Point of Law: Accident claim - Tribunal by total non application of mind to the settled position of law has not converted the claim filed under section 166 of the Motor Vehicles Act to a claim filed under the provisions of Workmen Compensation Act

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 06.09.2013 made in MCOP.No.421 of 2008 on the file of the Motor Accident Claims Tribunal (Sub Judge at Dharapuram).)

1. This Civil Miscellaneous Appeal has been filed by the claimants challenging the Award dated 06.09.2013 passed by the Motor Accident Claims Tribunal (Sub-Judge, Dharapuram), in MCOP.No.421 of 2008.

2. Heard Mr.Lokesh, learned counsel for the Appellants and Mrs.R.Sreevidhya, learned counsel for the second respondent. Since no adverse orders are going to be passed against the first respondent, notice to the first respondent is dispensed with by this Court.

3. The Appellants/claimants are aggrieved by the findings of the Tribunal holding that they are not entitled for compensation under section 166 of the Motor Vehicles Act, since the deceased was himself a tortfeasor and therefore, the Appellants/claimants are entitled only for a compensation of Rs.50,000/- under no fault liability prescribed under section 140(1) of the Motor Vehicles Act. Aggrieved by the findings of the Tribunal, this Appeal has been preferred by the claimants.

4. Learned counsel for the Appellants drew the attention of this Court to the following authorities:

(a) The Oriental Insurance Co. Ltd., vs. Kaliya Pillai reported in 2002 (4) CTC 469 (DB);

(b) M.Anbalagan vs. K.M.Asalm Basha and another reported in 2015 (2) TN MAC 362 (DB); and

(c) A Single Bench Judgment of this Court dated 11.09.2020 passed in C.M.A.No.158 of 2012.

Relying upon the aforementioned authorities, learned counsel for the Appellants would submit that the deceased being employed as a driver by the first respondent, the owner of the vehicle which is insured with the second respondent, the Appellants/claimants are entitled for compensation under the Workmen Compensation Act, 1923 even though they are not entitled for compensation under the Motor Vehicles Act, in accordance with ratio laid down in the aforesaid decisions.

5. Learned counsel for the Appellants/claimants would also submit that separate insurance premium has also been paid for the driver of the vehicle by the first respondent and hence, the Appellants /claimants are entitled for compensation to be paid in accordance with the provisions of Workmen Compensation Act, 1923. According to him, having not disputed the employer-employee relationship, the second respondent Insurance Company is liable to pay the compensation as per the provisions of Workmen Compensation Act, 1923, but the Tribunal erroneously without applying the settled position of law, has awarded only a meager compensation of Rs.50,000/- to the Appellants/claimants under section 140(1) of the Motor Vehicles Act on no fault liability basis.

6. The decisions relied upon by the learned counsel for the Appellants referred to supra have categorically held that though the claim have been filed under section 166 of the Motor Vehicles Act, the Tribunal is having the power to convert the same to a claim under the Workmen Compensation Act, and grant compensation whenever the insured has paid insurance premium for an authorised employee of the vehicle. In the case on hand, separate insurance premium of Rs.25/- has been paid by the first respondent to the second respondent to cover the case of the deceased who was a driver employed by the first respondent. As seen from the evidence available on record, the second respondent has also not disputed the employer-employee relationship. Hence, the Tribunal by total non application of mind to the settled position of law has not converted the claim filed under section 166 of the Motor Vehicles Act to a claim filed under the provisions of Workmen Compensation Act. Therefore, this Court is of the considered view that the Tribunal has erroneously granted a meager compensation of Rs.50,000/- to the A