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Gujarat High Court
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya
Gulamrasul Rehman Malek
Versus
Gujarat State Road Transport Corporation
First Appeal No. 1437 of 2009—Decided on 28/11/2013
Motor Vehicles Act, 1988 (Central Act 59 of 1988) — Sections 166, 167, 140, 173 — Civil Procedure Code 1908 — Order 23 Rule 1 — Claim application under the Act-Dismissed by Tribunal as not maintainable — Propriety of — Finding as to — Appellant applicant was driver of the bus which due to failure of steering on account of technical defect dashed with a tree resulting in fracture — Injury to appellant — Consequently appellant prayed for compensation of Rs. 5 Lakhs against GSRTC by way of application under the Act — Tribunal having considered the material on record held that there was no in attention on the part of the GSRTC the owner of the bus and it was due to negligence on the part of appellant himself that the accident had occurred — He was therefore not entitle to any compensation — Court having gone through the evidence on record held that in the accident no other vehicle was involved — It was applicant himself who was driving the vehicle and met with the accident — The applicant was therefore required to prove that respondent was responsible for the accident which resulted in injury caused to him Respondent has on the other hand proved by evidence on record that it was not at all responsible for the alleged accident — Appellant found not entitle to any compensation — Learned Counsel for the appellant requested for compensation under EC Act — Court held that applicant having once opted to claim compensation under the Act can not be permitted to resort to EC Act to clam compensation — The Learned Counsel for applicant than requested to allow to withdraw his application under the Act so as to proceed under EC Act for compensation but Court refused the same and held that Tribunal has rightly dismissed the claim petition of applicant.
Held :
It is now well settled that in order to succeed in a proceeding under Section 166 of the M.V. Act, it must be established that the victim has suffered the injuries arising out of an accident and in the said accident, the respondent is responsible. In the case before us, no Insurance Company is involved, and, therefore, in order to succeed in this proceeding under Section 166, it is for the appellant-claimant to prove that he was injured due to any negligence of the owner of the vehicle. After going through the evidence, we find that on the date of the accident, the appellant, although being entrusted as the driver of the bus, made no complaint about the steering that it has “false play” or that the steering was defective. Even after driving the bus for about 36 kms., he never complained that the bus was not fit or safe for driving. Therefore, on the evidence on record, it is not possible to infer that there was any negligence on the part of the employer in forcing the appellant to drive a defective bus leading to the accident. It is for the appellant to prove such negligence and he has failed to give any evidence establishing such fact. He being the driver, it was his fault in dashing with a tree without applying brake. If the brake was applied at the appropriate time, the accident could have been averted. No explanation has been given by the claimant as to what prevented him from applying brakes even if it is assumed that the steering was not properly functioning. [Para 8]
Court, therefore, find that in the facts of the present case, the learned Tribunal below rightly held that in the absence of any negligence on the part of the employer, the appellant himself being the driver, was not entitled to get any relief under Section 166 of the M.V. Act. [Para 9]
The learned Advocate for the appellant, made an alternative submission. According to him, the appellant being an employee of the respondent, under the provisions of the Employees Compensation Act (EC Act, hereafter) [erstwhile the Workmen’s Compensation Act] even if there is no negligence on the part of the employer.
[Para 10]
This is especially so when the claimants have not raised the contention with regard to payment of additional premium before the Tribunal. However, it would not be appropriate to relegate the claimants to resort to the provisions of Workmen’s Compensation Act at this stage and it is only appropriate to consider the appropriate compensation under Workmen’s Compensation Act. [Para 11(13)]
As a last resort, Mr. Hakim submitted that his client may now be permitted to withdraw the proceedings under Section 166 of the Motor Vehicles Act to enable him to file a fresh proceeding under the EC Act. It is well-known that the amount of compensation under the Motor Vehicles Act is more than one prescribed under the EC Act and with an expectation to get more amount of compensation, the Appellant, in spite of concurrent remedy under both the Acts, decided to avail of the provision of the Motor Vehicles Act knowing fully well that in the other Act even without proving negligence he could get the benefit of compensation. In my opinion, after dismissal of the proceedings on merit, he should not be permitted to withdraw the proceedings at the appellate stage by taking aid of Order 23 Rule 1 of the Code of Civil Procedure.
[Para 17]
Law Laid Down :
After dismissal of the proceedings under the Act on merit claimant should not be permitted to withdraw the proceedings at the appellate stage by taking aid of Order 23 Rule 1 Civil Procedure Code.
Bhaskar Bhattacharya, CJ.—This appeal under Section 173 of the Motor Vehicles Act is at the instance of an unsuccessful applicant under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act) and is directed against an order dated 1st August, 2008 passed by the Motor Accident Claims Tribunal [Aux.], Fast Track Court No. 7, Vadodara, in Motor Accident Claim Petition No. 1974 of 1998 by which the learned Tribunal dismissed the claim-application.
2. The case made out by the appellant in the claim-application under Section 166 of the M.V. Act was that on 23rd November 1996, while the appellant was going to Vadodara Kirti Stamb from Jambusar by driving an ST Bus bearing registration No. GJ.1.Z.4696 with moderate speed and by observing the traffic rules, when he reached near Padra village, the steering of the bus failed due to a technical defect, as a result, the bus crossed the road and dashed with a tree resulting in fracture-injury to the appellant as indicated in the Medical Certificate. According to the claimant, the said accident had taken place solely on account of technical defect in the steering of the bus. Consequently, the appellant prayed for compensation of Rs. 5 lakh from the owner of the bus who was the employer of the appellant, viz. Gujarat State Road Transport Corporation [hereafter, GSRTC]. The appellant claimed that he was aged 50 years at the time of accident and was working under the respondent as Driver for the last 26 years and at the time of the accident, he used to get Rs. 10,000/- a month as salary including the payment for the overtime. The appellant further alleged that in view of the injuries suffered, he could not attend his duties from December, 1996 to February 1997 and thus, suffered the loss of leave. He also suffered the loss of overtime-benefit and due to the fracture injuries on his right leg, he was downgraded from the post of Driver to the post of Peon and thus, suffered a loss of Rs. 5000/- a month. The appellant further claimed that due to downgrading of his post, he would suffer loss of increment and Provident Fund at the time of his retirement. Hence, he claimed Rs.5 lakh as compensation.
2.1 The GSRTC has, however, opposed the claim application by filing written statement, inter alia, contending that the claim-application was not maintainable as due to the negligence on the part of the appellant himself, the accident occurred. It was also pointed out that the driver of the bus was not covered for any scheme of compensation under the M.V. Act as regards 3rd party risk and the accident having occurred due to negligence of the injured himself, he is not entitled to claim any compensation. The respondent also denied other allegations including his monthly income as shown in the claim-application.
2.2 At the time of hearing, the appellant himself deposed in support of his claim-application and on behalf of the respondent, Narendra Natwarlal Modi and Ajit Anandrav Vangekar, two employees of the respondent, gave evidence.
2.3 The learned Tribunal below, on consideration of the materials on record, accepted the defence of the employer and held that there was no inattention on the part of GSRTC, the owner of the bus, and it was due to the negligence on the part of the appellant himself that the accident had occurred, and, consequently, the appellant was held not entitled to claim any amount under Section 166 of the M.V. Act.
3. Being dissatisfied, the claimant has come up with the present appeal.
4. Mr. Hakim, the learned advocate appearing on behalf of the appellant, has taken this court through the entire materials on record including the depositions and the exhibits. By referring to the register maintained by the respondent regarding complaint relating to the buses, Mr. Hakim tried to convince this court by showing that from 27th October 1996 till 17th November 1996, there were several complaints from drivers regarding false-play of the steering. However, from th
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