JUDGMENT
Anoop V. Mohta, J.
Introduction:
1. This appeal has been preferred by the original non-applicant No. 2/appellant herein. National Insurance Company Limited (for short ‘Insurance Company’), and thereby, challenged the award dated 20-3-1987, passed in Motor Accident Claim No. 29/1983, by the Motor Accident Claims Tribunal, Yavatmal (for short ‘the Tribunal’), and thereby awarded the compensation amount of Rs. 1,05,000/- in favour of the original applicants/respondent Nos. 1 to 5 herein, and against the appellant Insurance Company and the respondent No. 6, owner of the vehicle, with 6% interest per annum from the date of application till the date of realization. There is no appeal by the owner/respondent No. 6.
Facts :
2. On 22-4-1982, one Rambharose Upadhyay, was driving truck No. CPH 7585, owned by the respondent No. 6, met with an accident and he was crushed to death, because the axle of the front wheel broke down as a result of which the truck turned turtled on the driver’s side. The deceased Rambharose was getting salary of Rs. 1000/- and allowance of Rs. 500/- per month at the relevant time. The deceased was spending the amount of Rs. 1000/- per month on family i.e. the respondent Nos. 1 to 5, the age of the deceased driver was 47 years, on the date of the accident. The respondent Nos. 1 to 5, therefore, preferred an application for compensation under the Motor Vehicles Act, 1939 (for short ‘M. V. Act’) before the Tribunal, and claimed total compensation of Rs. 2,41,000/-. The respondent No. 1 is a widow, respondent Nos. 2, 3, 4 are sons and respondent No. 5 is a daughter of the deceased Rambharose.
3. The respondent No. 6, is the owner of the vehicle, who resisted the claim by its Written Statement dated 2-8-1984. The pleadings as well as, reasons or objections were quite feeble. The basic contention raised was, that the vehicle was insured with the Insurance Company, and the claim of the applicants was highly exaggerated and hence deserves to be reduced. The appellant Insurance Company, by its Written Statement dated 10-9-1984, resisted the compensation amount but, the other amounts could not be denied specifically. Both the contesting respondents could not deny the basic accident, as well as, the claim as such, made by the respondents/original claimants. There was no challenge or objection raised about the jurisdiction of the tribunal, as well as, the maintainability of the application before such Tribunal, and/or entitlement of the respondents for the compensation. However, submitted that the accident caused because of mechanical fault, and there was no case of any negligence by the deceased driver.
4. The parties lead evidence, basically of P.W. 1-Hariprasad Upadhaya and P.W. 2 Rajaram Bhurelal Yadav. No other witness have been examined by the contesting original non-applicants/respondent No. 6 and appellant Insurance Company. There was no cross-examination which could shatter the case of the applicants, except to the issue, that axle of the wheel broke down due to wear and tear, which resulted the truck to turn turtle on the side of the driver. Therefore, on the face of record it appears that there was no substantial challenge to the claim petition filed by the respondent Nos. 1 to 5.
5. The learned Tribunal after considering the material, as well as, the evidence on the record, as that there was no substantial challenge to the averments made by the applicants/respondents, and no substantial challenge to the examination in chief, the impugned award has been passed against the non-applicants to pay the amount of Rs. 1,05,000/- jointly and severally, with other directions.
6. Dissatisfied with the award, the appellant Insurance Company has only preferred this appeal. The respondent No. 6-owner of the vehicle has not preferred any appeal. The finding, as well as, the contentions raised by the original applicants in their application remanded untouched, undisturbed on merit.
Submissions :
7. The learned Counsel Mr. Kukdey, appearing for the appellant Insurance Company, contented that admittedly, the accident took place on account of mechanical break down, beyond the control and power of the deceased and without any negligence on the part of the deceased. The provisions of Section 110A of the M.V. Act, could not have been invoked by the respondent Nos. 1 to 5. Such remedy was not available to such dependents of deceased employee. The respondent No. 6 was the owner of the vehicle, even though it was insured with the appellant insurance company, the liability cannot be beyond the statutory limit. In view of Section 95 read with Section 110-A of the M. V. Act, even if the driver died due to mechanical defects, the insurance company is not liable for such compensation. And further contended that the basis of any action under Section 110-A, is negligence on the part of the driver, resulting in loss or injury to the third party. The original applicants/respondents No. 1 to 5 should have approached the appropriate forum for compensation under the Workmen’s Compensation Act, having appropriate territorial jurisdiction and not before the Tribunal. Therefore, contended that the order is without jurisdiction and deserves to be set aside, and applicants be directed to refund the amount.
8. Mr. Kukdey, relied on 1990 ACJ 521, New India Assurance Co. Ltd, v. Susamma Varghese in support of his contention that if the accident was inevitable or an unavoidable one, there cannot be a claim under the law of Torts in India and claim cannot be put forward under Section 110A of the M. V. Act. The insurer’s liability is based on the contract of indemnity entered into between the Insurer and the owner of the vehicle. The contract of indemnity is always subject to the provisions of the M. V. Act. Points for Determination :
1. Whether the impugned award is illegal, bad and without jurisdiction? .....No 2. What order? .....Appeal dismissed. Reasoning :
9. Mr. Choube, the learned Counsel appearing for the original applicants/respondent Nos. 1 to 5, however, resisted the said appeal and supported the impugned judgment and the award. Mr. Choube, also opposed the contentions as raised by the learned Counsel for the appellant. He relied on 2003 ACJ 86, Chairman, L.I.C. of India, v. Rajeev Kumar Bhaskar; 2002 ACJ 339, United India Insurance Co. Ltd. v. Heera Singh and Ors.; 2003 ACJ 1751, Lalitha and Ors. v. Divisional Controller, Karnataka State Road Transport Corporation and Ors.; 2003 ACJ 1434, Yashpal Sharma v. Girdharilal and Ors.; and basically contended that under the provisions of the M. V. Act, choice of forum is available, based on the provisions of Section 110-AA of the M. V. Act, which are reproduced as under:
Section 110-AA of M. V. Act, 1939.
“110-AA. Notwithstanding anything contained in the Workmen’s Compensation Act, 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation under either of those Acts, but not under both.”
He supported his contentions based on Lalita (supra), Yashpal (supra). Apart from this, I am also of the view that once the choice is available under the provisions of the relevant Act, the exercise of such choice rightly or wrongly by the victim of workmen or by the sufferer, that by itself cannot be a reason to consider the said objection for the first time in the appeal as referred above. There was no objection raised by the contesting non-applicants/appellant and the respondent No. 6, in their written statement about the jurisdictional issue as raised for the first time in this first appeal, and as contended by the learned Advocate appearing for the insurance company. There is not a single whisper or even suggestion to that effect in their written statement. In this background, the party at the relevant time if advised and accordingly preferred the particular claim petition before the Tribunal, and the contesting party proceeded further with the same knowing fully the then existing provisions of Section 110AA and/or Section 95 and/or Section 110A according to me, the respondents could not be penalised now by entertaining the appeal filed by the insurance company, and not by the owner. No where the respondent No. 6, who ought to have or should have raised this objection at the relevant time. The Bombay High Court in First Appeal No. 24/1995 (DB), Smt. Pushpa v. Bhagwan, dated 5-8-1997 has observed that such claim before the Tribunal is maintainable.
10. As liability of the incident as well as of the accident, is basically against the owner and not against the Insurance Company. The insurance company is liable only because the vehicle was insured with it. The question is not of passing award against the insurer only or against the owner of the vehicle. It is a contract between the owner of the vehicle as well as, of the insurer. The applicants or sufferers have nothing to do with the contract between the insurance company, as well as, the owner. The liability prima facie based on the accident, whether with negligence or without negligence and/or mechanical failure of the vehicle. According to me this is definitely an accident, because of use of motor vehicle owned by the respondent No. 6. The insurance company are entitled to raise objection within the boundary line of the specific provisions as well as the insurance policy. The award is basically against all the non applicants including the owner, as well as, insurance company. Owner has not raised any objection. What remains is a objection of the insurance company. This was a case of an accident which resulted into death, because of and/or on account of mechanical break down, beyond the control and power of the deceased, without having any negligence on his part. As contended by the learned Advocate appearing for the insurance company, in this background, the tribunal ought not to have awarded the compensation, as it goes against the provisions of Section 110, as well as, Section 95 of the M. V. Act. Even assuming for a moment that the contention as raised by the learned Advocate appearing for the insurance company, has some force but as the order remained unchallenged through out, so far as the owner is concerned, i.e. the respondent No. 6. Those unchallenged reasoning, by the owner, based on the undisputed position of fact, cannot be disturbed at the instance of the insurance company.
11. The provisions of the M. V. Act, is a beneficiary legislation. Interpretation of such provisions according to me is definitely with the scheme and purpose to protect and safeguard the interest of the victims, sufferers and its dependents, and/or legal representatives. However, the boundaries of law cannot be over stretched, which gives statutory liability, protection to the contesting respondents, i.e., the owner, as well as, the insurance company or such other parties.
12. In this background it is also necessary to consider the fact of accident and death of deceased Rambharose. The accident took place on 22-4-1982, there is no appeal filed by the owner of the vehicle. This appeal is only by the Insurance company. In my view, without going further into other detail controversy after 20 years, at the instance of the insurance company. I am declined to interfere with the order of grant of compensation, as award. The appellants are bound by their statutory limits and liabilities. There is no dispute about that part.
13. So far as the compensation part is concerned, there is no cross objection or substantial challenge raised by the respondent No. 6 owner of the vehicle, and the quantum as well as amount as awarded based on the averments made and/or evidence led by the respondents No. 1 to 5. I see there is no reason to interfere with those findings of facts based on undisputed position, and/or at least for want of contrary evidence by the owner, as well as, insurance company. According to me also the respondent Nos. 1 to 5, have proved their case and as compensation awarded cannot be said to be unreasonable and/or contrary to the record. Therefore, the basic award dated 20-3-1987, is maintained accordingly.
14. One more aspect, which has been raised by the learned Counsel appearing for the respondents 1 to 5, is that the Insurance Company cannot raise this issue on merit for the first time in this appeal. We have gone through the evidence, as well as, the record. The respondent No. 6 owner had filed its written statement separately. The written statement of the insurance company was also separate. Whatever may be the reason, there is no appeal and/or substantial challenge by the owner. Non raising of even an issue, even though based on undisputed position of the accident, which occurred due to mechanical defect, according to me cannot be agitated for the first time in the appeal, specially in cases where the owner has not raised such objection, of the court comes to a particular conclusion at the relevant time based on the evidence led by the parties. It will be difficult for such appellant, as well as, the respondent Nos. 1 to 5 not to reagitate the whole trial and/or proceed further with the matter based on such objection, after 20 years. I see there is no reason to allow the Insurance Company for the first time to contest the merit of the award even based on undisputed position of accident because of mechanical defects of the vehicle. There is no doubt that objection to the jurisdiction or what ever may be the objection, even for awarding compensation, if it goes to the root of the matter based on undisputed position, still such objection should have been raised in such matter basically in claim petition filed by the victims or sufferer, as early as possible, so that parties like the respondents No. 1 to 5, get full liberty to contest the proceedings including of such objection. I am of the view, that if the contesting party and basically the owner has failed to raise such objection at appropriate time, therefore, at the instance of the insurance company, even, if such objection is raised that itself is not sufficient to quash and set aside the award of the compensation which was granted, jointly and severally, against the owner, as well as insurance company. According to me once the award is sustainable based on the existing material against any one of the contesting respondents, and basically against the owner, as it remained unchallenged for all the purposes, I see there is no reason to interfere with the award at the instance of the appellant insurance company. These are the cases where the insurance company may take appropriate steps or contest against the owner of the vehicle. According to me victims respondents or their legal representatives should not be made to suffer for this technicalities, after 20 years.
Conclusion :
15. In view of this reasoning, the appeal filed by the appellant insurance company is dismissed with no order as to costs.