Judgment

Puneet Gupta, J.—The appellant-Insurance Company has challenged the Award of the learned Motor Accidents Claims Tribunal, Srinagar on the following grounds:-

a) The award dated 19.11.2015, passed by the Tribunal is bad in law as the Tribunal has not decided the compensation amount in accordance with the Schedule (I) attached to the Employees Compensation Act, 1923 but as per the provisions of the Motor Vehicles Act.

b) The quantum of compensation assessed by the Tribunal is on higher side.

c) The liability of the appellant, if any, to pay compensation to the victim is restricted one as per the Policy.

2. The learned counsel for the appellant has indeed argued the appeal in consonance with the averments contained in the appeal. The learned counsel appearing for the claimant/respondent No.1 has submitted that the Tribunal has passed the order in accordance with law. The compensation awarded is ‘Just’ in the facts and circumstances of the case.

3. The record of the Tribunal is also before the Court for perusal.

4. The learned Tribunal has awarded Rs.5,52,888/- with interest @ 6% per annum from the date of institution of claim petition till realization of the amount in favour of the claimant/respondent No.1 herein.

5. Before proceeding further, it is profitable to place on record the claim raised by the respondent No.1 before the Tribunal. The claimant/respondent No.1 preferred claim petition before the Tribunal with the averments that he had incurred permanent disablement as he suffered the injuries while the vehicle (Tipper) bearing No. JK01E-1910 was in use at the time of accident on 01.06.2008. The claimant was engaged as labourer in loading/unloading of stones with the offending vehicle at the time of accident. The claimant suffered injuries on his left hand as a result he had to undergo treatment at different hospitals. The claimants suffered amputation of the left, middle and ring finger. The Tribunal held the claimant entitled for aforesaid amount after going through the evidence that came on record.

6. The first question which requires determination is whether the Tribunal erred in granting compensation to the claimant as per the provisions of the Motor Vehicles Act and not the Employees Compensation Act as stated in appeal. The appellant while filing the appeal has admitted that the claimant was entitled to avail the remedy under Section 167 of the Motor Vehicles Act or the labour law. The claimant has opted to avail the remedy under the provisions of the Motor Vehicles Act though he could avail the remedy under the Labour Law as he was performing the duties as labourer at the time of accident. Once the claimant opted to avail the remedy under the Motor Vehicles Act, the consequence of the same is that the case of the claimant is to be dealt with under the provisions of the Motor Vehicles Act and not under the other Act. The argument raised by the learned counsel is without any basis and stands rejected.

7. The next issue which is required to be determined is: whether the compensation awarded by the Tribunal is ‘just’ in the facts and circumstances of the case. The amount to which the claimant may be entitled to has to be as per the spirit of the Motor Vehicles Act and not otherwise. There can neither be windfall or bounty nor there should be pittance to the claimant in case he is to be awarded the compensation for the injuries suffered by him as a result of accident. The insurer is not normally entitled to challenge the compensation awarded to the claimant by the Tribunal. The insurer can take the defences as available to it only after the permission is granted by the Tribunal for the same and not otherwise. In the present case, the insurance company though has filed reply to the claim petition yet failed to apply and obtain permission before the Tribunal for taking defences available as per the Motor Vehicles Act. Not only that, it is also evident from the record that the appellant was set ex-parte during the