Judgment:
$~R-57 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
03. d August, 2017 + MAC.APP. 73/2009 KUMAR STEEL INC. ..... Appellant Through: Ms. Amandeep Kaur and Mr. Sumit Gupta, Advocates Versus IFFCO TOKIO GEN INS. CO. LTD. & ORS. ........ RESPONDENTS
Through: Mr. Anshuman Bal, Adv. for R-2 to 6 CORAM: HON'BLE MR. JUSTICE R.K.GAUBA JUDGMENT (ORAL) 1. Shokender, then 28 years old, concededly an employee of the appellant, was riding on a scooter bearing registration no.HR-10G- 9151 on 28.11.2005 when it met with an accident around 8.42 a.m. resulting in injuries being suffered that proved fatal. His wife and other members of the dependent family, they being second to sixth respondents (collectively, the claimants), instituted accident claim (petition no.323/2006) on 15.02.2006 seeking compensation, invoking the structured formula on the principle of no fault liability under Section 163A of the Motor Vehicles Act, 1988 impleading the appellant herein as the first respondent, it concededly being the registered owner of the scooter in question. In addition, Iffco Tokio MAC Appeal No.73/2009 Page 1 of 4 General Insurance Co. Ltd. (first respondent in the appeal) was also impleaded as second respondent to the claim petition.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry and, by judgment dated 15.05.2008, found a case made out for compensation to be awarded in terms of Section 163 A. It computed the compensation in the total sum of Rs.7,82,000/-, this inclusive of an amount of Rs.7,02,000/- calculated as the loss of dependency and Rs.60,000/- towards loss of love and affection and Rs.20,000/- towards funeral expenses. It, however, found that the insurance company was not liable to indemnify and consequently exonerated the said party from any responsibility fastening the liability on the appellant to pay.
3. On the question of computation of compensation, learned single Judge, then in seisin of the matter, by order dated 01.06.2010, held that the proper compensation that was payable in terms of the Workmen’s Compensation Act, 1923 (now known as Employees’ Compensation Act, 1923) worked out to Rs.5,50,000/-, this taking into account that the deceased was an employee of the appellant and he was on some official errand of the company moving on the scooter of his employer. Thus, directions were given to the appellant to pay Rs.5,50,000/- to the claimants, this from out of the amount deposited by the appellant in terms of the earlier directions in the order dated 03.02.2009. The said amount has already been accordingly released to the claimants.
4. The order dated 01.06.2010 had settled the subject of fair and just computation of compensation that can be claimed by the claimants MAC Appeal No.73/2009 Page 2 of 4 in these proceedings. It not having been challenged has attained finality. The counsel for the claimants fairly conceded that given the jurisdiction of Section 163A of the Motor Vehicles Act, 1988 that was invoked by the claimants in the proceedings taken out before the Tribunal, there is no case made out for any further enhancement over and above the amount which was computed by the said order dated 01.06.2010. He, therefore, does not press for any further hearing so as to insist on the amount of compensation awarded in the impugned judgment to be enforced.
5. This leaves the court only with one issue pressed at the hearing by the appellant i.e. the liability of the insurer to satisfy the award. This plea, however, must be noted and rejected with reference to the decisions of the Supreme Court in Oriental Insurance Co. Ltd. Vs. Shakuntala, MACA1422007, decided on 02.03.2016; New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors., (2009) 2 SCC417 and Ningamma and Anr. Vs. United India Insurance Company Ltd., (2009) 13 SCC710which has been followed by this court consistently by various judgments including New India Assurance Co. Ltd. Vs. Smt. Neeraj and Ors., MACA5502013, decided on 09.05.2016. The evidence on record clearly shows that the deceased was an employee of the appellant which is the registered owner of the vehicle in question. By the vehicle of the registered owner (his own employer) being taken out and used by him, he had stepped into the shoes of the registered owner (insurer). In these circumstances, he would not fall in the category of a third party so as to make available the benefit of the insurance cover taken by the appellant. MAC Appeal No.73/2009 Page 3 of 4 6. The appellant, however, presses one more contention at the hearing, this with reference to Section 53 of the Employees’ State Insurance Act, 1948. This contention is found to be devoid of merit and reference may be made in this context to the decisions of the Supreme Court in Helen C. Rebello and Ors. Vs. Maharashtra State Road Transport Corporation and Anr., 1999 (1) SCC90and Vimal Kanwar and Ors. Vs. Kishore Dan and Ors., (2013) 7 SCC476and of this court in D.T.C. Vs. Harish Ahuja and Anr., MACA3772005, decided on 02.08.2017. The benefit received under the Employees’ State Insurance Corporation Scheme are fruits of the contribution that would have been made by the deceased to the Employees’ State Insurance Corporation and the same cannot be used as pecuniary advantage of which the appellant can claim any benefit in the claim proceedings under Section 163-A of the Motor Vehicles Act, 1988.
7. In view of the above, the award of compensation in favour of the claimants is restricted to the amount determined by order dated 01.06.2010 and already released pursuant thereto. The amount lying in balance shall be refunded to the appellant alongwith the statutory deposit. The appeal is disposed of in above terms.
8. R.K.GAUBA, J.
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