IMPORTANT POINT
Only because Sections 143 and 167 of the Motor Vehicles Act, 1988 refer to the provisions of the Workmen’s Compensation Act, 1923, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The ingredients for maintaining a proceeding under 1988 Act and 1923 Act are different.

Headnote:(i) Motor Vehicles Act, 1988—Sections 167, 143, 147 & 149—Workmen’s Compensation Act, 1923—Sections 2(n) & 3—Insurance claim—Option to file compensation claim either under 1988 Act or 1923 Act—Limited applicability of provisions of 1988 Act in proceedings under 1923 Act—Death of deceased in an accident while driving a tractor belonging to his wife—Claim petition filed under Workmen’s Compensation Act claiming deceased as ‘workman’ employed by his wife, owner of vehicle—According to claimants, deceased was earning about Rs. 3,000/- p.m. towards salary and Rs. 25/- as Bata per day—Owner of tractor being wife of deceased raised a contention that she and her husband had been living separately prior to date of accident and tractor being insured, she was not liable to pay any amount—No contract of employment was produced—However, Commissioner for Workmen’s Compensation awarded Rs. 2,11,659/- as compensation—However, High Court held that no award could be passed against the insurer by the Commissioner of Workmen’s Compensation—Whether provisions of Workmen’s Compensation Act can be held applicable in such a case—(No)—Whether provisions of 1988 Act, proprio vigore would apply in regard to a proceeding for payment under 1923 Act—(No).
       Held : Compulsory insurance, therefore, is provided under the 1988 Act and not under the 1923 Act. Statutory duty to indemnify the insured by the insurer arises only thereunder. Section 143 of the 1988 Act occurring in Chapter X thereof shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the 1923 Act resulting from an accident of the nature referred to in Sub-Section (1) of Section 140 and for the said purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act. Chapter X deals with certain categories of cases. A claim petition under Section 166 of the 1988 Act, however, comes under Chapter XII thereof. Applicability of the provisions of 1988 Act shall, therefore, be confined to Chapter X thereof for the purpose of a proceeding initiated under the 1923 Act.(Para 11)
       A “workman” within the meaning of the provisions of the 1923 Act would, therefore, be entitled to maintain an application for payment of compensation if, for a personal injury caused to him by accident arising out of or in case of his employment in which the employer shall be liable to pay compensation in accordance with the provisions of the Chapter X. Chapter X of the 1988 Act, thus, is made applicable in relation to a claim which could have also been made under Section 3 of the 1923 Act. But, having regard to the fact that Section 143 of Chapter X makes a special provision, the same shall apply only to cases arising under the said Chapter and not under Chapter XI of the 1988 Act. (Para 13)
       The 1988 Act provides for mandatory insurance for the matters laid down under Section 147 of the Act and, thus, an Award can be passed against an insurer. An insurer, having regard to Sub-Section (2) of Section 149 of the Act, would, ordinarily, have limited defence as provided for therein. The defence of an insurer in a proceeding under the 1923 Act would be unlimited and all the defences which are available to the employer would be available to it. (Para 14)
       Section 143 of the 1988 Act has a limited applicability so far as the provisions of the 1923 Act are concerned. Where a liability arises despite the fact that accident might have taken place without any fault of the driver of the vehicle and others under control thereof, the insurer may have a liability, whereas under 1923 Act a “workman” would be entitled to compensation, even if no negligence is proved against the owner or the person in charge of the vehicle; but the applicability of Section 143 of the 1988 Act, therefore, cannot be extended to one made under Chapter XI thereof. In a case of this nature, provision of Section 167 of the 1988 Act would be of no significance.(Para 15)
       Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide.(Para 22)
       No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also known borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under 1923 Act certainly would not lie. Only because Section 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of 1988 Act to the provisions of 1923 Act save and except to the extent noticed hereinbefore. (Para 23)
       The ingredients for maintaining a proceeding under 1988 Act and 1923 Act are different. The purpose for which a contract of insurance is entered into may be different, whereas 1988 Act, it will bear repetition to state, a contract of insurance would be mandatory; for the purpose of applicability of the 1923 Act, it will be optional and as indicated hereinbefore, in Harshadbhai Amrutbhai Modhiya (supra), even contracting out is permissible, as under the 1923 Act, the liability of the insurer is limited to the claim of the workman. The liability under Section 147(2)(b) of the 1988 Act, on the other hand, extends to third party.(Para 24)
       (ii) Workmen’s Compensation Act, 1923—Sections 3 & 19(1)—Compensation claim—Liability of insurer to be joined as a party in a proceeding under 1923 Act—No bar in 1923 Act in this behalf—Question of this nature should be gone into the proceeding under 1923 Act.(Para 25)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. Interpretation of Section 167 of the Motor Vehicles Act, 1988 (for short, ‘1988 Act’) falls for consideration in this appeal which arises out of a judgment and order dated 23/7/2003 passed by the High Court of Judicature Andhra Pradesh at Hyderabad in Appeal Against Order No.2720 of 2003, holding that no Award could be passed against the insurer in the proceeding under the provisions of Workmen’s Compensation Act, 1923 (‘1923 Act’, for short).

3. Before adverting to the question involved in this appeal, we may notice the factual matrix obtaining herein.

A tractor bearing No. AP 37P 3717 belonged to Smt. Gottumukkala Venkata Lakshmi, the wife of deceased Bangaru Raju @ Appala Raju. Respondent No. 1 was the insurer of the said vehicle. An accident took place. Bangaru Raju died in that accident while driving the said tractor. How the accident occurred is not known. Claiming a sum of Rs.3 lakhs by way of compensation, a petition before the Commissioner of Workmen’s Compensation in terms of the 1923 Act was filed against Smt. Gottumukkala Venkata Lakshmi, the owner of the tractor, and the insurer herein. According to the claimants, the deceased was earning about Rs.3,000/- per month towards salary and Rs.25/- as Bata per day.

4. The owner of the tractor, being wife of the deceased, raised a contention that she and her husband had been living separately prior to the date of accident and the tractor in question being insured with the 1st respondent herein, she was not liable to pay any amount to the claimant by way of compensation. She, however, examined herself as P.W.1. Although, no such case was made out in the objection filed by the owner of the tractor, it was alleged that her brother had engaged the deceased on a monthly salary of Rs.3,000/- per month and Bata of Rs.25/- per day.

5. The contention raised by the 1st respondent before the Commissioner under 1923 Act was that as the deceased and the owner of the tractor were husband and wife, the question of there being a relationship of employer and employee between them did not arise and in that view of the matter, the deceased was not a “workman” within the meaning of the provisions of Section 2(n) of the 1923 Act.

6. Despite the fact that no contract of employment was brought on records, the Commissioner for Workmen’s Compensation proceeded to calculate the amount of compensation payable under the 1923 Act in terms of a purported Notification dated 27.7.2000 fixing minimum wages for the drivers of light vehicles. The age of the deceased was found to be 41 years at the time of his death. Opining that the salary of the deceased would be Rs. 2334/- per month, it was held that the claimants were entitled to Rs. 2,11,659/- by way of compensation. It was directed :

“In view of the above facts the quantum of compensation payable to the dependents is = Age factor x 50% of wages = 181.37 x 2334 x 50/100 = 2,11,658.79 Ps rounded to Rs. 2,11,659/- (Rupees two lakhs eleven thousand six hundred and fifty nine only).

Therefore the O.P.1 being the employer and owner of the vehicle and the O.P.2 being the insurer of the vehicle are hereby directed to deposit jointly and severally Rs. 2,11,659/- (Rupees two lakhs eleven thousand six hundred and fifty nine only) towards compensation payable to the applicants by way of demand draft drawn in favour of the Commissioner for Workmen’s Compensation and Deputy commissioner of Labour, Eluru within 30 days from the date of receipt of this order.”

7. An appeal preferred thereagainst before the High Court has been allowed by reason of the impugned judgment holding that no Award could be passed against the insurer by the Commissioner for Workmen’s Compensation.

8. Mr. Venkateswara Rao Anumolu, learned counsel appearing on behalf of the appellants would submit that having regard to the provisions of Section 167 of the 1988 Act, the claimants had an option to file an application either under the 1988 Act or under

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2007 Supreme(SC) 218

Cases Referred (3)