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1992 JLJ 188
R.K. Varma, J.
Jogendrasingh v. Gulsherkhan and others
Misc. Appeal No. 123 of 1983; Decided on 15.11.1991.
In paragraph 5 of the claim petition, the pleading is to the effect that the tractor-owner i.e. the appellant had not kept the tractor in question in good repairs and as such, it developed defect and for this reason because of the negligence on the part of the appellant No.1, the vehicle was involved in the accident and the deceased sustained injuries and died in the accident. In paragraph 2 of the claim petition it is alleged that the deceased was driving the tractor in question with care, but due to defect developed in the tractor after travelling a small distance, the tractor met with an accident, Thus, on facts alleged as above, it cannot be said that the claim petition does not contain the allegation of negligence and as such, is not maintainable before the Motor Accident Claims Tribunal. 1972 ACT 21 and 1990 ACT 1 distinguished. [Para 10
(2) Motor Vehicles Act, 1939 -- S. 110 B -- award of compensation -- employee-driver dying in accident -- Tribunal may assess the amount of compensation according to provisions of Workmen‘s Compensation Act. 1987 ACJ 588 distinguished. [Para 12
(3) Workmen‘s Compensation Act, 1923 -- S. 4 and Sch. IV -- claim petition before the Motor Accident Claims Tribunal -- employee dying in accident -- claim may be awarded in accordance with these provisions.
In case of an employee of the vehicle-owner who is governed by the Workmen‘s Compensation Act, 1923, the method of compensation is provided in Schedule IV of that Act. I, therefore, see no reason why this schedule cannot be adopted as a mode of assessment of compensation payable in respect of the death of the deceased who was an employee covered under the definition of the workman given in that Act. In fact, any other mode of computation of compensation on the allegation of fault on the part of the vehicle-owner-employer should yield the quantum of compensation not less than what is statutorily provided as compensation for the Workmen under the Workmen‘s Compensation Act, irrespective of consideration of fault. 1987 ACJ 580 distinguished. [Para 12
(4) Motor Vehicles Act, 1939 -- S. 96 -- defences open to insurer u should be proved by it -- driver dying in accident -- plea that he was not holding licence has to be proved by insurer.
It is a settled principle that the burden of proof is on the Insurance company to prove the breach of condition of the policy and if the condition is that the vehicle must be driven by a ‘Iicensed driver, the burden should be upon the Insurance Company to establish that the vehicle was being driven by an unlicensed driver and more so, when the driver himself dies in the accident and is not available for being examined as a. witness. AIR 1990 SC 1979 followed. [Para 14
¼1½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110d && izfrdj dk vkosnu && mis{kk dk vfHkokd~ fd ;ku mlds Lokeh }kjk lgh gkyr esa ugha j[kk x;k && ekeys dks bl mica/k ds v/khu yksu ds fy, i;kZIr gSA
nkok ;kfpdk esa iSjk 5 esa] vfHkopu bl izHkko dk gS fd VSªDVj Lokeh vFkkZr~ vihykFkhZ us iz‘uxr VSªDVj lgh gkyr esa ugh j[kk Fkk rFkk bl izdkj] mlesa =qfV mRié gks xbZ rFkk blfy, vihykFkhZ Ø- 1 dh vksj ls mis{kk ds dkj.k] ;ku nq?kZVukxzLr gqvk rFkk e`rd dks {kfr;k¡ dkfjr gqbZ rFkk og nq?kZVuk esa ekjk x;kA nkok ;kfpdk ds iSjk 2 esa vfHkdfFkr fd;kx;k gS fd e`rd rks iz‘uxr VSªDVj lko/kkuh ls pyk jgk Fkk] fdarq FkksM+h nwjh r; djus ds i‘pkr~ VSDVj esa mRiUu =qfV ds dkj.k] VSDVj nq?kZVukxzLr gks x;kA vr% Åij vfHkdfFkr rF;ksa ij] ;g ugha dgk tk ldrk fd nkok ;kfpdk esa mis{kk dk vfHkdFku varfoZ"V ugha gS rFkk bl izdkj] og eksVj nq?kZVuk nkok vf/kdj.k ds le{k pykus ;ksX; ugha gSA 1972 , lh ts 21 rFkk 1990 , lh ts 1 izHksfnrA ¿ in 10À
¼2½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110[k && izfrdj dk vf/kfu.kZ; && deZpkjh&Mªkboj dh nq?kZVuk esa e`R;q && vf/kdj.k deZdkj izfrdj vf/kfu;e ds mica/kksa ds vuqlkj izfrdj dh jde fu/kkZfjr dj ldrk gSA 1987 , lh ts 588 izHksfnrA
¿ iSjk 12À
¼3½ deZdkj izfrdj vf/kfu;e] 1923 && /kkjk 4 rFkk vuqlwph 4 && eksVj nq?kZVuk nkok vf/kdj.k ds le{k nkok ;kfpdk & nq?kZVuk esa deZpkjh dh e`R;q && nkok bu mica/kksa ds vuqlkj vf/kfu.khZr fd;k tk ldrk gSA
;ku&Lokeh ds fdlh deZpkjh ds ekeys esa tks fd deZdkj izfrdj vf/kfu;e }kjk fofu;fer gS] izfrdj dk <ax mlh vf/kfu;e dh vuqlwph 4 esa micaf/kr gSA blfy,] eq>s dksbZ ,slk dkj.k ugha fn[krk fd ;g vuqlwph ml e`rd dh e`R;q ds laca/k esa ns; izfrdj ds fu/kkZj.k ds <ax esa vaxh—r D;ksa ugha dh tk ldrh tksfd ml vf/kfu;e esa nh xbZ deZdkj dh ifjHkk"kk ds v/khu vkus okyk deZpkjh FkkA okLro esa] ;ku&Lokeh && fu;kstd dh vksj ls =qfV ds vfHkdFku ij izfrdj dh lax.kuk ds dksbZ vU; <ax }kjk izfrdj dh ek=k deZdkj izfrdj vf/kfu;e ds v/khu deZdkj ds fy, izfrdj ds :i esa dkuwuh rkSj ij ftruk micaf/kr gS] =qfV dks fopkj esa yk, fcuk mlls de izkIr ugha gksuk pkfg,A 1987 , lh ts 580 izHksfnrA
¿ iSjk 12À
¼4½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 96 && chekdrkZ dks miyC/k izfrj{kk && mlds }kjk lkfcr dh tkuk pkfg, && Mªkboj dh nq?kZVuk esa e`R;q && vfHkokd~ fd og vuqKfIr/kkjh ugha Fkk chekdrkZ }kjk lkfcr fd;k tkuk gksrk gSA
;g LFkkfir fl)kar gS fd ikfylh dh ‘krZ dk Hkax lkfcr djus dk Hkkj chek daiuh ij gS rFkk ;fn ‘krZ gS fd ;ku vuqKfIr/kkjh O;fDr }kjk gh pyk;k tkuk gS] ;g LFkkfir djus dk Hkkj chek daiuh ij gksuk pkfg, fd ;ku fcuk vuqKfIr /kkjd }kjk pyk;k tk jgk Fkk rFkk vkSj vf/kd] tc Mªkboj Lo;a dh nq?kZVuk esa e`R;q gks tkrh gS rFkk lk{kh ds :i esa ijh{kk ds fy, og miyC/k ugha gSA , vkb vkj 1990 ,l lh 1979 vuqlfjrA ¿ iSjk 14À
R.K. Varma, J. -- This order shall also govern the disposal of Misc. Appeal No. 159/83 (Rajpal and Company v. Gulsherkhan and others).
2. This is an appeal filed by the owner of the offending vehicle (tractor-trolley) bearing registration No. MPN 6300 against the Award dated 4.4.83 made by the Member Motor Accident Claims Tribunal, Mandleshwar in Claim Case No. 36/80 whereby the learned Tribunal has awarded a total compensation of Rs. 18,000/- in respect of the death of the deceased employee Mukhtyarkhan, who died in the motor accident on 16.12.1979, while driving the said tractor.
3. The facts of the case, giving rise to this appeal, briefly, stated are as follows:-
The deceased Mukhtyarkhan was in the employment of the appellant at the petrol pump belonging to the appellant Jogendrasingh S/o Tejasingh Rajpal under the name Rajpal and Company on a salary of Rs. 210/- per month for retail sale of petrol and for driving the tractor etc., On 16.12.79, the date of accident, the tractor- trolley bearing registration No. MPN 6300 was being driven by the deceased Mukhtyarkhan on Sendhwa-Barla road for fetching wood. He met with an accident and suffered serious injuries. He was removed to the District Hospital at Barwani for treatment, but he succumbed to his injuries and died in the hospital on 17.12.79.
4. According to the claim of the claimants who are the legal representatives of the deceased, the said Mukhtyarkhan was carefully driving the tractor-trolley on Sendhwa-Barla road, but since the tractor was not kept in good repairs, it developed mechanical defect and went out of control resulting an accident in which the deceased Mukhtyarkhan received injuries to which he succumbed. It is the case of the claimants that the owner of the tractor in question which stood insured with the Insurance Company-respondent No.8 on the date of accident and that the appellant being the owner of the tractor and employer of the deceased Mukhtyarkhan is liable to pay compensation and that the respondent No. 8 Insurance Company having insured the owner in respect of the tractor in question, during the material period covering the date of accident is also liable jointly and severally.
5. The appellant resisted the claim and took the plea that he was not carrying on the business directly with the Rajpal and Company- respondent No.7 and that the deceased was not in his employment. Another written-statement was filed on behalf of Rajpal and Company respondent No.7 taking the plea that the tractor did not belong to it and the deceased was not employed for driving the tractor.
6. The respondent No.8 Insurance Company took the plea that the deceased was not possessed of - driving licence and as such the Insurance Company was not liable. It is also the defence of the Insurance Company that the Tribunal had power to award compensation only in accordance with the provisions of Fatal Accidents Act and not under the Workmen's Compensation Act.
7. The learned Tribunal, after trial of the claim petition, on the basis of the evidence adduced in the case, found that the c1aimants were legal representatives of the deceased Mukhtyarkhan, that the deceased Mukhtyarkhan was driving the tractor in question in the course of his employment and that the tractor met with an accident on account of fault developed in the tractor, resulting in the death of the deceased Mukhtyarkhan. The learned Tribunal held that the Tribunal has jurisdiction to make an Award in the instant case and that the appellant and respondent No.7 were liable under the Motor Vehicles Act and awarded a total compensation of Rs. 18,000/- in respect of the death of the deceased Mukhtyarkhan against the appellant and - respondent No.8, the learned Tribunal found that the Insurance Company was not liable since it was not proved that the deceased Mukhtyarkhan was a licensed driver.
8. Being aggrieved by the Award, the tractor-owner has filed this appeal. The respondent No.7 Rajpal and Company has also filed the
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