Motor vehicles act
Sanjay K.Dhar
(Querist) 20 November 2011
This query is : Resolved
Yesterday, I had put a query and asked for any judgment as it was required by me in a case.I have been able to search the law which I also want to share with all of you.
High Court of Madras in a case" VENKATESAN V M.K.V.KANDASAMY NADAR & ORS" reported in 2011 ACJ 366, has held that Tribunal has got ample power to grant compensation under Workmen s Compensation Act.
Regards.
prabhakar singh
(Expert) 21 November 2011
Thank you n following is also one:
http://www.indiankanoon.org/doc/1874974/
The Oriental Insurance Company ... vs Kaliya Pillai, Thangam And N. Velu on 30 October, 2002
Rajeev Kumar
(Expert) 21 November 2011
Do as Prabhakar sir advised
Raj Kumar Makkad
(Expert) 21 November 2011
Rajeev Sir! Te querist is also a lawyer and he is sharing a citation for us so where is the matter of following, you advised?
dev kapoor
(Expert) 21 November 2011
Mr.Sanjay Dhar,
Very hpy to know that you too....
Have nice time.Hope we would continue to be enlightened !Keep it up....
dev kapoor
(Expert) 23 November 2011
Here is the jjmnt for all....
Madras High Court
Venkatesan vs M.K.V.Kandasamy Nadar;
Decided on 5 February, 2009
DATED : 05.02.2009
CORAM
THE HON'BLE Mr. JUSTICE S.PALANIVELU
C.M.A.No.2291 of 2002
Venkatesan ... Appellant
Vs.
1. M.K.V.Kandasamy Nadar
2. M/s.Indo Asian Finance Ltd.,
Chennai 99
3. V.Viswanathan
4. S.Sampathkumar
5. The Divisional Manager
United India Insurance Co. Ltd.,
Cuddalore ... Respondents
This civil miscellaneous appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the award and decree passed by the learned Subordinate Judge in M.C.O.P.No.156/1997 dated 11.03.2002 on the file of the Motor Accidents Claims Tribunal (Sub Court), Chidambaram and for cost. For Appellant : Mr.S.Udhayakumar
For Respondents : Mr.T.D.Vasu
J U D G M E N T
The appellant is claimant in M.C.O.P.No.156 of 1997 on the file of the Motor Accidents Claims Tribunal (Sub Judge), Chidambaram. He filed the petition claiming compensation of Rs.5,00,000/- for the injuries sustained by him in the road traffic accident which happened on 22.04.1996.
2. In the petition the following are stated:-
3. The petitioner was employed as driver by 3rd and 4th respondents and was earning more than Rs.3,000/- per month in average as salary and batta. On 22.04.1996, the petitioner was driving the vehicle bearing Regn.No.TN-04 A-2349 from Sethiathope to GST near Vikravandi. Two vehicles bearing registration No.TN-72 Z-7336 and TN-04 B-2529, were parked on the left and right side of the road without leaving any space in the middle of the road. While the petitioner was proceeding from south to north, due to the narrow space, he dashed against the two vehicles and due to the accident he sustained multiple grievous injuries. His disability is permanent. He could not stand or walk. He is the sole bread winner of the family having wife and two sons besides his aged parents. All the three vehicles were insured with the fifth respondent.
4. In the counter filed by the fifth respondent, it is stated that the petitioner has to independently establish the fact that the vehicle was covered by valid policy. This respondent denies that the vehicle owners had valid permit FC and RC at the time of accident. The drivers of the vehicles did not have valid driving license at the time of accident. The petitioner has not stated how and in which manner other drivers were negligent in parking vehicles. The accident was not due to the wrong parking of the vehicles. The income of the deceased is denied. The other particulars as to his health and responsibilities towards his family and his injuries are also not admitted. He did not sustain any disability as described. The amount of compensation claimed is excessive and hence the petition has to be dismissed.
5. Two persons by name Guruvayurappan (a) Guru (a) Gurumurthy and one Thirunavukkarasu were travelling in the ill fated lorry driven by this appellant at the time of accident and in the accident both of them died. Their dependents filed two other claim petitions in M.C.O.P.No.375 of 1996 and 155 of 1997 respectively claiming compensation for their death. While granting compensation in the said two claim petitions, the Tribunal dismissed the claim petition filed by this appellant by observing that this appellant being the tort-feaser i.e. he himself caused the accident by means of his negligence, he is not entitled to receive any compensation from the respondents. The said order of the Tribunal is under challenge before this court in this appeal.
6. The learned Tribunal Judge has discussed about the oral evidence on record in the presence of documentary piece of evidence and reached a conclusion that the version expressed by this appellant could not be probable. In the petition it is stated by the appellant that at the place of accident, two lorries were kept parked on either side of the road leaving a narrow space which was not adequate for this petitioner's lorry to enter and pass both the lorries and that has constituted the reason for dashing against one of the lorries and thereafter the impact was made on the other lorry. However, he has stated before the Tribunal at the time of recording oral evidence to the effect that one of the lorries was going in front of his vehicle and it was abruptly stopped without showing any signal and hence his lorry dashed against it. By referring to this oral testimony, the trial judge has observed that it is not acceptable for the reasons that the inconsistent statement which is available in oral evidence is improved version from his original statement and hence it is not true. Finally he has anchored the liability for having caused the accident on this appellant and made him ineligible to get the compensation from the respondents.
7. Concededly all the three vehicles are under insurance with the fifth respondent corporation at the time of accident. It is found in the award of the Tribunal that the fifth respondent had vehemently argued that the claimant, as a driver, should have claimed the compensation under the Workmen's Compensation Act.
8. The learned counsel for the appellant Mr.S.Udhayakumar would submit that eventhough if the appellant is not competent to seek remedy under the Motor Vehicles Act, still his rights could not be curtailed and his competency to receive compensation under Workmen's Compensation Act is always available and this court, having sufficient powers, may grant compensation under the Workmen's Compensation Act and the law in this regard has been settled by this court.
9. In support his contention he places reliance upon a judgment of a Division Bench of this court in Oriental Insurance Co. Ltd. V. Kaliya Pillai and others reported in 2003 ACJ 1021. In the said case, the deceased was a tractor driver, who fell down from the tractor due to his own negligence while driving the tractor and died. The Tribunal held that the insurance company was liable to pay compensation. Challenging the said award, the insurance company preferred appeal before this court and the Division Bench, after having a detailed study of the subject on this point with reference to two Division Bench decision of this court pronounced earlier, reached a conclusion that even though the insurance company could not be held liable under the Motor Vehicles Act, still the dependents of the deceased are entitled to get compensation under Workmen's Compensation Act. The Division Bench taking note of the length of litigation, for the object of shortening the litigation and in the interest of justice, held that the dependents have to be extended the benefit of Workmen's Compensation Act in the circumstances available. This court while dealing with the point has observed thus:- "It is well settled law that when the owner is not liable, the insurer cannot be held liable. Since the accident was caused only due to rash and negligent act of the driver of the tractor, we hold that the question of vicarious liability will not arise when the claim is made by the tortfeaser himself or any other person claiming under the tortfeaser; accordingly the claim by the claimants is absolutely misconceived and they cannot claim any compensation from the owner of the vehicle; consequently, they also cannot make any claim against the appellant insurance company. However, the insurer's liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference to the contract of insurance which would extend to the liability of the insured under the Workmen's Compensation Act. There is a specific finding by the Tribunal that deceased tractor driver died in the course of his employment. Further, it is not disputed that there was a valid insurance on the date of the accident, and accordingly the insurer was liable to the extent of liability under the Workmen's Compensation Act. In other word, we hold that even thought he insurance company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the Workmen's Compensation Act in order to shorten the litigation and also in the interest of justice, we decide to dispose of the appeal by determining the appropriate compensation in favour of the claimants."
10. In the two other Division Bench decisions referred to in the judgment supra, the judges had dealt with the availability of remedy for the injured or the dependents, if the injured was not alive, in the identical circumstances and rendered a finding that under Motor Vehicles Act they have to be non-suited. But in Kaliya Pillai and others case cited supra, the Division Bench of this court has expressed its view vividly on this point to the effect that this court has got ample powers to allow compensation under Workmen's Compensation Act, though not under Motor Vehicles Act. The above said decision has been followed by another Division Bench of this court in Oriental Insurance Co. Ltd. V. Krishnan and Others reported in 2004 ACJ 1790.
11. Following the principle laid down in Kaliya Pillai and others case, it has to be necessarily held in this matter that the appellant is entitled for compensation under the Workmen's Compensation Act, even though he is termed to be a wrong doer. The findings furnished by the Tribunal in its award on the factual aspects are proper and there is no necessity to interfere with the same. However, as adverted to already, he, under law, is entitled to receive compensation from the fifth respondent.
12. The appellant has deposed that his left femur and both bones in his left leg got fractured, besides fracture in his left toe and the skin over the right leg got damaged, that his upper lip ruptured, sutured and he also suffered a lacerated injury in his stomach, that he has been taking treatment as in-patient for 38 days in Pondicherry Jipmer Hospital, where he had undergone surgery, that rod was fixed in his femur bone but still it is inside his leg and that he was earning collection batta of Rs.250/- to 300/- per day at the rate of 10% and in addition to this, he got a salary of Rs.90/- per day and that after the accident he could not pursue his ordinary works. As per Ex.P.14 his disability was assessed at 50%. On the strength of the available materials on record, the compensation available to the claimant under the provisions of Workmen's Compensation Act is as follows:- Age of the injured : 24 years
Salary of the injured : Rs.2,000/-
Disability : 50% as per Ex.P.14
Factor : 218.47
60/100 x 2000 x 218.47 x 50/100 = Rs.1,31,082/-
13. As regards the payment of interest on the compensation, again the Division Bench decision of this court in Kaliyapillai and Others case mentioned above is followed. While considering the period from which the interest has to be calculated, this court has taken a view that the interest for the compensation could accrue 30 days after the date of accident and not from the date of quantification of compensation. It is also made clear that the liability to pay interest would run from the date on which it accrues, in favour of the workmen, namely, the date of the accident and not on the date of issuance of orders by the Commissioner for Workmen's Compensation. In the light of the observations afore-stated, the award passed by the Tribunal as regards the nature of disposal of M.C.O.P.No.156 of 1997 is set aside.
14. In the result, the civil miscellaneous appeal is allowed quantifying the compensation payable to the appellant at Rs.1,31,082/- and the interest for the same shall be paid after the expiry of 30 days from the date of accident till the date of payment. 05.02.2009
Index : Yes
Internet : Yes
asr/
To
Motor Accidents Claims Tribunal (Sub Court),
Chidambaram
S.PALANIVELU, J.
asr/
JUDGMENT IN
C.M.A.No.2291 of 2002
dev kapoor
(Expert) 23 November 2011
Lets read the APEX COURT FINDINGS TOO...
AIR 2003 SUPREME COURT 2232 "Tamil Nadu State Transport Corporation, M/s. Tanjore v. Natarajan"
= 2003 AIR SCW 2680
(From : Madras)*
Coram : 2 DORAISWAMY RAJU AND D. M. DHARMADHIKARI, JJ.
Civil Appeal No. 3991 of 2003 (arising out of S.L.P. (Civil) No. 16977 of 2002), D/- 6 -5 -2003.
M/s. Tamil Nadu State Transport Corporation, Tanjore rep. by its MD, Appellant v. Natarajan and others, Respondents.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - Award of Claims Tribunal - Vicarious liability - Accident due to collision of two buses - Petition filed by driver of one bus - Insurance Company and proprietor of other bus made parties - Employer of claimant driver not made party - Finding of contributory negligence by drivers of both buses - Order by High Court imposing liability to extent of 50% on employer of claimant driver by suo motu impleading him - Not justified - Employer of claimant not vicariously liable.
L.P.A. No. 220 of 1999, D/- 6-12-2001 (Madras), Reversed.
Where an accident took place due to collision of two buses and in a claim petition filed by driver of one of buses who was injured in the accident, only the Insurance Company and proprietor of other bus were made parties and proprietor of bus i.e. employer of claimant driver was not impleaded, the order of High Court suo motu impleadings the employee of the claimant and imposing liability to the extent of 50% on the employer of claimant driver, on finding contributory negligence of drivers of both buses was not justified. In view of the finding of contributory negligence on the part of the claimant as driver of the bus, the
@page-SC2233
employer cannot be held to be vicariously liable for the negligence of the claimant himself. Since the proprietor was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the proprietor could not be held liable under the provision of Motor Vehicle Act. Moreover, the claimant was given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer.
L.P.A. No. 220 of 1999, D/- 6-12-2001 (Mad), Reversed.
(Para 9)
K. B. Sounder Rajan, Advocate, for Appellant; S. S. Panwar, Advocate for Pradyot Kumar Chakravarty and V. Ramasubramanian, Advocates, for Respondents.
* L.P.A.No. 220 of 1999, D/- 6-12-2001 (Madras)
Judgement
DHARMADHIKARI, J. :- Leave to appeal is granted. The learned counsel appearing for the parties are heard on the merits of the case.
2. The facts of this case are peculiar and the procedure adopted and decision rendered by the Division Bench of the High Court is rather strange.
3. The appellant is Tamil Nadu State Transport Corporation (referred to as the 'Corporation' for short). On 28-11-1983, respondent No. 1 while driving bus of the Corporation collided against private bus coming from opposite direction. The bus of the private operator was insured with respondent No. 3 United India Insurance Company. As a result of the accident respondent No. 1 who was driver of the bus of the Corporation suffered multiple fractures of his right leg which had to be ultimately amputated. The driver of the Corporation bus filed a claim petition for compensation under the provisions of Motor Vehicles Act, 1939 in the Court of Subordinate Judge, Chidambaram. In the claim petition only the proprietor of the private bus and the insurance company from which it was insured were made parties. The Claims Tribunal i.e. the Court of Subordinate Judge, Chidambaram in its award made on 21-10-1986 came to the conclusion that the cause of accident was due to contributory negligence of the drivers of both the buses and their liability was apportioned to be 50 : 50 per cent. The total quantum of compensation determined by the Tribunal is Rs. 1,20,000/- (Rupees One Lac and Twenty Thousand) only. In view the fact that the claimant as driver of the Corporation bus was negligent to the extent of fifty per cent, the Claims Tribunal fixed joint liability of the private bus owner and its insurance company at Rs. 60,000/- (Rupees Sixty Thousand) only with interest rate at 9% per annum from the date of filing the claim petition.
4. The respondent/claimant preferred an appeal to the High Court seeking enhancement of the amount of compensation. The learned single Judge of the High Court dismissed the appeal on 7-3-1996 on the ground that there was long nine years delay in re-filing the appeal after remedying the defects pointed out at the initial filing of the appeal.
5. Against rejection of the appeal by the learned single Judge, the claimant preferred Letters Patent Appeal before the Division Bench of the High Court of Madras. The Division Bench suo motu impleaded the present appellant-Corporation as respondent in the appeal before it. The Division Bench upheld finding of the Tribunal that the cause of accident was contributory negligence on the part of drivers of both the vehicles. The Division Bench re-determined the quantum of compensation and held the claimant entitled to a total sum of Rs. 2,09,800 (Rupees two lakh nine thousand and eight hundred) only on different heads. It also awarded 9% interest per annum on the amount of compensation from the date of filing claim petition. Surprisingly without stating the law, the Division Bench ordered that the compensation awarded shall be borne equally by the insurer of the private bus (respondent No. 3 herein) and the Corporation (the appellant herein).
6. Learned counsel appearing for the appellant-Corporation contends that the claimant had not made the Corporation as a party-respondent either before the Tribunal or in appeal before the learned single Judge. There was no justification in law for the Division Bench to suo motu implead the Corporation as a party in the Letters Patent Appeal and to fasten liability to the extent of 50% of the total sum awarded on the Corporation.
7. The owner of the private bus was initially impleaded as respondent No. 2 in the Special Leave Petition before us but his name
@page-SC2234
subsequently came to be deleted as he was reported to have died in the course of proceedings before the High Court. His legal heirs were not brought on record and his name was allowed to be deleted by this Court.
8. The insurer of the private bus is however before us as respondent No. 3. The learned counsel appearing for the insurance company is also heard. The contention advanced on behalf of the insurance company is that since the Corporation did not prefer any appeal against the order dated 30-11-2001 where-under the Division Bench suo motu impleaded it as a party, the grievance raised in this appeal before this Court should not be entertained. Such argument is unacceptable as we have to decide on the correctness of the ultimate order made in the appeal by the High Court.
9. From the facts of the case and nature of the claim stated above, we find absolutely no justification in law for the Division Bench of the Madras High Court in its impugned order imposing liability to the extent of 50% on the appellant/Corporation. The Division Bench of the High Court completely over-looked that the claimant himself was driver of the Corporation bus and was found negligent to the extent of 50% for causing accident. In view of the above finding of contributory negligence on the part of the claimant as driver of the Corporation bus, the Corporation as an employer cannot be held to be vicariously liable for the negligence of the claimant himself. The claim petition did not make the Corporation as a party to the claim obviously because the claimant exercised option of approaching the Claims Tribunal under the Motor Vehicles Act against the owner and insurer of the private bus. He did not file any claim under the Workman Compensation Act against the employer. Since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held liable under the provision of Motor Vehicles Act. It was not a claim based on 'no fault liability'. It was a claim petition filed by the claimant against the owner and insurer of the private bus. The claimant is also represented before us and on his behalf it is stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The Division Bench of the High Court therefore committed a serious error in apportioning and fastening 50% liability of compensation on the appellant/Corporation. This part of the award therefore deserves to be set aside. The liability of the respondent/insurance company as insurer of private bus is found to be only to the extent of 50% of the total compensation determined. The total compensation determined is Rs. 2,09,800/- (Rupees two lakh nine thousand and eight hundred) only. Fifty per cent liability of the insurer of the private bus would therefore be Rs. 1,04,900/- (Rupees one lakh four thousand and nine hundred) only. On the aforesaid amount, the claimant would be entitled to an interest rate at 9% per annum from the date of filing the claim petition as awarded.
10. Consequently, the appeal is allowed. The impugned order of the High Court dated 6-12-2001 in so far as it fastens 50% liability towards compensation on the appellant/Corporation is concerned is hereby set aside. It is held that in view of the contributory negligence on the part of the claimant, the respondent insurance company being the insurer of the private bus, would be liable to pay compensation in the sum of Rs. 1,04,900/- (Rupees one lakh four thousand and nine hundred) only with 9% interest from the date of filing the claim petition, as directed by the High Court. In the circumstances, there shall be no order as to costs.
Appeal allowed.
M V Gupta
(Expert) 23 November 2011
very good information for all of us. Thanks to all of you.
