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2005(8) Supreme 573
Supreme Court of India
(From Karnataka High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
National Insurance Co. Ltd. —Appellant
versus
Mastan & Anr. —Respondents
Civil Appeal No. 7381 of 2005
(Arising out of SLP (C) No. 26615 of 2004)
With
Civil Appeal No. 7383 of 2005
(Arising out of SLP (C) No. 5861 of 2005)
Decided on 9-12-2005
Counsel for the Parties :
For the Appellant : Kishore Rawat and M.K. Dua, Advocates.
For the Respondents : P.R. Ramasesh, Advocate.
Held : Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-a-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. The ‘doctrine of election’ is a branch of ‘rule of estoppel’, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. (Paras 21 to 23)
The First Respondent having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof. We, therefore, with respect do not subscribe to the views of the Full Bench of the Karnataka High Court. Mr. P.R. Ramasesh is not correct in contending that both the Acts should be read together. A party suffering an injury or the dependents of the deceased who has died in course of an accident arising out of use of a motor vehicle may have claims under different statutes. But when cause of action arises under different statutes and the claimant elects the forum under one Act in preference to the other, he cannot be thereafter permitted to raise a contention which is available to him only in the former. The decision of this Court in Ved Prakash Garg (supra) whereupon Mr. Ramasesh placed strong reliance may not have any application in the instant case as the liability of insurer therein arose under the 1923 Act; where having regard to proviso (i)(c) appended to sub-section (1) of Section 147 was considered in the context of clause (i) of sub-section (1) of Section 11 of the insurance policy vis-a-vis Section 4A(3) thereof. Such a question does not arise herein as the claim under the 1923 Act vis-a-vis Chapter XI of the 1988 Act stand absolutely on a different footing. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed and the matters are remitted to the High Court for consideration of these appeals afresh on merit. The appeals, it is needless to say, would be entertained only in the event, the Appellants satisfy the requirements contained in the proviso appended to sub-section (1) of Section 30 of the 1923 Act. (Paras 27 to 31)
As Per P.K. Balasubramanyan, J. (Concurring Judgment)
On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen’s Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen’s Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as ‘no fault’ liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasizes what is emphasized by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen’s Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988 overriding effect. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen’s Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under the Workmen’s Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen’s Compensation Act by Section 167 of the Motor Vehicles Act. The claimant-respondent, is not entitled to do so. The High Court was in error in holding that he is entitled to do so. (Paras 3 and 4)
Judgment
S.B. Sinha, J.—Leave granted.
2. Whether an insurer, while defending an action initiated under the Workmen’s Compensation Act, 1923, (for short, ‘1923 Act’) is precluded from raising any defence as envisaged in under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988, (for short, ‘the 1988 Act’) is the question involved in these appeals.
3. We will notice the fact of the matter from the Civil Appeal arising out of Special Leave Petition (Civil) No. 26615 of 2004.
4. A lorry bearing registration No. KA 34-545 was insured with the Appellant company. The First Respondent herein was a cleaner and the Second Respondent was an owner of the said lorry. The said lorry was involved in an accident resulting in sufferance of injuries by the First Respondent which led to his disability to the extent of 45 to 50 . He initiated a proceeding under the 1923 Act. The Commissioner for Workmen’s Compensation, Davangere, by an order dated 30.04.1997 awarded a sum of Rs. 2,70,264/- by way of compensation and interest of Rs. 33,230/- to the workman payable by the Appellant herein.
5. Aggrieved by and dissatisfied therewith the Appellant preferred an appeal before the High Court under Section 30(1) of the 1923 Act, which was dismissed by the High Court on the premise that the Appellant was not entitled to urge any ground therein which was not available to it in terms of the 1988 Act. In support of the said finding, reliance was placed upon a Full Bench judgment of the High Court dated 17.12.2003 in MFA Nos. 1910 of 1997 etc. The question referred to the Full Bench of the High Court for its consideration was as under:
“Whether the restrictions on the defences available to an insurance company in terms of Section 149(2) of the Motor Vehicles Act have any application to the proceedings under the workmen’s Compensation Act?”
6. Upon consideration of various provisions of the 1988 Act including Sections 143, 167 and 149 thereof, the Full Bench held:
“...Under the circumstances, under the W.C. Act, the Insurance Company can only agitate violation of any condition of the policy to make substantial question of law, and therefore, the question of raising other defences available in terms of Sec. 149(2) of the M.V. Act does not arise.”
It was also held:
“Under the provisions of Workmen’s Compensation Act a statutory appeal is provided under Section 30 of the Act to the High Court on the orders enumerated therein. The proviso to that Section makes it very clear that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. As stated earlier negligence or contributory negligence of the offending vehicle is not a ground to be considered at all while awarding compensation under the Workmen’s Compensation Act. Therefore, the insurer cannot prefer any appeal either challenging the quantum of compensation or on any other grounds except the ground available to him under Section 149(2) of the 1988 Act.”
7. In arriving at the said findings, the Full Bench inter alia relied upon decisions of this Court in National Insurance Company Ltd. v. Nicolletta Rohtagi and Others [(2002) 7 SCC 456], United India Insurance Co. Ltd. v. Bhushan Sachdeva & Ors. [(2002) 2 SCC 265] as also Ved Prakash Garg v. Premi Devi and Others [(1997) 8 SCC 1]. The Full Bench apart from the finding that the contributory negligence is not a defence on the part of the owner of the vehicle or the insurance company further opined that the question of proving negligence does not arise under the 1923 Act. It was further observed that the expression ‘death’ shall carry the same meaning both under the 1923 Act as also the 1988 Act.
8. Both the 1923 and 1988 Acts are self-contained Codes. Subject to the provisions made in the later Act, Section 3 of the 1923 Act provides that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in terms of the provisions o
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