wherein the Court upheld the claim for compensation and liability of the insurer for making the payment in a case where persons who stole an auto rickshaw murdered the driver. The loss of the life of the driver in such circumstance was held to be due to the use of the motor vehicle. Thus, emphasis was placed on the vehicle and it's involvement and not on the negligence in the use of the vehicle. It was held by the Court that the driver was duty bound to accept fare paying passengers and the murder committed by such passengers was in the nature of an accident arising out of the use of the vehicle.
5. Counsel also invited our attention to a judgment of this Court in the case of Oriental Insurance Co. Ltd. vs. Kalliya Pillai and others, 2002 (4) CTC 469, where the Court took the view that even the liability under Workmen's Compensation Act, 1923 may be determined by this Court having regard to the extent of the coverage under the policy after it was found that the claim made before the Tribunal under the Motor Vehicles Act is not maintainable. The Insurer appellant does not dispute the fact that the policy covers the liability of the insured to his employee under the Workmen's Compensation Act. Under Section 3 of that Act negligence of the workmen who dies in an accident arising out of and in the course of his employment does not absolve the employer of the obligation to pay compensation in accordance with the provisions of that Act.
6. Having regard to this position, we deem it just to hold that the Insurer is liable to pay compensation payable in accordance with the provisions of the Workmen's Compensation Act. If the amount of such compensation is higher than the amount of the 'No fault liability' under Section 140 of the Motor Vehicles Act, Insurer will not be liable to make the payment under Section 140(5) of the Motor Vehicles Act. If the amount of the no fault liability is higher, then no amount need be paid under the Workmen's Compensation Act, as the claimant is entitled to the higher of the two amounts, but not both. The order under appeal which directs payment of Rs.2.00 lakhs to the parents of the deceased on the reasoning that though the negligent employee could not have claimed compensation, nevertheless his parents can, is set aside.
7. Appeal is allowed in part subject however to the directions to the appellant / relief granted to the claimants, under paragraph-6 above.