(Prayer: This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 12.10.2011 passed in MVC No. 1213/2007 on the file of the XVI Additional Judge and MACT, Bengaluru, awarding a compensation of Rs. 2,97,000/- with interest @ 6% per annum from the date of petition till deposit and to modify the same.
This MFA Filed under Section 173(1) of MV Act against the Judgment and Award dated: 12.10.2011 passed in MVC. No. 1211/2007 on the file of XVI Additional Judge, MACT. Bengaluru, awarding a compensation of Rs. 1,97,000/- with interest @ 6% Per annum from the date of petition till the date of deposit within a month from the date of this order and to modify the same.
This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 12.10.2011 passed in MVC No. 1212/2007 on the file of the 16th Additional Judge, MACT, Bengaluru, awarding a compensation of Rs.25,000/- with interest @ 6% Per annum from the date of petition till the date of deposit and to modify the same.)
These appeals are directed against the Judgment and Award passed by the learned Member, Motor Vehicles Accident Claims Tribunal, Bangalore City wherein the petitions in MVC Nos.1213, 1211 and 1212 of 2007 came to be disposed of. However, MVC 1213/07, 1211/07 and 1212/07 were allowed in part by awarding compensation of Rs.1,97,000/-, 25,000/- and 2,97,000/- respectively payable by appellant- Insurance Company together with interest at the rate of 6% p.a. from the date of petition till depositing of the entire compensation amount.
2. The brief facts in substance of the accident that gave rise to preferring the claim petitions before the Tribunal are stated hereunder:
On 4.1.2007 at about 10.00 p.m. all the petitioners were in the course of employment in Ashok Leyland Lorry bearing Registration No.MYT 3857 as the Loaders proceeding to Mangalore from Bangalore on NH 48. At that time, the driver of the Lorry drove the Lorry in a rash and negligent manner and dashed against another Lorry bearing Registration No.KA-01-A 4778 near J.J.Resort, Solur. Due to which, the petitioners sustained grievous injuries and one Kumar alias Shivakumar succumbed to injuries. The Criminal case in Crime No.1/07 came to be registered against the driver of the Lorry. The offending vehicle was owned by respondent - Smt.Suma and claim petitions came to be preferred.
3. Respondent No. 1- Insurance Company who is appellant in these appeals, denied the claim. It was the other plea by the Insurance Company that the liability on the Insurance Company would always be depending on the compliance of the terms of the policy. Thus, in case of breach of the policy conditions, the liability to pay compensation by the Insurance Company would not arise.
4. The learned Member of MACT adjudicated the matters considering the accident, involvement of the vehicle, injury and its range, disability and loss of dependency pertaining to the deceased. The occurrence of the accident is not disputed.
5. This is second round of proceedings of the case.
In the first round, the petitions were allowed and liability to pay compensation was saddled on the owner thereby, the Insurance Company was exonerated against which the petitioners preferred MFA Nos.725, 726, 1361, 1362 and 1363/2009(MV). They were disposed of through a common Judgment by this Court and the matters were remanded to the Tribunal to adjudicate regarding liability of the Insurance Company. The relevant portion of the judgment runs hereunder:
"...Therefore, I pass the following order:
The appeals are accepted. The impugned awards are set aside. The matters are remanded to the tribunal for reconsideration in the light of the observations made in this order, in accordance with law. Parties are at liberty to adduce further evidence.
The amount deposited in MF.A.Nos.1361/2009, 1362/2009 and 1363/2009 shall be transferred to the tribunal. The disbursement of the same would depend on the final decision of the claim petitions. The amount shall be deposited in any Nationalized Bank till the final decision of the claims by the tribunal."
6. It is necessary to mention that, as submitted by the learned counsel for the Insurance Company, one of the injured namely, Sri Gururaju S/o.Late Giriyappa filed claim petition before the Commissioner of Workmens' Compensation and it came to be allowed.
7. It could be seen that out of the petitions presented by the claimants, MVC No.1210/07 came to be rejected. However, the said petitioner in MVC 1210/07 had presented a claim petition before the Commissioner for Workmens' Compensation in WCA B- 4/MTB/CR/61/07.
8. The learned Member was supposed to discuss the point of the status of the petitioners. The options that were available to him is to adjudicate on the aspects of accident arising out of and in the course of employment leading to injuries and disablement. However, when the incident is a road traffic accident, claimant would be having benefit of Section 167 of the M.V. Act, which clearly provides that the claimant has the options. Section 167 of M.V.Act, reads as under:
167. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act,1923 (8 of 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 may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
9. No doubt, in these appeals, the adjudication is made and the compensation is granted under the MV Act. In the circumstances, the scheme of liability and disbursement of compensation is different from the Employees Compensation Act and the Motor Vehicles Act as the grant of compensation depending in case of death or loss of future income in case of injuries coupled with various conventional heads which are considered in the circumstances. The learned Member should have looked into the reasons for granting the compensation and the relevancy considered by the Workmens' Compensation Act also.
10. However, the facts and circumstances suggest that the offending vehicle was being in the course and the scheme of compensation differs from the said Act to that of Motor Vehicles Act. In the context of circumstances, comparatively the determination of various heads under Motor Vehicles Act and quantum are comparatively more. The learned counsel for the appellant would submit that the litigation is deliberately left out under the Employees Compensation Act. It is necessary to note and imply that Section 167 of the Motor Vehicles Act provides option as well, more particularly, when the accident results out of and in the course of employment. The learned counsel for appellant would further submit that the defence of the Insurance Company also includes that the petitioner was a gratuitous passenger. However, learned counsel failed to clarify the meaning and application of 'gratuitous passenger'. Regard being had to the fact that, even the said aspect also should have been determined on the basis of the materials available. But the learned Member has not even appreciated the facts and evidence regarding entitlement or dis-entitlement of compensation and the liability of the Insurance Company.
11. Keeping in mind the evidence that was available or even by examining the additional witnesses led and the documents which they present. In substance, the learned Member has not discussed or appreciated the evidence in the terms prescribed by this Court when the matters were remanded on the earlier occasion. As many of the areas are based on facts, it is necessary to consider the aspects left out that were available for adjudication and should have been considered, such as, death and the injuries sustained in the capacity of particular status of the parties and entitlement of compensation.
12. Thus, the learned Member has not adhered to the terms of the previous directions issued by this Court. Hence, the common judgment and award passed by the learned Member is labile to be set aside and the matters require to be remanded.
13. In the circumstances, it is also to be noted that one of the claimant has approached under the Workmen's Compensation Act and the matter was disposed by awarding the compensation against the Insurance Company. The learned Member is at liberty to peruse the reasoning assigned by the learned Commissioner in the said petition. The learned Member of the Tribunal may also consider the facts and circumstances and peruse whether the appeal was preferred by the Insurance Company or not.
14. The learned counsel for claimants would submit that the order of the learned Commissioner in the case of Gururaj has become final and binding insofar as the facts of the case are concerned since no appeal has been preferred by the Insurance Company against the same.
15. Accordingly, appeals filed by the Insurance Company in MFA
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NOs. 4015/2012,n 4013/2012 and 4014/2012 are allowed as under: (i) Judgment and award dated 12.10.2011 passed in MVC Nos.1213/2007, 1211/2007 and 1212/2007 by the XVI Additional Judge and MACT, Bengaluru, are set aside and matters are remanded to the jurisdictional Tribunal for considering the status of the occupants of the Lorry and rights of the claimants and also on the aspect of liability. (ii) Both the parties have given option to adduce their further evidence, if required. (iii) Matters shall be disposed of within four months from the date of receipt of the file and the judgment. (iv) In the circumstances, learned Member is at liberty to peruse the reasoning assigned by the learned Commissioner while granting compensation in respect of the petition filed by one of the claimant as no appeal was preferred by the Insurance Company against the said order. (v) The amount in deposit in all the appeals shall be transmitted to the jurisdictional Tribunal forthwith.