G. Chandraiah, J.
1. Heard both the counsel.
2. Aggrieved by the award dated 28.1.1999 passed by the court of Principal Motor Accidents Claims Tribunal (Principal District Judge), Warangal in M.V.O.P. No. 226 of 1998 the claimants filed the present appeal.
3. The 1st claimant is the wife of the deceased. Claimants 2 and 3 are the minor children of the deceased and claimant No. 4 is the mother of the deceased. Their case in brief is that the deceased was working as driver of the jeep in the office of the Mandal Revenue Officer, Mahabubabad and was drawing a monthly salary of Rs. 3,200/-. The deceased was deputed to attend photo identity duty at Kothaguda-Gudur and was directed to proceed in the jeep bearing No. AP-36-G belonging to the State Government. On 28.10.1995 the deceased attended the duty and proceeded to Kothaguda and Gudur mandals and completed his work and he was directed to report back to the M.R.O. Mahabubabad on 28.10.1995 and while coming back to Mahabubabad along with some Government servants, when they reached Mutyalammagudi village, bus belonging to the Andhra Pradesh State Road Transport Corporation (for short 'the Corporation') came from opposite direction with high speed and dashed the jeep and as a result the deceased received grievous injuries and fell unconscious and was shifted to Government hospital and from there he was shifted to M.G.M. Hospital and later he died in the hospital. The driver of the bus filed a complaint in Cr. No. 252/1995 and the claimants filed private complaint and the police after investigation filed report stating that the accident occurred due to rash and negligent driving of the driver of the jeep i.e., the deceased. However the claimants are disputing the correctness of the said report. Claimants are alleging that as the accident occurred due to the rash and negligent driving of the driver of the bus, they are entitled to compensation from the Corporation under the Motor Vehicles Act, 1988 (for short 'M.V. Act') and they are also entitled to compensation under the Workmen's Compensation Act, 1923 (for short 'W.C. Act') as the deceased died during the course of employment. Their case is that the Tribunal has jurisdiction to decide the claim. On humanitarian grounds the 1sl claimant was provided with employment on compassionate grounds and the claimants 2 and 3 who are minors, lost love and affection of the father. In all, the claimants claimed an amount of Rs. 4,00,000/-.
4. The Corporation filed counter and denied that the deceased died due to rash and negligent driving of the driver of the bus. Their case is that on the fateful day, jeep bearing No. AP-36-B-5888 driven by the deceased came in opposite direction in a rash and negligent manner with high speed with overload and came to the extreme right side of the road and the driver of the bus has taken the bus to the extreme left side and applied the brakes, but the jeep driver dashed the bus on its right side and caused the accident and thereby sustained injuries. There are more than 15 passengers who sustained injuries and they are all private passengers. On the report of the driver of the bus, the police investigated and the investigation revealed that the driver of the jeep was rash and negligent and the driver of the bus was not at fault. Therefore, they sought for dismissal of the claim petition.
5. The driver of the bus also filed counter and reiterated the averments made by the Corporation in its counter.
6. The State represented by the District Collector filed counter and contended that as provisions of M.V. Act cannot be made applicable, the claim petition is not maintainable. As the deceased died while on service, on humanitarian grounds the wife of the deceased was provided with compassionate appointment and so the provisions of W.C. Act also cannot be invoked. Based on the final report of the S.H.O., Mahabubabad it is stated that the deceased was returning after attending the photo identity card and allowed some private passengers in his jeep and started driving the jeep and in the meanwhile, jeep met with the accident. The Motor Vehicles Inspector opined that the accident was not due to any mechanical defects and as such the payment of compensation does not arise. With these averments the claim petition was sought to be dismissed.
7. Based on the above pleadings the Tribunal below framed the following issues for consideration:
1. Whether the petitioners are legal heirs and dependants to claim compensation?
2. Whether the death of deceased is due to rash and negligent driving of the driver of the crime vehicle?
3. Whether the age, avocation and income of the deceased as stated in the petition are true?
4. Whether the petitioners are entitled for special and general damages as claimed in the petition and to what extent?
5. Whether the petitioners are entitled for compensation, if so from which of the respondents?
6. Whether the petitioners are entitled for any interest?
7. To what relief?
8. In support of the case of the claimants P.Ws. 1 and 2 were examined and Exs. A-1 to A-7 were got marked. On behalf of the respondents R.W. 1 was examined and Exs. B-1 and B-1 (a) were marked.
9. The Tribunal after appreciating the entire evidence held that the accident occurred due to rash and negligent driving of the jeep by its driver i.e. the deceased and hence the Corporation is not liable to pay compensation. Holding that as the accident occurred due to rash and negligent driving of the jeep by the deceased and as the deceased committed misconduct by permitting the private persons to travel in Government vehicle by collecting fare and also over-loaded the jeep which constitutes criminal act and as the deceased is liable for disciplinary action, the State is also not liable to pay any compensation either under the M.V. Act or under the W.C. Act. However the Tribunal held that the claim under the W.C. Act cannot be made before a Tribunal dealing with claims under M.V. Act and vice versa. Therefore on the ground of jurisdiction, the Tribunal dismissed the claim petition. Aggrieved by the above findings of the Tribunal, the claimants filed the present appeal.
10. The learned Counsel appearing for the claimants contended that the accident occurred due to rash and negligent driving of the driver of the bus of the Corporation and there is no material before the Tribunal to consider how the police filed final reportstating that the accident occurred due to rash and negligent driving of the driver of the jeep and the Tribunal erred in relying on the police report. He submitted that P.W. 2 is the eye witness and just because his name was not figured in the F.I.R. or in the charge sheet as a witness or that he did not file any claim petition for the injuries sustained by him, his evidence cannot be disbelieved. He further submitted that the Tribunal below erred in appreciating the provisions under Section 140 of the M.V. Act. He stated that the claimants can file claim petition either under the M.V. Act or under the W.C. Act and the Tribunal below erred in holding that the Tribunal dealing with motor accident claims cannot deal with claim petitions under the W.C. Act. With these averments, he sought for setting aside the impugned order and to award compensation as claimed by the claimants.
11. On the other hand the learned Counsel for the respondents reiterating the reasoning given in the impugned award, sought for dismissal of the appeal.
12. From the record it could be seen that the case of the claimants is that on 28.10.1995 the deceased who was working as driver in the office of the Mandal Revenue Officer, Mahabubabad was deputed to attend photo identity duty at Kothaguda-Gudur and was directed to proceed in the jeep bearing No. AP-36-G 5888 belonging to the State Government. On 28.10.1995 he attended the duty and proceeded to Kothaguda and Gudur Mandals and completed his work and was directed to report back to the M.R.O. Mahabubabad on 28.10.1995. When the deceased was coming back to Mahabubabad by driving his jeep along some Government servants, they reached Mutyalammagudi village and the bus of the Corporation coming in opposite direction with high speed, dashed the jeep of the deceased and due to which the jeep was thrown away to a distance of 15 yards and the deceased received grievous injuries and felt unconscious and was shifted to Government hospital and later he succumbed to the injuries. The 2nd respondent-driver of the bus lodged complaint and based on the same, a case in Crime No. 252/1995 was registered. The claimants also filed private complaint under Section 200 of Cr.P.C. against the driver of the bus under Section 304A and 337 I.P.C. and the Magistrate referred the complaint to the police and the police after investigation filed report stating that the accident occurred due to the negligent driving of the deceased and not due to the driving of the driver of the bus. The Tribunal found that there are fifteen passengers in the jeep and all of them filed claim petitions. One of the injured by name Kota Sanjeevaiah s/o Venkataiah filed O.P. No. 206/1996 and he was the direct witness. In the said O.P., it was held that the accident occurred due to the rash and negligent driving of the driver of the jeep i.e., the deceased. Exs. A-1 and A-2 are the copies of the F.I.R. and inquest report. P.W. 2 is alleged to be the direct witness to the accident, as he also travelled in the jeep. But either in F.I.R. or in the inquest report his name does not figure. Further as found by the court below he did not file any claim petition, though he asserted that he also received injuries and no medical record is also filed. Therefore, his evidence was rightly disbelieved by the Tribunal. The police after thorough investigation filed final report stating that the driver of the jeep was at fault. The correctness or otherwise of the said report cannot be gone into and these circumstances are being taken only as a corroborative piece of evidence, since the Tribunal in the connected claim petition has already recorded that the accident occurred due to rash and negligent driving of the driver of the jeep. Therefore, considering all these circumstances, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the jeep. This being a finding of fact based on evidence, does not warrant any interference in the appeal.
13. Coming to the aspect of the jurisdiction, under Section 167 of the M.V. Act option is given to file claim petition either under the M.V. Act or under the W.C. Act and claim petitions cannot be filed under both the Acts. In the present case the claimants have approached under the M.V. Act. There is no dispute that the deceased died in harness. The contention of the State is that as deceased died in service, provisions of M.V. Act cannot be made applicable and on the other hand it was also contended that as the widow of the deceased was provided employment on compassionate grounds, even the claim under the W.C. Act cannot be entertained. I had an occasion to consider whether providing employment on compassionate grounds would disentitle the claimants who are the dependants of the deceased, from receiving compensation because of the death of the deceased on account of rash and negligent driving of the crime vehicle in State of A.P. and Anr. v. K. Pushpalath and Ors. : 2006(5)ALD614 . It was held that the providing employment will not disentitle the claimants from receiving compensation if they are otherwise entitled to. In the present case the accident occurred due to rash and negligent driving of the deceased himself. In these circumstances the claimants are not entitled to claim compensation under the M.V. Act. But as the deceased died in service, their claim under the W.C. Act cannot be rejected. But in the present case, the Tribunal has not properly adjudicated the claim of the claimants under the W.C. Act. On the one hand it held that the deceased committed misconduct and hence the claimants who are the dependants of the deceased are not entitled to any compensation under the W.C. Act and on the other hand it held that it has no jurisdiction to entertain the claims under the said Act. Therefore, both the findings cannot be allowed to sustain at the same time. In other words, it is to be seen that when the Tribunal is of the view that it has no jurisdiction to deal with claims under the W.C. Act, though it has as per Section 167 of the Act, it ought not to have held that the claimants are not entitled to any compensation even under the other Act by recording finding with regard to misconduct of the deceased. This finding of the Tribunal has to be deprecated for the reasons that it has shut the doors of both the forums and thereby made the claimants without any remedy. Therefore the finding of the Tribunal that the claimants are not entitled to any compensation under the W.C. Act is set aside and for the same reason even the finding of the Tribunal with regard to misconduct of the deceased is also set aside.
14. At this juncture it is necessary to consider a Division Bench judgment of the Kerala High Court in New India Assurance Co. Ltd v. Pennamma Kurien and Ors. 1995 (2) LLJ 28 (Ker.) (B.D.), wherein the Division Bench was considering the question whether a claim can be made for compensation under the W.C. Act after dismissal of an application made before Motor Accidents Claims Tribunal. Hon'ble Justice K.T. Thomas (as he then was) speaking for the Bench held as under:
7. But if the person who filed the application under one Act is non-suited to (sic. on) any ground, can it be held that he too would be debarred from filing the application under the other Act? Dismissal of the application filed under one statute must be taken as the consequence of a finding that he has no valid claim to be made under that Act. If no valid claim can be made, its corollary is that it was not a claim recognizable under law. If so, there is no bar in making a claim under the other statute.
8... In other words, if death or bodily injury to a person does not give rise to a claim under any one of the Acts, there would be no bar in making a claim under the other Act even if he had made an unsuccessful move under the other Act earlier. Dismissal of an application under one of the Acts would tantamount to a finding that no legal claim arose under that Act.
9. A driver, who on account of his own negligence caused the accident, cannot get any valid claim for compensation under the M.V. Act (except under a claim of 'no fault liability'). If that driver had died in the accident his legal heirs would not get any better claim under the Motor Vehicles Act.
10. But the position would be different under the W.C. Act in the case of death of the driver concerned. The employer is liable to pay compensation to his workman when he sustains personal injury by accident which arose out of and in the course of his employment. Section 3 of the W.C. Act created the liability in that domain. Of course, the conduct of the workman in relation to that accident may affect his entitlement to compensation in certain contingencies mentioned in the proviso to Section 3. But the liability of the employer would remain un-impaired if the injured workman has succumbed to such personal injuries. Thus, under the W.C. Act when death is caused to the workman in such contingencies his legal heirs would become entitled to compensation whether or not the accident is attributable to the negligence of the workmen concerned.
15. In the present case it is not in dispute that the husband of 1sl claimant died while in service due to the motor accident. Therefore the claimants are entitled to raise claims both under the W.C. Act and also under the M.V. Act. As the accident was caused due to the negligence on the part of the deceased, the Tribunal held that the Corporation is not liable to pay any compensation. In view of the above judgment of the Division Bench of the Kerala High Court, the claimants can file claim petition under the W.C. Act.
16. At this juncture another question that arises for consideration is whether the deceased can be taken as a 'workman' as per Section 2(1)(n) of the W.C. Act, since the deceased was employed in State Government. A Division Bench of the Kerala High Court Radhamiony v. Secretary, Dept. of Home Affairs 1995 (1) TAC 10 (Kerala) : 1995-I LLJ 376 held that driver of a Department of State is workman entitled to compensation, as the Act does not make any distinction between the driver in non-Government employment and Government employment. The relevant portion is extracted as under for better appreciation:
5. Schedule II gives the list of persons who subject to Section 2(1)(n) are included in the definition of workman. A person employed as a driver finds a place in the Schedule. Section 2(1)(n) read with Schedule 11 (XXV) would make the position abundantly clear that the driver of a vehicle comes under the category of workman under the Act. This is irrespective of the position whether he is a driver of the Government vehicle or not. The Act has not made any distinction as to the category of a driver whether in non-Government employment or Government employment. As the Act does not make such distinction, merely because the deceased happened to be the driver of a Departmental Vehicle of the State his status as a workman as defined under the Act does not undergo any metamorphosis. It is not possible to hold that a driver of vehicle belonging to the State on sustaining injury or succumbing to it would not be entitled to compensation under the Act.
17. In view of the above judgment it is clear that the deceased falls under the definition of 'workman'. Therefore, the competent authority under the W.C. Act shall consider whether the acts committed by the deceased would disentitle the claimants from claiming any compensation, based on evidence and the relevant provisions and the decision of the Apex Court and other High Courts. However, the Tribunal also held that the claimants have to proceed under the W.C. Act. Therefore at the cost of repetition it is to be noted that when the Tribunal held that it has no jurisdiction, it ought not to have recorded any finding affecting the merits under the W.C. Act.
18. The grievance of the claimants is that the Tribunal did not grant any compensation under Section 140 of the M.V. Act i.e., under 'no fault liability'. In view of provisions contained under Section 140(1) of the Act, the Tribunal ought to have granted an amount of Rs. 50,000/-payable by the 3rd respondent herein who is the owner of the vehicle, as the deceased died during the use of motor vehicle and further as per Sub-clause (4) of Section 140 the claim shall not be denied even if the deceased was at fault. However, the amount granted under this section shall be adjusted from the amount that would be granted under W.C. Act.
19. For the foregoing reasons, the claimants are granted an amount of Rs. 50,000/- under Section 140 of the Act payable by the 3rd respondent within a period of one week from the date of receipt of a copy of the order before the Tribunal and out of the said amount, claimants 1 and 4 are entitled to withdraw an amount of Rs. 5,000/- each and the remaining amount shall be deposited equally in the names of claimants 2 and 3 who are minors in a nationalized bank till they attain majority. However, the claimants are given liberty to proceed under the W.C. Act and in which case, the competent authority shall dispose of the case on merits and in accordance with law after giving sufficient opportunity, within a period of two months from the date of receipt of a copy of this order uninfluenced by the finding recorded by the Tribunal with regard to misconduct of the deceased.
20. The appeal is accordingly disposed of. No. costs.