B.D. Agarwal, J.
1. The aforesaid appeals are being disposed of by this common judgment as both appeals are arising out of the same judgment-cum-award of the learned Commissioner for workmen's Compensation under the Workmen's Compensation Act. MFA No. 2 of 2005 has been filed by the claimants challenging the judgment-cum-award dated 18.5.2005 passed by the learned Commissioner in Claim Case No. 17 of 2000, whereby he has deducted a sum of Rs. 1.5 lakh paid as ex gratia compensation by the State Government from the total award. MFA No. 3 of 2005 has been filed by the Commissioner (Election), Government of Manipur challenging the same judgment-cum-award awarding a sum of Rs. 3,69,500 and directing that the entire award has to be satisfied by the Election (Commissioner), after deduction of ex gratia payment.
2. I have heard learned Counsel for the appellants, I have also perused the impugned judgment and the records.
3. Brief facts, which are necessary to dispose of the above appeals, are summarized below:
The deceased, Md. Anwai Husan @ Anwar Hussai, was a driver by profession. He was engaged by Shri Dasarath Prasad to drive his motor vehicle No. MNP-3544 (Truck). In the year 2000. Assembly Elections were held in the State of Manipur. Hence, the Election Department needed certain vehicles for election duty. At the request of the said department, police requisitioned the aforesaid offending vehicle through the transport department of the State. The vehicle was requisitioned for the aforesaid purpose w.e.f. 1.2.2000 and same was placed at the disposal of the Election Department. On 27.2.2000, the driver of the truck was ferrying few CRPF constables from one place to another. Suddenly, the truck skidded off the road and met with an accident. As a result of the accident, the driver and one CRPF constable sustained injuries and ultimately the driver succumbed to the injuries. Hence, the wife and children of the driver filed an application before the Commissioner, Workmen's Compensation Act, 1923 seeking compensation of Rs. 5,06,000. The said case was registered as Claim Case No. 17 of 2000.
4. Initially, only the Insurance Company, namely. United Insurance Co. Ltd. and the owner of the truck were made opposite parties. The claim application was decided vide judgment dated 26.2.2001. While holding that the deceased was driving the offending truck at the relevant time and that the claimants were entitled to total compensation of Rs. 3,69,500, no effective relief was given to the claimants on the ground that the State Government, more particularly, the Election Department, who became the owner of the truck due to requisition of the vehicle during the relevant period, was not made a party in the claim application. Hence, the claimants filed an appeal before this Court which was numbered as MA(F) Nor 7 of 2001. Before disposal of the appeal, the Commissioner of Election and the Secretary (Finance), Government of Manipur were also impleaded as respondents. The said appeal was disposed of on 3.11.2004 directing the learned Commissioner under Workmen's Compensation Act to decide afresh the issue of liability in between the owner. Election Department and the Finance Department of Government of Manipur.
5. On receipt of the case on remand, the Commissioner (Election) and Secretary (Finance) were impleaded formally in the claim case. Thereafter, the Commissioner (Election) submitted his written statement but the other newly added department did not contest the case at all. After hearing both the parties, learned Commissioner came to an opinion that by virtue of requisition, the election department became the employer of the deceased. Consequently, it was also held that the said department is liable to satisfy the award. While holding so, both the real owner of the truck as well as the insurance company were totally absolved from the liability.
6. Shri L. Jayanta, leaned counsel for the claimants confined his argument with regard to the deduction of Rs. 1.5 lakh from the total award. According to him, any amount paid as ex gratia by the State is outside the legal right of the victim to get compensation under M.V. Act or Workmen's Compensation Act. Hence, the aforesaid direction of the learned Commissioner needs to be set aside. In support of this submission, the learned Counsel has relied upon the judgment of the hon'ble Supreme Court rendered in the case of Mrs. Helen C. Rebello and Ors. v. Maharastra State Road Transport Corporation and Anr. : AIR1998SC3191 and also the judgment of the Gujarat High Court in the case of United India Insurance Co. Ltd. v. Jyotsnaben and Ors. : AIR1999Guj131 .
7. It is the contention of the learned Counsel for the appellants for the election department that since the vehicle was duly insured, the insurance company is liable to satisfy the award. It is also contended on behalf of the Election Department that since the ex gratia payment of Rs. 1,50,000 has already been paid, the said department is not liable to pay anything more. Regarding the quantum of compensation, a question has been raised that the learned Commissioner has committed illegality in assessing the compensation on the basis of structured formula given under Section 163A of the Motor Vehicles Act while deciding the claim application under Workmen's Compensation Act.
8. One more ground has been taken by the Election Department that they were not impleaded as respondents in the claim application. However, this contention is not supported by the record. The record shows that the Election Department was duly impleaded as a party and written statement was also filed on behalf of them. Similarly, one more feeble alibi was taken to avoid the liability by stating that since the requisition of the vehicle was made by the police department the award should be directed against the said police department. This objection also does not require elaborate discussion. In my considered opinion, since the Election Department was the beneficiary of the requisitioned vehicle, this department has to take the responsibility of the employees of the vehicle.
9. Mr. K. Rabei, learned Counsel for the insurance company, submitted that since the offending vehicle was under requisition, the State of Manipur or for that matter the Election Department should be made liable to pay the award being the employer of the deceased. In support of this submission, learned Counsel has relied upon the judgment of the Gauhati High Court rendered in the case of Smt. Sitarani Gupta v. State of Assam and Ors. (1998) 2 GLR 268. In fact, this authority has also been relied upon by the Commissioner. The learned Counsel also contended that the insurance company is not liable to pay any part of the award since the owner or its custodian of the offending vehicle (meaning Election Department) had violated the terms and conditions of the policy. Learned Counsel also cited the ruling of Himachal Pradesh High Court given in the case of State of H.P. v. Deepa Devi and Ors. (2006) 1 TAC 535, to contend that if the offending vehicle is under requisition, at the time of accident, the owner and State are also severally liable to satisfy the award.
10. Shri Md. Jallaluddin, learned Addl. GA appearing on behalf of the State of Manipur representing the Secretary (Finance), submitted that since the vehicle was on election duty, either the Election Department is liable to satisfy the award or the insurance company should pay the money.
11. From the above submissions of the learned Counsel for the parties, the following questions need to be addressed by me.
(i) whether the deduction of Rs. 1.5 lakh from the total award is justified;
(ii) whether the learned Commissioner has committed any illegality in assessing the award on the basis of the structured formula given under Section 163A of the M.V. Act, 1988 ; and
(iii) who is liable to satisfy the award.
FINDINGS
Point No. (i); Deduction of 1.5. lakh
12. The learned Commissioner has deducted a sum of Rs. 1.5 lakh from the total award on the premise that the claimants themselves had filed a writ petition claiming ex gratia compensation. The second ground for deducting the aforesaid amount is that the claimants cannot get more amount than the what is prescribed in the formula of compensation.
13. On the other hand, Shri L. Jayanta, learned Counsel for the claimants submitted that pecuniary benefits received by the victim's family from other sources cannot be taken into account, while assessing just compensation for the death of a person in a vehicular accident. To buttress this point, the learned Counsel relied upon the authority of hon'ble Supreme Court given in the case of Mrs. Helen C. Revello (supra) and also the judgment of Gujarat High Court given in the case of Jyotsnaben (supra). In the case of Helen (supra), the question was whether the benefits of life insurance policy can be deducted from the award passed under Motor Vehicles Act. In the case of Helen C. Rebello (supra) their Lordships have held that such pecuniary benefits, which does not necessarily relate to the vehicular accident and which is received by the family of the victim, cannot be deducted from the award. At the same time, the Apex Court has not totally prohibited deduction of certain benefits received on account of accidental deaths in the following words:
34. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our Legislature has taken note of such contingency, through the proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
35. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded, thus, either through the wisdom of Legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution....
(emphasis supplied by me)
14. From the above observations of the hon'ble Supreme Court, it can be inferred that if the lives of employees can be insured by the employer and any peculiar advantage, received by the dependents of victims, may be subject to deduction. This apart, in the aforesaid case, the Apex Court did not decide the question of deduction of ex gratia payment made by the Government.
15. In the case of Jyotsnaben (supra), the Gujarat High Court was confronted with the question of deduction of ex gratia payment, paid to the claimants for the death of their bread-winner in a motor vehicle accident, and their Lordships came to the following conclusion:
11. We note that ex gratia payment was not made to the dependents of the deceased only because the deceased died in a motor accident. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimants by accidental injury or death and not other forms of deaths. The ex gratia payment can be made if there is natural death or death by suicide, serious illness, including even death by accident through train, air flight not involving motor vehicle and such payment would not be covered under the Motor Vehicles Act.
16. In the aforesaid case, the deceased was a police officer and he was escorting the then Chief Minister of the State. Suddenly, the jeep met with an accident and the police officer died in the accident. Thereafter, the Government paid Rs. 1.5 lakh as ex gratia to the dependents of the deceased. According to the Gujarat High Court, this is not permitted under law. While coming to the above opinion, the Gujarat High Court has also observed in paragraph 10 that before answering this question, one has to consider the nature of ex gratia payment. I would like to add further that besides the nature of ex gratia the circumstances under which the ex gratia is made shall also be looked into.
17. In the case before me, I find that a formal claim before the Commissioner under Workmen's Compensation Act was made on 6.4.2000. While the claim case was pending for disposal, the claimants filed a writ petition before the High Court and only on the basis of the direction from the court, the ex gratia payment was made. The payment was received by the claimants in the month of April of 2001, i.e., nearly after one year after filing of the claim application. I have given these details to distinguish the case of Jyotsnaben (supra), wherein the ex gratia was paid by the Government voluntarily and without any claim from the victim's family. This apart, in the cited case, no stance was taken in the tribunal regarding deduction of the amount of ex gratia payment, whereas in the case before me a specific plea was raised in this regard. Virtually this is the main plea of the Election Department to absolve it from any further liability. In this way, both the authorities cited on behalf of the claimants are distinguishable on facts.
18. Be that as it may, in my considered opinion, the view taken by the Gujarat High Court is not in consonance with the principle/ratio laid down by the Hon'ble Supreme Court of India in the case of Helen C. Rebello (supra). I am of the view that ex gratia payment does not come to the dependents of the victim from any investment, saving or contribution of the deceased in any social security scheme. If such amounts are not deducted from the statutory awards passed either under M.V. Act or W.C. Act it would result in giving compensation from two different sources. Needless to say that both M.V. Act and W.C. Act has framed certain mode of calculation of compensation. If the ex gratia payment is not deducted from such awards, it would amount to giving more compensation than what Legislature has intended.
19. In the case of K.S.R.T.C. v. Mahadeva Shetty AIR 2003 SCW 3737, the Apex Court has held that compensation can not expected to come as a windfall for the victim nor can it be a bonanza or a source of profit. I am also of the further view that ex gratia payments can be brought within the broad parameters of Section 140 of the M.V. Act, 1988, which provides payment of interim compensation, deductible from the final award. The objective for paying ex gratia compensation is pari materia to the objective behind enacting Section 95A in the M.V. Act, 1939 (now Section 140 in 1988 Act) so as to protect the victim or its dependents from destitution or vagrancy by giving instant monetary relief. Since such interim relief granted under M.V. Act is adjustable from the final award, the amount of ex gratia payment paid by the Government or the employer of the deceased is also, on the same analogy, deductible from the final award.
20. Apart from the distinguishing features of the case, a new development has also taken place in the matter of fixation of tariffs, liabilities and responsibilities of insurance companies vis-a-vis the insured. In exercise of powers conferred under Section 64U of the Insurance Act, 1938, the Government of India constituted a Tariff Advisory Committee. The said Committee has, in turn, issued General Regulations relating to tariffs and corresponding liabilities arising out of the policy of motor vehicles. Under the revised general regulations, GR 38 reads as under:
GR 38. Vehicles requisitioned by Government. - Vehicles requisitioned by the Government are automatically held covered during the period of requisition without any additional premium. In the event of a loss/damage occurring during the period of such requisition, the insurer shall pay losses/liabilities if any in excess of the ampunt(s) made good by the Government.
21. From the language of the aforesaid GR 38, I find an indication that any amount paid by the Government, in the event of any loss or damages occurred during the period of requisition, can be deducted and the insurance company shall be liable only for the balance liability. I have already said earlier that the ex gratia payment was made to the claimants for the death of their husband/father in a motor vehicle accident. Hence, the said payment has direct nexus with the compensation payable under the Motor Vehicles Act or Workmen's Compensation Act. For these reasons, I hold that the learned Commissioner has not committed any illegality in deducting the amount of ex gratia compensation of Rs. 1.5 lakh.
(ii) Legality of adopting structured formula of M.V. Act
22. Admittedly, the claim was submitted before the Commissioner of Workmen's Compensation Act. Strangely, instead of quoting Section 4 of the said Act, the claimants quoted Section 163A of the M.V. Act to get the compensation.
23. Learned commissioner has held that since Section 163A of the M.V. Act has overriding effect, compensation can be awarded under the structured formula given under the Second Schedule incorporated through Section 163A vide Amendment Act No. 54 of 1994. Section 163A of the M.V. Act, 1988 is extracted below for ready reference:
163A. Special provisions as to payment of compensation on structured formula basis. - (1) Notwithstanding anything contained in this Act or in any other law for the time in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.-*** *** ***
(2) *** *** ***
(3) *** *** ***
24. It is true that Section 163A starts with a non-obstante clause. However, in my considered opinion, this provision cannot be invoked if the claimants chose to get compensation under different law and before a different forum. To say it differently, if any claimant files an application under Section 163A before the tribunal constituted under MV Act, in that situation, the defendants, like owner/insurer of the vehicle, shall be debarred from taking a plea that the claimants cannot get higher amount than what is prescribed in other law.
25. After going through the record, I find that the deceased was 40 years old and as per the compensation formula of Workmen's Compensation Act, the claimants could have got a sum of Rs. 2,76,000. However, in the present case, the claimants have been awarded a sum of Rs. 3,69,500. Despite this position, I am not inclined to interfere with the amount of compensation since the claimants had invoked Section 163A of the M.V. Act in their claim application and compensation has also been awarded under this provision of law on good faith. Besides this, the claimants have been deprived of any interest amount, which they are normally entitled to from the date of filing of claim application under the M.V. Act. This fact has also neutralized the effect of granting compensation by the Ld. Commissioner under W.C. Act. Accordingly, the amount of compensation is hereby maintained.
(iii) Liability
26. Now it is the pertinent question as to which party is liable to satisfy the award. Learned Commissioner has directed the award to be satisfied by the Election Department on the ground that at the relevant time, the deceased was de facto employee of the said department. The other ground for fastening liability upon the Election Department is that the department had violated one condition of the policy of the vehicle. The learned Commissioner has also taken the help of a judgment of this Court, rendered in the case of Sitarani Gupta (supra).
27. In the case of Sitarani Gupta (supra), the wife of the deceased straightaway approached the High Court under article 226 of the Constitution of India seeking compensation and other relief. This High Court awarded certain amount of compensation holding that the deceased had assumed the status of an employee under the Government due to requisition of the vehicle, he was driving. In other words, State was held to be the employer of the deceased. On the basis of the aforesaid authority, I also find easy to reiterate that the husband/father of the present claimants was also an employee under the Election Department at the relevant time. However, on the basis of the aforesaid authority of Gauhati High Court, the question of liability of insurance company cannot be decided since this question was not addressed in the aforesaid case. I have already said earlier that the writ petitioner, Sitarani Gupta (supra) approached the High Court without filing any claim application either before MACT or under Workmen's Compensation Act. So far as the violation of the terms of the policy is concerned, it is the contention of the insurance company that the offending vehicle was insured for transporting goods whereas the Election Department engaged the truck for carrying CRPF personnel.
28. In the case of B.V. Nagaraju v. Oriental Insurance Company Ltd. : AIR1996SC2054 , the hon'ble Supreme Court has held that minor breach in the terms of insurance policy is not the ground to absolve the insurance company from its liability altogether. In the case before me, I find that the insurance company did not adduce any evidence to show that the accident had taken place just because the truck was used to ferry a few CRPF constables on an emergency duty and under exceptional circumstances. This apart, the Insurance Company did not take any plea in the written statement that they are not liable to pay any compensation because of the aforesaid violation of the terms of the policy. At the same time, under the General Regulations issued by the Tariff Advisory Committee, the policy of insurance remains valid during the requisition period and the insurer is liable to pay damages in excess of the amounts, made good by the Government. In the present case, the concerned department has already paid a sum of Rs. 1.5 lakh.
29. In the case of Deepa Devi (supra) cited on behalf of the insurance company, it has been held that the award is to be satisfied by the owner of the vehicle. State Government and the insurance company jointly and severally. In the case before me, the State Government has already paid a sum of Rs. 1.5 lakh. Hence, I am not persuaded to make the award payable jointly and severally. In other words, the insurance company is directed to pay the balance amount of Rs. 2,19,500.
30. In view of my findings given hereinabove, MFA No. 2 of 2005 stands dismissed. However, MFA No. 3 of 2005 stands allowed. M/s. United Insurance Company. Ltd. is directed to pay the balance amount within a period of two months from today. It the amount is not paid within this period, the amount shall carry interest @ 8% per annum from today.