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1996 JLJ 668
S.K. Dubey and T.S. Doabia, JJ.
Baby (Mst.) and others v. Sana Khan and another
Misc. Appeal No. 277 of 1994; against the award passed by Shri D.S. Jain,
Member, Accident Claims Tribunal, Morena, in Claim Case No.1 of 1991;
Decided on 23.3.1996.
The word "use" has been used in a wider sense to cover all engagements of the motor vehicle, including driving, parking, keeping stationary, repairing, leaving unattended on the road or for any other purposes. Even in a case when vehicle is being driven and is stopped or parked for being repaired, it cannot be said that the vehicle is not being used. 1991 ACJ 101, 1979 ACJ 452 and 1980 ACJ 248 relied on. [Para 6
(2) Motor Vehicles Act, 1988 -- S. 166 – Workmens" Compensation Act, 1923 -- S. 22 -- driver of the motor vehicle dying in accident -- accident caused due to remissness of the owner of vehicle in not getting the vehicle repaied -claims rightly entertained under Motor Vehicles Act.
For invoking the jurisdiction seeking the claim all that has to be established is that the claim should be in respect of the accident involving the death of, or bodily injury to, persons caused or contributed by the use of motor vehicle whether wholly or conjointly with some third party. The Court also observed that when the word ‘third party‘ is used, it means other than the driver or owner. 1988 ACJ 597, 1990 ACJ 597 and 1993 ACJ 25 relied on. [Paras 7 & 8
(3) Motor Vehicles Act, 1988 -- S.165 -- accident caused due to mechanical defect-- owner of the vehicle should prove that defect was latent and not discoverable by the use of reasonable care. 1977 ACJ 118 (SC) followed. 1970 ACJ 1 and AIR 1990 HP 53 relied on. [Paras 9 & 10
(4) Highway -- motor vehicle on State Highway -- speed of 60 km. per hour is not excessive. [Para 11
(5) Motor Vehicles Act, 1988 -- S.168 -- deceased left 6 members -- earning Rs. 1,000/- p.m. -- Rs.700/- must be assessed as dependency -- aged 30 years -multiplier of 15 should be adopted -- including Rs. 10,000/- as consortium to widow family/claimant entitled to Rs. 1,40,000/- -- interest at the rate of 12% p.a. also awarded. [Para 12
(6) Motor Vehicles Act, 1988 -- S.171 -- rate of interest awarded at the rate of 12% if amount paid within certain period -- enhanced to 18% if paid beyond the fixed period limits. [Para 12
¼1½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 165 ¼1½ & in ^^eksVj ;ku ds mi;ksx ls mn~Hkwr** && ‘‘kCn ^^mi;ksx** dk ç;ksx foLr`r vFkZ esa fd;k x;k gSA
‘‘kCn ^^mi;ksx** O;kid vFkZ esa ç;qDr fd;k x;k gS fd mlesa pkyku] ikfd±x] [kMs+ j[kuk] ejEer] lM+d ij vkjf{kr NksM+uk vFkok vU; fdlh ç;kstu lfgr eksVj ;ku dh leLr fu;qfDr;k¡ vkPNkfnr gSaA ,slh n‘kk esa Hkh tc ;ku pyk;k tk jgk gS vkSj ejEer ds fy, jksdk ;k ikdZ fd;k tkrk gS] ;g ugha dgk tk ldrk fd ;ku dk mi;ksx ugha gks jgk gSA 1991 , lh ts 101] 1979 , lh ts 452 rFkk 1980 , lh ts 248 voyafcrA ¿iSjk 6
¼2½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 166 & deZdkj çfrdj vf/kfu;e] 1923 & /kkjk 22 & eksVj ;ku dk pkyd nq?kZVuk esa e`r & nq?kZVuk ;ku dh ejEer ugha djkbZ tkus dh Lokeh dh ykijokgh ds dkj.k gqbZ & nkoksa ij eksVj ;ku vf/kfu;e ds v/khu fopkj Bhd gh fd;k x;kA
nkos dh bZIlk ds fy, vf/kdkfjrk dk vkJ; ysus ds fy, dsoy ;g LFkkfir fd;k tkuk gksrk gS fd nkok O;fDr;ksa dh e`R;q vFkok ‘kkjhfjd {kfr varxZLr djus okyh nq?kZVuk ds ckjs esa gksuk pkfg, tks pkgs laiw.kZr% vFkok fdlh ijO;fDr }kjk lg;qDr :i ls eksVj ;ku ds mi;ksx ls dkfjr vFkok vfHknkf;r gksA U;k;ky; us ;g leqfDr Hkh dh fd tc ‘‘kCn ^^ijO;fDr** ç;qDr fd;k tkrk gS] mldk vFkZ pkyd vkSj Lokeh dks NksM+dj vU; O;fDr gksrk gSA 1988 , lh ts 597] 1990 , lh ts 597 rFkk 1993 , lh ts 25 voyafcrA ¿iSjk 7 rFkk 8
¼3½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 165 & nq?kZVuk ;kaf=d =qfV ds dkj.k gqbZ & ;ku ds Lokeh dks lkfcr djuk pkfg, fd =qfV Nqih gqbZ Fkh vkSj ;qfDr;qDr lko/kkuh ds mi;ksx ls <w¡<h ugha tk ldrh FkhA 1977 , lh ts 118 ¼mPpre U;k-½ vuqlfjrA 1970 , lh ts 1 rFkk , vkb vkj 1990 fg-ç- 53 voyafcrA ¿iSjk 9 rFkk 10
¼4½ jktiFk & eksVj ;ku jkT; jktiFk ij & 60 fd-eh- xfr vR;f/kd ugha gSaA ¿iSjk 11
¼5½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 168 & e`rd us 6 lnL; ihNs NksM+s & miktZu #- 1]000@& çfrekl & #-700@& vkfJrrk fu/kkZfjr dh gh tkuk pkfg, & vk;q 30 o"kZ & 15 dk xq.kd viuk;k tkuk pkfg, & lkgp;Z ds fy, fo/kok dk #- 10]000@& lfEefyr djrs gq, dqVqack nkosnkj #- 1]40]000@& ds gdnkj gSa & 12 izfr‘kr çfro"kZ dh nj ls C;kt Hkh vf/kfu.khZrA ¿iSjk 12
¼6½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 171 & jde fof‘k"V le; ds Hkhrj lanÙk dh tkus ij & C;kt dh nj 12 izfr‘kr çfro"kZ vf/kfu.khZr & fu;r vof/k ds i‘pkr~ lank; fd, tkus ij C;kt 18 izfr‘kr çfro"kZ rd vfHko`)A ¿iSjk 12
T.S. Doabia, J. -- 1. The claimants, in this appeal, preferred under section 173 of the Motor Vehicles Act, 1988, are not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal. They seek enhancement. The amount determined by the Tribunal is said to have been paid to the appellants-claimants. No cross appeal or cross objections have been filed. The respondent New India Insurance Company has thus agreed to abide by the award. Even though no cross-objections have been preferred to this appeal, learned counsel appearing for the Insurance Company has argued that this was a case where in fact no compensation could be awarded at all and he submitted that the question of enhancement would not arise. According to him, claimants are heirs of the driver of the ill fated Tempo. This tempo suffered an accident on account of it being not kept in proper running condition. The question raised is that the claimants could not claim any compensation under the Motor Vehicles Act 1988 though they could have sought their remedy under the Workmen's Compensation Act, 1923. It is this issue which is also being examined in this appeal. Before doing so, facts in brief be noticed. One Sona Khan, respondent No. 1 is the owner of the Tempo No. CPJ 2975. Mustkim Khan whose heirs are the appellants herein, was the driver. This tempo was on its away from Jora to Morena. At about 9.30 a.m. on 5th December, 1991 this tempo turned turtle. It fell on Mustkim Khan. He suffered several injuries and died before medical aid could be given to him.
2. The Motor Accident Claims Tribunal (for short 'the Tribunal) has recorded the following findings.
(i) That Mustkim Khan died in an accident involving Tempo bearing No. CPJ 2975 on 5.12.1991
(ii) That the accident did take place on account of the negligence of the owner in not keeping the Tempo in Road worthy condition
(iii) That the appellants/claimants are the heirs of Mustkim Khan.
(iv) That on account of the failure of the (Gulli) tie and rod fitted in the steering wheel the accident took place.
(v) the owner of the vehicle was remiss in keeping the tempo in road worthy condition and on account of this lapse on the part of the owner, heirs of the driver are entitled to compensation.
(vi) The income of the driver was fixed at Rs. 1,000/- per month. It was, however, recorded that he was contributing only 50 percent of the above amount to the family. The multiplier of 14 was applied and compensation was assessed at 84,000/-. The award is silent about loss of consortium.
3. Before considering the legal argument raised by the learned counsel for the Insurance Company, evidence regarding the condition of the vehicle and the circumstances under which the accident took place, be again noticed. The claimants in their claim application merely stated that the tempo in question was not maintained in proper condition and on account of serious mechanical fault, it turned turtle causing the death of the driver Mustikim Khan. The widow when appeared in the witness box made a statement to the effect that there was some defect in the steering of the tempo and that he (driver) had lodged the complaint with its owner. He ~as on his way to Morena with a view to leave the tempo with Its owner. Rashid (PW 4) has also testified to the effect that the deceased Mustkim Khan told him that there is some defect in the steering of the tempo and he is going to leave the same with its owner. This witness was in the tempo on that date. He was unhurt. He stated that the deceased did tell to the owner of the tempo that he should get it repaired but the owner did not pay any heed to this. A suggestion was made to this witness that at the time of the accident the tempo was going at a speed of 60 to 70 km. per hour. The witness denied this suggestion. Atarsingh Tomar has appeared as P.W. 1. He is an employee of the Police Department attached with Motor Vehicle Branch. He has examined the tempo on 10.12.1991. He s
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