BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.1556 of 2000 Rajan Kuttil Nayar alias Rajan Pillai .. Appellant Vs. 1.Tamil Nadu State Transport Corporation, (Madurai Division 2) Ltd., through its Managing Director, Vallarpettai, Tirunelveli. 2.Mahaboob 3.United India Insurance Co. Ltd., Panthalam Thitta Branch, Kerala State. .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the decree and order dated 20.04.2000 made in M.C.O.P.No.163 of 1995 on the file of the Motor Accident Claims Tribunal, Additional Subordinate Judge, Tenkasi. !For Appellant ... Mr.Abdul Wahab ^For 1st Respondent ... Mr.D.Sivaraman For Mr.Rajnish Pathiyil For 3rd Respondent ... Mr.G.Prabhu Rajadurai For Mr.R.Kumara Raja :JUDGMENT
This appeal is directed against the judgment and decree of the Motor
Accident Claims Tribunal, (Additional Subordinate Judge), Tenkasi, dated
20.04.2000 made in M.C.O.P.No.163 of 1995.
2. The unsuccessful claimant in M.C.O.P.No.163 of 1995 before the Motor
Accident Claims Tribunal, (Additional Subordinate Judge), Tenkasi is the
appellant herein. Pursuant to an accident that took place on 04.11.1994, the
appellant/claimant preferred the above said claim petition under Sections 166
and 140 of the Motor Vehicles Act claiming a sum of Rs.1,00,000/- as
compensation from the respondents herein. The appellant/claimant was the driver
of one of the vehicles involved in the accident, the lorry bearing registration
No.KEK-8569, of which the second respondent was the owner and the third
respondent was the insurer during the relevant period. On the above said date at
about 02.50 p.m. at a place on the east of old Alangulam bus stop, the said
vehicle driven by the appellant/claimant involved in a head-on collision with
the passenger bus belonging to the first respondent Transport Corporation having
Registration No.TN-72-N-0251. Contending that there was no fault on the part of
the appellant/claimant and that while he was driving the lorry carefully at a
moderate speed, the driver of the bus belonging to the first respondent drove it
in a rash and negligent manner and caused the accident by hitting the lorry
driven by the claimant on its front side; that the said accident took place
solely due to the rash and negligent act on the part of the driver of the first
respondent and that in the said accident, the appellant/claimant sustained
grievous injuries which later on led to permanent disability, the
appellant/claimant preferred M.C.O.P. However, the appellant/claimant chose to
make the claim against all the three respondents praying for an award directing
them to jointly and severally pay the above said sum of RS.1,00,000/- together
with an interest at the rate of 12% per annum from the date of claim till
realisation and with costs.
3. The claim was resisted by the first respondent Transport Corporation
contending that it was the appellant/claimant who acted with rashness and
negligence in driving the lorry; that only due to his rash and negligent
driving, he met with the accident; that there was no rashness or negligence on
the part of the driver of the bus belonging to the first respondent and that
hence the appellant/claimant was not entitled to get any amount as compensation
from the first respondent Transport Corporation. The second respondent, owner of
the lorry involved in the accident, of which the appellant/claimant was the
driver did not contest the claim and remained exparte. The third respondent
herein, insurer of the said lorry resisted the claim contending that the
appellant/claimant shall not be entitled to make any claim against the owner of
the vehicle and the insurer of the vehicle,as the accident itself took place due
to his own negligence. It was also contended before the Tribunal on behalf of
the third respondent that he was debarred from making any claim for
compensation under the Workmen’s Compensation Act, since the appellant/claimant
had exercised his option to make a claim under the provisions of the Motor
Vehicles Act and that no award could be passed against either the second
respondent or the third respondent in such circumstances under the Workmen’s
Compensation Act.
4. In order to sustain his claim, the appellant/claimant, besides
examining himself as P.W.1, examined Dr.Veda Moorthy as P.W.2 and relied on
seven documents marked Exs.A.1 to A.7. On the side of the respondents, only one
witness was examined as R.W.1 and no document was marked.
5. At the conclusion of enquiry, after hearing the arguments advanced on
both sides and framing necessary points for consideration, the Tribunal
scrutinised the evidence on record, both oral and documentary and dismissed the
claim in its entirety. The Tribunal held that: (i) there was no negligence on
the part of the driver of the bus belonging to the first respondent Transport
Corporation; (2) the appellant/claimant alone was at fault and it was due to his
rashness and negligence, the accident took place; (3) the first respondent
Transport Corporation was not liable to pay any compensation and (4) the claim
against the second and third respondents should also fail because the
appellant/claimant could not claim compensation under the Motor Vehicles Act
against his employer for his own fault and compensation under Workmen’s
Compensation Act also could not be awarded by the Tribunal, as the
appellant/claimant had exercised his option to make the claim under the
provisions of the Motor Vehicles Act. In line with the above said findings, the
Tribunal dismissed M.C.O.P. in its entirety by its Judgment dated 20.04.2000.
6. Aggrieved by and challenging the above said Judgment and decree of the
Tribunal dated 20.04.2000, the appellant/claimant has brought forth this civil
miscellaneous appeal.
7. Advancing arguments on behalf of the appellant, the learned counsel
would submit that the Tribunal committed an error in holding the
appellant/claimant alone was responsible for the accident; that the Tribunal
failed to properly appreciate the evidence and come to a correct conclusion
regarding the question of negligence; that the finding of the Tribunal to the
effect that there was no negligence on the part of the driver of the bus and
that it was only due to the negligence on the part of the appellant/claimant the
accident took place is against law and evidence and that hence the said finding
of the Tribunal should be upset in the hands of this Court. Contending further,
the learned counsel for the appellant would submit that even assuming that the
appellant/claimant had not substantiated his contention regarding the negligence
on the part of the driver of the bus, the award of the Tribunal could not be
legally sustained in so far as the Tribunal failed to uphold the respondents’
liability at least to the extent of the no fault liability provided under
Section 140 of the Motor Vehicles Act and that viewed from any angle, the
Judgment and decree of the Tribunal could not stand the scrutiny of law and that
hence the same should be set aside and an award should be passed as prayed for
by the appellant/claimant.
8. The Court heard the arguments advanced by the learned counsel for the
first and third respondents in reply to the above said submissions made on
behalf of the appellant and paid its anxious considerations to the same.
9. The fact that the accident took place on 04.11.1994 in which the
appellant/claimant sustained injuries is not in dispute. It was an accident
involving collision of two vehicles proceeding towards the spot of accident from
two different directions. The passenger bus bearing registration No.TN-72-N-0251
belonging to the first respondent was proceeding on the east-west road in the
direction of east to west. The appellant/claimant was driving the other vehicle
involved in the accident, namely, the lorry bearing registration No.KEK-8569
belonging to the second respondent, in the opposite direction – from west to
east. At the place of accident, the front right side corner part of both the
vehicles came into contact with each other. All the above said facts are not
disputed. Who was responsible for the accident and which of the true drivers was
at fault is the bone of contention in this case. According to the
appellant/claimant, it was the driver of the bus belonging to the first
respondent who drove the bus in a rash and negligent manner and caused the
accident. But according to the contesting respondents, namely, the respondents 1
and 3, there was no fault on the part of the driver of the bus and it was due
to the negligence on the part of the appellant/claimant in driving the lorry,
the accident took place. In support of their rival contentions, one witness each
was examined on either side. They are: P.W.1, the claimant himself and R.W.1,
the driver of the bus belonging to the first respondent. Of course, both the
witnesses are interested witnesses. Therefore, before accepting their testimony,
the test of careful scrutiny should be applied.
10. The appellant/claimant, while deposing as P.W.1, would contend that he
was proceeding in the direction of west to east driving the lorry carefully and
at a moderate speed and that it was the driver of the bus which came in the
opposite direction drove it at a high speed with rashness and negligence, dashed
it against the lorry and thus caused the accident. But except the fact that the
appellant/claimant was acquitted in the criminal case registered against him by
the police, there is no other document to corroborate his evidence and support
his case that the accident was due to the rash and negligent driving of the bus
belonging to the first respondent. Ex.A.1 is the certified copy of the licence
to show that the appellant/claimant possessed a valid driving licence at the
time of accident. Ex.A.2 is the certified copy of the First Information Report
registered by the police concerning the accident in question. A case was
registered based on the complaint of the conductor of the first respondent’s bus
in Crime No.727 of 1994 on the file of Alangulam Police Station against the
appellant/claimant for offences punishable under Sections 279 and 337 IPC.
Ex.A.3 is the accident register issued to the appellant/claimant. The said
document is not helpful to arrive at a decision who was at fault. Ex.A.4 is the
certificate copy of the Motor Vehicle Inspector’s report which shows that the
front right side body of both the vehicles were found damaged at the time of
inspection and that the accident was not due to any mechanical defect in either
of the vehicles involved in the accident. The same also does not lend any help
to the appellant/claimant to prove his contention that the driver of the bus was
at fault.
11. The relevant documents are Exs.A.2 and A.5 to A.7. Among the four
documents, Ex.A.7 is the certified copy of the Judgment of the criminal Court by
which the appellant/claimant was acquitted in the criminal case registered in
connection with the accident. Ex.A.6 is the certified copy of the charge sheet.
From Exs.A.6 and A.7, it is obvious that the appellant/claimant was prosecuted
for offences punishable under Sections 279,337 and 338 IPC and was at last
acquitted in the criminal case. The acquittal was not an honourable acquittal
but was one giving the benefit of doubt to the accused. It is well established
principle that the Judgment of the criminal Court is not binding on the civil
Court or the Tribunal and the same is not even relevant in a civil case or a
motor accident claim case, except to the extent of showing that there was a
prosecution which ended in conviction or acquittal. There may be many reasons
for a criminal case ending in acquittal. The decree of proof required in a
criminal case is proof beyond reasonable doubt, whereas in civil cases and motor
accident claim cases, it is not so. There, the issues are to be decided on
probabilities. Therefore, there is no force in the contention of the learned
counsel for the appellant that the Tribunal ought to have relied on Ex.A.7 and
found the appellant/claimant not at fault and as a necessary corollary should
have held the driver of the bus to be at fault. The said contention is liable to
be discountenanced. At least against the appellant/claimant, there was the
accusation of having caused the accident by rash and negligent driving of the
vehicle, whereas there was no such accusation against the driver of the bus. In
fact, since the driver of the bus had got injured, the conductor went to the
police station and lodged the complaint, based on which the case was registered
against the appellant/claimant. The same is evidenced from Ex.A.2.
12. It is a fact, that could be ascertained from the records that the
appellant/claimant did not lodge any complaint with the police regarding the
accident in this case. But while deposing as P.W.1, the appellant/claimant had
gone to the extent of stating that after the accident he went to Alangulam
Police station and lodged a complaint and that he was sent by the police to the
hospital only after receiving his complaint. It is very hard to believe and
accept the said evidence of P.W.1 in the absence of any other corroborating
evidence, when it directly contradicts with the documentary evidence produced on
the side of the appellant/claimant himself. The very attempt made by the
appellant/claimant to set a concoction will improbabalise his case and
probabalise the contention of the respondents. Ex.A.5 – certified copy of the
observation mahazar will disprove the contention of the appellant/claimant in
this regard and lends support to the case of the respondents that it was the
appellant/claimant who was at fault. It is evident from Ex.A.5 that the total
width of the road including mud road (on either side to a width of six feet) was
34 feet and the tar portion alone was 22 feet. The bus was found on its proper
(left side of the road) and it was the lorry that had gone to its wrong side
(right side of the road) and dashed against the bus. Tyre marks of the bus to a
length of 7 feet was found behind the bus showing that the driver of the bus
applied break before the impact. On the other hand, no tyre-mark was found
behind the lorry. It goes to show that it was the driver of the lorry who came
in a rash and negligent manner and dashed against the bus. The particulars found
in Exs.A.2 and A.4 lend corroboration to the testimony of R.W.1, the driver of
the bus involved in the accident. His evidence has withstood the test of careful
scrutiny. As the evidence of R.W.1 stands corroborated by the contents of
Exs.A.2 and A.5, the documents produced on the side of the appellant/claimant
himself, there is no reason, whatsoever, to disbelieve the evidence of R.W.1 and
reject it. The Tribunal, after carefully scrutinising the evidence adduced on
both sides and marshalling the same in a proper perspective, has come to a
correct conclusion that there was no negligence on the part of the driver of the
bus and it was the appellant/claimant who alone was at fault. The well
considered finding of the Tribunal regarding the question of negligence cannot
be interfered with and the same deserves to get the stamp of approval of this
Court. As the finding of the Tribunal regarding the question of negligence is
upheld, the rejection of the claim of the appellant/claimant for compensation
against the first respondent Transport Corporation based on the theory of fault
should also be sustained.
13. The learned counsel for the appellant/claimant contended that even if
the appellant/claimant was at fault, as Section 167 of the Motor Vehicles Act
provides for making a claim for compensation either under the provisions of the
Motor Vehicles Act or under the provisions of the Workmen’s Compensation Act,
the claim against the second and third respondents should have been dealt with
and the compensation should have been awarded under the provisions of the
Workmen’s Compensation Act. In support of his contention, the learned counsel
relied on the Judgment of the single Judge of Madras High Court in National
Insurance Company Ltd., v. V.Velammal reported in [2000(3) CTC 291]. In the said
Judgment, it was held that the liability of the insurance company shall be
determined not only with reference to the provisions of the Motor Vehicles Act
but also with reference to the contract of insurance if it extends to the
liability of the insured under the Workmen’s Compensation Act and that even
though the claim made under the Motor Vehicles Act could not be sustained, it
would be proper to assess the damages under the Workmen’s Compensation Act and
to award the same in favour of the claimant.
14. In answer to the above said submissions made by the learned counsel
for the appellant, the learned counsel for the third respondent cited a recent
judgment in Manoharan v. D.Kannan reported in [2006(4) MLJ 1105] in which a
single Judge of the Madras High Court on facts has held as follows:
“The claimant having chosen the Forum under the Motor Vehicles Act for the
purpose of obtaining compensation cannot now fall back upon the provisions of
the Workmen’s Compensation Act. When the cause of action arises under different
statutes and the claimant/appellant elected the forum under the Motor Vehicles
Act in preference to the Workmen’s Compensation Act, he cannot be thereafter
permitted to raise contention which is available to him only under the Workmen’s
Compensation Act.”
15. The learned counsel also relied on the judgment of the Honourable
Supreme Court pronounced in National Insurance Company v. Mastan reported in
[2006(1) ACC 1 (SC)]. In the said case, the Honourable Supreme Court after
referring to its earlier decisions in Nagubai Ammal and others v. B.Shama Rao
and others (AIR 1956 SC 593), C.Beepathuma and others v. Velasari
Shankaranarayana Kadambolithaya and others (AIR 1965 SC 241), P.R.Deshpande v.
Maruti Balaram Haibatti, [1998(6) SCC 507] and Devasahayam (Dead) By Lrs. v.
P.Savithramma and others [2005(7) SCC 653], has held that Section 167 of the
Motor Vehicles enshrines such a principle of election and that a claimant
electing to proceed under any one of the two acts (Motor Vehicles Act and
Workmen’s Compensation Act), excepting to the extent of exemption provided under
Section 143 of the Motor Vehicles Act which was applicable only to Chapter X of
the Motor Vehicles Act, cannot fall back on the other statute to sustain his
claim. The extracts of the observations made by the Honourable Supreme Court
are given as under for the purpose of proper appreciation:
“On the establishment of a Claims Tribunal in terms of Section 165 of the
Motor Vehicles Act, 1988, the victim of a motor accident has a right to apply
for compensation in terms of Section 166 of that Act before that Tribunal. On
the establishment of the Claims Tribunal, the jurisdiction of the Civil Court to
entertain a claim for compensation arising out of a motor accident, stands
ousted by Section 175 of that Act. Until the establishment of the Tribunal, the
claim had to be enforced through the Civil Court as a claim in tort. The
exclusiveness of the jurisdiction of the Motor Accident Claims Tribunal is taken
away by Section 167 of the Motor Vehicles Act in one instance, when the claim
could also fall under the Workmen’s Compensation Act, 1923. That section
provides that death or bodily injury arising out of a motor accident which may
also give rise to a claim for compensation under the Workmen’s Compensation Act,
can be enforced through the authorities under that Act, the option in that
behalf, being with the victim or his representative. But Section 167 makes it
clear that a claim could not be maintained under both the Acts. In other words,
a claimant who becomes entitled to claim compensation both under the Motor
Vehicles Act, 1988 and under the Workmen’s Compensation Act, because of a motor
vehicle accident has the choice of proceeding under either of the Acts before
the concerned Forum. By confining the claim to the authority or the Tribunal
under either of the Acts, the Legislature has incorporated the concept of
election of remedies, insofar as the claimant is concerned. In other words, he
has to elect whether to make his claim under the Motor Vehicles Act, 1988 or
under the Workmen’s Compensation Act, 1923. The emphasis in the section that a
claim cannot be made under both the enactments, is a further reiteration of the
doctrine of election incorporated in the scheme for claiming compensation. The
principle “where, either of two alternative Tribunals are open to a litigant,
each having jurisdiction over the matters in dispute, and he resorts for his
remedy to one of such Tribunals in preference to the other, he is precluded, as
against his opponent, from any subsequent recourse to the latter”.
16. In view of the above said Judgment of the Honourable Supreme Court
laying down the proposition that a claimant who exercises his option of
selection of forum under Section 167 of the Motor Vehicles Act, which provision
alone gives an exemption from the jurisdiction of the Motor Accident Claims
Tribunal to make a claim under the Workmen’s Compensation Act in respect of an
accident arising out of the use of a motor vehicle, by electing to make a claim
before the Commissioner for Workmen’s Compensation under the provisions of the
Workmen’s Compensation Act or by making a claim under Chapter XI of the Motor
Vehicles Act before the Motor Accident Claims Tribunal, then, he cannot fall
back on the other statute and claim compensation its provisions, in case his
claim under the provisions of statute selected by him was bound to fail. The
view expressed by the single Judge of the Madras High Court in National
Insurance Company Ltd., v. V.Velammal is no longer correct proposition of law
and hence the submissions made by the learned counsel for the appellant in this
regard has got to be rejected as untenable.
17. In the case on hand, no doubt the claimant had an option of making a
claim either under the provisions of the Workmen’s Compensation Act or under the
provisions of the Motor Vehicles Act. By electing to make the claim under the
provisions of the Motor Vehicles Act before the Motor Accident Claims Tribunal,
the appellant/claimant has lost his right to make a claim under the provisions
of Workmen’s Compensation Act. Therefore, there is no error or infirmity
committed by the Tribunal in holding that the appellant/claimant was not
entitled to get any compensation from the respondents 2 and 3 under the
provisions of Workmen’s Compensation Act.
18. However, this Court is able to find some force and substance in the
contention of the learned counsel for the appellant that the Tribunal has
committed an error in not even recognising the right of the appellant/claimant
to get compensation under the no fault liability clause found in Section 140 of
the Motor Vehicles Act and that to that extent, the Judgment and decree of the
Tribunal is erroneous and thus, the same should be set aside and modified. In a
catena of decisions, it has been held that the question of negligence is
irrelevant in a claim under Section 140 of the Motor Vehicles Act based on
statutory no fault liability. While dealing with the no fault liability clause
found in Section 92-A of 1939 Act, the Honourable Supreme Court in Nandakumar.K.
v. Thanthai Periyar Transport Corporation reported in [1996(1) CTC 505] holding
that an absolute liability was cost upon the owner of the vehicle to pay
compensation, has made the following observation:
“By reason of sub-section (1) of Section 92-A an absolute liability is
cost upon the owner of a vehicle to pay compensation in respect of death or
permanent disablement resulting from an accident arising out of its use. By
reason of sub-section (3), the claimant is not required to plead or establish
that the death or disablement was due to a wrongful act or neglect or default of
the owner of any other person. Sub-section(4) is in two parts. The first part
states that a claim for compensation under the Section is not defeated by reason
of any wrongful act, neglect or default of the person who had died or suffered
permanent disablement. The second part states that the quantum of compensation
is not to be diminished even if the person who had died of suffered permanent
disablement bore some responsibility for his death or disablement.”
19. In G.Kotteeswaran v. P.Venkatesan and others reported in [2004(1)
TNMAC 136], a Division Bench of the Madras High Court, following the Judgment of
the Nandakumar’s case expressed a similar view that irrespective of the fact
that the accident was the result of the negligence on the part of the deceased
or the injured, the claim of the injured or the legal representatives of the
deceased for compensation under Section 140 of the Motor Vehicles Act against
the owner of the vehicle or vehicles involved in the accident should be
sustained.
20. The learned counsel for the contesting respondents have also conceded
that the appellant/claimant should have been awarded compensation based on the
no fault liability clause found in Section 140 of the Motor Vehicles Act. It is
not in dispute that status of the claimant as an employee under the respondent
is immaterial for sustaining a claim under Section 140 of the Motor Vehicles
Act; that even an employee of the owner of the vehicle involved in the accident
will be entitled to claim compensation under the no fault liability clause as
per Section 140 of the Motor Vehicles Act, even though he might have been guilty
of negligence leading to the accident in question or guilty of contributory
negligence. Therefore, the only question to be decided in respect of a claim
under Section 140 of the Motor Vehicles Act is:- “whether the accident in
question arose out of the use of the motor vehicle or the motor vehicles
concerned?”. If the answer to the said question is in the affirmative, then the
owner or owners of the vehicle or vehicles involved in the accident shall be
jointly and severally liable to pay compensation in respect of the death or
permanent disability. There is the evidence of P.W.2, a qualified medical
practitioner and Ex.X.1 – the disability certificate issued by him, in which he
has certified the appellant/claimant to have suffered a permanent disability to
the tune of 10%. In this case, it is not in dispute that the bus belonging to
the first respondent and the lorry belonging to the second respondent were the
vehicles involved in the accident. It is also not in dispute that the accident
in question arose out of the use of the above said motor vehicles. Therefore,
the first and second respondents, respectively the owners of the vehicles
involved in the accident are jointly and severally liable to pay compensation to
the extent provided under Section 140 of the Motor Vehicles Act.
21. The learned counsel for the contesting respondents drew the attention
of this Court that the accident took place prior to the amendment introduced in
1994 and as per the unamended provision of Section 140 which was applicable as
on the date of accident, a sum of Rs.12,000/- alone is payable for permanent
disability. The amendment came into force on 14.11.1994. The accident took
place on 04.11.1994. Therefore, only a sum of Rs.12,000/- as per the unamended
Section 140 of the Motor Vehicles Act shall be payable to the appellant/claimant
as compensation under the no fault liability clause.
22. The first and second respondents being the owners of the vehicles
involved in the accident shall be jointly and severally liable to pay the above
said amount. The third respondent admittedly, being the insurer of the lorry
involved in the accident, shall be liable to shoulder the liability of the
second respondent and pay the compensation to the appellant/claimant on behalf
of the second respondent by virtue of the contract of insurance. In line with
the above said observations, this Court hereby holds that the Judgment and
decree of the Tribunal, to the extent indicated above, is liable to be
interfered with. The appellant/claimant shall be entitled to an award for a sum
of Rs.12,000/- against the respondents 1 to 3 who shall jointly and severally
pay the above said amount together with interest from the date of claim. Taking
into account the past and present rate of interest to bank deposits and
advances, paid/collected by banks, awarding an interest at the rate of 9% p.a.
shall be reasonable. In all other respects, the claim of the appellant/claimant
shall stand dismissed. The appellant/claimant shall be entitled to proportionate
cost through out. The respondents shall bear their own costs in both the Courts.
23. In the result, this Civil Miscellaneous Appeal is allowed in part and
the award of the Tribunal dismissing M.C.O.P. in its entirety is hereby set
aside and an award in favour of the appellant/claimant is passed against the
respondents 1 to 3 directing them to jointly and severally pay a sum of
Rs.12,000/- together with an interest at the rate of 9% per annum for the said
amount from the date of claim petition till realisation. The respondents shall
pay proportionate cost to the appellant/claimant in both the Courts.
SML
To
The Motor Accident Claims Tribunal,
(Additional Subordinate Judge),
Tenkasi.