G. Bikshapathy, J.
1. In this appeal, an important question as to the interpretation of Section 166 of Motor Vehicles Act arises for consideration.
Before delving into the legal aspects, it is necessary to refer to the facts leading to the filing of the appeal.
2. One Mr. Addala Narayana Murthy Raju was employed as driver on the bus belonging to the 1st respondent herein namely Smt. G. Subhadramma. On 7th April, 1996 at about 9.45 p.m., while the bus was plying from Sarika to Vizianagaram, it turned turtle at Zonnalavalasa Railway Gate and in the said accident Addala Narayana Murthy Raju died while on duty. Therefore, legal representatives laid a claim for compensation under Sections 164 and 166 of Motor Vehicles Act.
3. The Tribunal recorded a finding that the deceased Murthy had died due to his own rash and negligent driving of the bus and the Tribunal, however, assessed the compensation at Rs. 63,000/- and awarded the same against the owner as well as the insurer by an Order dated 30th April, 1997 passed in O.R 247 of 1996 on the file of the Motor Accident Claims Tribunal-cum-District Judge, Visakhapatnam. Challenging the said Order and not satisfied with the compensation awarded, the appeal has been filed by the claimants.
4. The learned Counsel for the appellant-claimants submit that the very purpose of engrafting of Section 167 of Motor Vehicles Act is to confer option to the claimants either to approach the Tribunal or the Commissioner for Workmen's Compensation. He further submits that admittedly the deceased was driver employed by the owner of the bus and, therefore, he covered by the provisions of the Workmen's Compensation Act. Instead of approaching the Workmen's Compensation authorities, he approached the Tribunal for claiming compensation and thus his claim is saved by Section 167 of the Act and hence, the Order of the Tribunal awarding compensation under no fault liability is illegal. The learned Counsel would submit that the Tribunal ought to have awarded compensation payable under Workmen's Compensation Act.
5. The learned Standing Counsel for the Insurance Company on the other hand, basically submits that the claim as filed by the legal representatives of the deceased employee is not maintainable and that the claimants ought to have approached the authorities constituted under the provisions of the Workmen's Compensation Act by claiming compensation under the aforesaid Act. Even though the option is given either to file a claim application before the Claims Tribunal or before the Commissioner for Workmen's Compensation, but yet, the type of claim that has made before the Claims Tribunal is not maintainable.
6. The learned Counsel would also submit that for claiming compensation in respect of the accidents that arose on account of the use of the motor vehicle establishing the negligence on the part of the driver is sine qua non. In the instant case, the driver himself was found to be negligent in driving the vehicle and, therefore, the legal representatives are disentitled to claim the compensation under the provisions of the Act and that the Claims Tribunal cannot be vested with the provisions of the Workmen's Compensation Act and award the same. He further submits that the award itself is not sustainable as the application by the legal representatives of the driver are not entitled to maintain an application for compensation under Section 166 of Motor Vehicles Act. However, since no appeal was filed by the Insurance Company, he submits that no grounds have been made for enhancement of the compensation.
7. The learned Standing Counsel for the Insurance Company relied on several judgments which will be referred to hereinafter.
8. The Tribunal after holding that the driver was negligent in driving the bus which resulted in the death of the driver allowed the compensation payable under no fault liability for a sum of Rs. 50,000/-. Apart from that the Tribunal allowed further sum of Rs. 3,000/- towards the funeral expenses and a sum of Rs. 10,000/- towards the loss of consortium.
9. The issue that arises for consideration is whether the application as filed by the claimant is maintainable in law? or Whether they have to approach the Commissioner for Workmen's Compensation constituted under the Workmen's Compensation Act?
10. For proper appreciation of the case, it is necessary to refer to some of the provisions contained in the Motor Vehicles Act and also Workmen's Compensation Act. Under Section 166 of Motor Vehicles Act, an application is provided for claiming compensation in respect of the accidents involving the death or bodily injury to person arising out of the use of the motor vehicle or damage to any property of a third party, so arising or both. The said claim for compensation also embraces the claim under Section 140 or 163-A of the Motor Vehicles Act. Section 166 of Motor Vehicles Act is extracted below:
Application for compensation--(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased ; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) [* * *]
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for Compensation under this Act.
11. It is to be noted that the provisions contained in Section 166 of Motor Vehicles Act is a claim under fault liability. But, however, under Sections 140 and 163-A of Motor Vehicles Act claims can also be filed for under no fault liability. Sections 140 and 163-A are extracted below:
140. Liability, to pay compensation in certain cases on the principle of no fault.-
(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person, shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty five thousand rupees.
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in Sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163-A.
163-A. 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 being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising but of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs of the victim, as the case may be.
Explanation--For the purpose of this sub-section, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time-to-time amend the Second Schedule.
12. Under Section 167 of Motor Vehicles Act, option is given to the claimants for claiming compensation either to approach the Tribunal constituted under Motor Vehicles Act or the Commissioner constituted under the provisions of the Workmen's Compensation Act, but not both. Section 167 of Motor Vehicles Act reads thus:
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.
13. Under the provisions of the Workmen's Compensation Act, if a workman is involved in an accident, arising out of and in the course of his employment, the employer shall be liable to pay the compensation in accordance with the provisions of the Chapter II of the said Act. Section 3 to the extent necessary is extracted below:
3. Employer's liability for compensation.--(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable:
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period of exceeding three days;
(b) in respect of any injury not resulting in death or permanent total disablement, caused by an accident which is directly attributed to-
(i) the workman having been at the time therefor, under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman; or
(iii) the wilful removal or disregard by the workman of any safety-guard or other device which he knew to have been provided for the purpose of securing the safety of workman.
14. In the very same provision, a statutory prohibition is contained under Sub-section 5 debarring the workman approaching the Civil Court for claiming the damages for the injuries sustained.
15. Thus the accident arising out of and in the course of employment of workman is a prerequisite for maintaining an application under the provisions of the Workmen's Compensation Act.
16. Applying the above principles, admitted facts are that the deceased was the driver of the bus belonging to the 1st respondent and that he died during the course of employment and that the accident had taken place on account of the negligent driving of the bus by the deceased driver. On the set of these facts, it has to be decided whether the claim application is maintainable under the provisions of the Motor Vehicles Act.
17. The learned Standing Counsel for the Insurance Company strongly relied on the judgment of a learned Single Judge of this Court in United India Insurance Co. Ltd. v. Kore Laxmi : 2002(2)ALD811 , wherein the learned Single Judge has referred to catena of decisions and held that right to receive compensation can only be made against the person, who failed to perform his legal obligation. The Claims Tribunal constituted under the Motor Vehicles Act is based on common Law of Tort part and the Motor Vehicles Act, unless the owner is legally liable, Insurance Company is not liable to pay the compensation.
18. The facts in that case are that one Mr. K. Anand was the driver of the lorry and while he was driving the lorry lost the control and rammed into oncoming lorry and on account of which he sustained multiple injuries and died. A claim was laid before the Tribunal, the Tribunal found that the deceased driver was negligent in driving the vehicle. But, however, the claim was allowed against the owner and insurance. The learned Judge set aside the Order fastening the liability on the Insurance Company and further observed in paras 28, 29 and 30 as follows:
(28) The provisions contained in Chapters X, XI and XII of the M.V. Act and the provisions of the W.C. Act, are pieces of social welfare legislations. Upon perusal of the provisions of the M.V. Act and the W.C. Act, it is clear that under the M.V. Act, the compensation payable is on the basis of negligence and the liability is on the basis of tort, with an exception to Section 140 of the M.V. Act, and whereas under the W.C. Act, the compensation payable is on the basis of strict liability, which is imposed by the statute itself.
(29) In the above view of the matter, I am of the opinion that neither this Court nor the Claims Tribunal has the power to enquire into the question of compensation payable under the W.C. Act. The said question has to be determined by the Commissioner under the W.C. Act, on the basis of strict liability, which is imposed by the statute itself.
(30) In the facts and circumstances of the present case, I am of the opinion that the claimants have mistakenly moved the Claims Tribunal under the M.V. Act. It does not mean that the claimants have elected a Forum. In the facts and circumstances of the case, even though the claimants/respondents filed claim petition before the Claims Tribunal under the M.V. Act, it does not bar them from making a claim before the Commissioner under the W.C. Act. The claimants are at liberty to file claim petition before the Commissioner for Workmen's Compensation once again to seek redressal of their claim.
19. In Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118, the Supreme Court observed as follows:
(22) The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. The number of the vehicles on the road increased phenomenally leading to increase in road accidents. To remedy the defect various steps were taken. In England the owners of the vehicle voluntarily insured against the risk of injury to other road users. With the increase of traffic and accidents it was found that in a number of cases hardship was caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted. In order to meet this contingency the Road Traffic Act, 1930, the Third Parties (Rights Against Insurers) Act, 1930 and the Road Traffic Act, 1934 were enacted in England. A system of compulsory insurance was enacted by the Road Traffic Act, 1930. Its object was to reduce the number of cases where judgment of personal injuries obtained against a motorist was not met owing to the lack of means of the defendant in the running down action and his failure to insure against such a liability. It is sufficient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur.
(23) The Indian Law introduced provisions relating to compulsory insurance in respect of third party insurance by introducing Ch. VIII of the Act. These provisions almost wholly adopted the provisions of the English law. The relevant section found in the three English Acts-Road Traffic Act, 1930, the Third Parties (Rights Against Insurance) Act, 1930 and the Road Traffic Act, 1934--were incorporated in Ch. VIII. Before a person can be made liable to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or injured should be able to establish that he has some cause of action against the party responsible. Causes of action may arise out of actions for wrongs under the common law or for breaches of duties laid down by statutes. In order to succeed in an action for negligence the plaintiff must prove, (1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff, and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the servant is proved to have, acted negligently in the course of his employment. Apart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owing a motor car.
20. But, it has to be noted that the Supreme Court did not consider the scope of Section 167 of Motor Vehicles Act. There is no dispute about the proposition that for making a claim under Section 166 of Motor Vehicles Act, proof of negligence is an essential requirement and in the absence of such a proof, no compensation could be awarded.
21. In Hansibai v. National Insurance Co. Ltd. I (1986) ACC 201 : 1986 ACJ 144, the learned Single Judge of Rajasthan High Court held that a claim in respect of the death of driver in an accident due to his own negligence is not maintainable under the provisions of the Motor Vehicles Act. The learned Single Judge referred to the decisions of the Division Bench of Madhya Pradesh High Court in Kamala Devi v. Kishanchand 1970 ACJ 32, where the Division Bench observed as follows:
The group of Sections 110 to 110-F of the Motor Vehicles Act deal with the constitution of Claims Tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, and lay down the procedure and powers of these Tribunals. These sections also provide for an appeal to the High Court and bar the jurisdiction of Civil Courts to entertain any question relating to any claim for compensation which may be adjudicated upon by the claims Tribunal. Nothing is said in these sections about the basis and extent of liability or even about persons who can be subjected to liability. The sections do not deal with liability at all; they only provide a new mode of enforcing the liability in respect of accidents involving death or bodily injury which before the constitution of the Tribunals was being enforced by Civil Courts. The object of these sections is to provide a cheap and speedy mode of enforcing liability arising out of use of motor vehicles. The remedy is made cheap by providing for application for compensation in place of suit and thus obviating the necessity of payment of Court-fees. It is made expeditious by empowering the Tribunals to follow summary procedure and by cutting down second appeals. The sections are a complete Code insofar as they deal with the constitution, procedure and powers of the Tribunal and appeals against the awards made by the Tribunal. But, these are all matters related to the mode of enforcement of liability. The sections do not enter the field of the law of liability which still remains to be governed by the ordinary Law of Torts and the Fatal Accidents Act, 1855 and it is for this reason that the sections do not refer to them at all. The, power to make an award 'determining the amount of compensation which appears to it to be just' conferred on the Tribunal does not create any new basis or extent of liability. The Tribunal must determine the amount of compensation according to the substantive law of liability already in force. The words 'which appear to it to be just' only recognise that in assessment of compensation the Tribunals like Courts will have certain measure of discretion. It is well known that the duty of assessing compensation in cases of personal injury or fatal accidents, though governed by well settled rules is a difficult one as many, speculative and uncertain, factors have to be taken into account. Within the bounds of the law and the rules established by judicial decisions, which are themselves part of the law there is a certain area where the Courts must exercise discretion of their own and assess the final figure with a sense of justice to both the parties. It is in this sense that it can be said that the amount of compensation is what the Courts think just. Indeed, in the last clause of Section 1-A of the Fatal Accidents Act, the words 'as if the Court may think' are use in that sense. The same idea is reflected in Section 110-B by which the Tribunal is empowered to determine the amount of compensation 'which appears to it to be just'. The section is in no way intended to give a go-by to the basis and limit of liability fixed by the substantive law.
22. The Full Bench of Madhya Pradesh High Court in Mangilal v. Parasram 1970 ACJ 86, ruled as under:
Before compensation can be awarded to the claimant from the insurer there must be a finding of negligence on the part of the insured as makes him liable in torts. If the insured is not liable men insurer is also not liable. From the mere statutory requirements of insurance there can be no inference of absolute liability independent of proof of negligence. The provisions of the Act do not lay down affirmatively that negligence must be proved before the insurer is held liable to pay the claimant compensation. But that is so because the Act is not intended to substitute the law of torts in its application to the case 'of accidents.
23. The learned Single Judge of Bombay High Court in Neelabai Mahadeo Salunkhe v. Shamrao Tatoba Pawar : (1995)ILLJ833Bom has observed as follows:
(6) Section 110-AA was inserted in the Motor Vehicles Act, 1939, by Amending Act 56 of 1939. The said section is applicable only where the death or bodily injury caused to a person gives rise to a valid claim for compensation under the Motor Vehicles Act, 1939, as well as a claim for compensation under Workmen's Compensation Act, 1923. The said section prohibits the applicants from making double recovery of compensation by invoking both the Acts. If the application for compensation made before the Motor Accident claims Tribunal is rejected on the ground that the deceased himself was negligently driving the tractor in question it can hardly be said that the death of the deceased gave rise to a valid claim for compensation under the Motor Vehicles Act, 1939. If the claim for compensation made under Motor Vehicles Act, could not be entertained by the Claims Tribunal for want of valid cause of action or for want of proof in respect of negligence of the driver causing the accident as alleged, Section 110-AA of Motor Vehicles Act, 1939, can never be applied so as to bar the claim for compensation under Workmen's Compensation Act, 1923. Even if the deceased was himself negligently driving the tractor leading to the accident in question, the claim for compensation under Workmen's Compensation Act, 1923 may be still maintainable against the employer concerned or against the Insurance Company if the deceased died as a result of an accident which took place during the course of employment of the deceased. Section 3, Workmen's Compensation Act provides for statutory liability of the employer to pay compensation to the workman or his dependants if the death or personal injury is caused by accident arising out of and in the course of employment of the workman concerned. The criterion to be applied for determination of an application for compensation under the Workmen's Compensation Act, 1923 is somewhat different from the criterion to be applied for determination of a claim for compensation under Section 110-A of Motor Vehicles Act, 1939.
(7) I shall now refer to a Division Bench judgment of the High Court of Karnataka dealing with the same question which has arisen before this Court in this appeal in B. Prabhakar v. Bachima 1984 A.C.J. 582 : 1984 (2) T.A.C. 298 (Kar.), the Karnataka High Court analysed the provisions of law contained in Section 110-A as well as Section 110-AA of the Motor Vehicles Act, 1939. The Court held that no claim for compensation under Motor Vehicles Act, 1939 could be entertained by the Claims Tribunal unless the accident had occurred due to actionable negligence of the owner or the driver of the vehicle causing injury or death of third party. The Court held (hat when the accident occurred due to actionable negligence of the deceased himself being the driver, no claim by his legal representative could be entertained by the Claims Tribunal under Section 110-A of the Motor Vehicles Act. The Court held that in such a case Section 110-AA of the Act would not be attracted and the claim made by the dependants of the deceased before, the Commissioner for Workmen's Compensation would be maintainable. This authority is directly on the point which has arisen for consideration of this Court in this appeal. Mr. G.R. Rege, the learned Counsel for the appellants, has rightly relied upon the ratio of this Court decision in support of his submission that the impugned Order is incorrect and the application made by the appellants for compensation invoking Workmen's Compensation Act, 1923, was maintainable in law and that the said application was not barred by Section 110-AA of the Motor Vehicles Act, 1939. As against this, Mr. Apte, the learned Counsel for the respondent No. 2, has invited attention of the Court to the judgment of the Single Judge of this Court in the case of Anthony Lobo v. C.M. Merchant 1979 Lab. I.C. 16. In this case, Vaidya, J. speaking for the Court held that the claim made by the appellants before the Commissioner for Workmen's Compensation was barred under Section 110-AA of the Motor Vehicles Act, 1939, for the circumstances set out in the said judgment. In this case, the dependants of the deceased had already made a claim for compensation before the Motor Accident Claims Tribunal and the compensation was already awarded by the Claims Tribunal to the claimants concerned. This case is thus clearly distinguishable. In our case, no compensation was awarded by the Motor Accident Claims Tribunal and the question of double recovery does not arise. I am in respectful agreement with the ratio of the above referred judgment of the Division Bench of the High Court of Karnataka in the case of B. Prabhakar v. Bachima (supra).
By holding so held that the application filed before the Commissioner for Workmen's Compensation was maintainable and remanded the matter to the learned Commissioner for consideration.
24. In D. Jayamma v. Section Govindaswamy 1962 A.C.J. 467, the Division Bench observed as follows:
To make a claim under the provisions of the Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act is not maintainable. The point as settled by a decision of the Supreme Court of India in the case of Minu B. Mehta v. Balakrishna Ramachandra Nayan. Therefore, if the accident, as in the present, case, has occurred due to the rash and negligent driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicles, no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.
The facts of the case would attract the doctrine of res ipsa loquitur [sic] (the thing speaks for itself). While negotiating the curve, the lorry which was under the control of its driver, namely the deceased Ramalingam left the road and fell into a ditch. Without more, therefore, it is to be presumed that the accident was the result of rash and negligent driving of the lorry by its driver, namely the deceased Ramalingam. Therefore, it is obvious, that the legal representatives cannot claim compensation under Section 110-A of the Motor Vehicles Act.
If the person injured in the accident in this case was an employee, for example, a cleaner in the lorry or a person employed for the purpose of loading and unloading then there would be an option for him either to claim higher compensation under Section 110-A of the Motor Vehicles Act providing actionable negligence on the part of the driver of the vehicle or to approach and get compensation under the Workmen's Compensation Act, without the necessity of proving negligence on the part of the driver. It is in such contingencies that Section 110-AA of the Motor Vehicles Act is attracted. But, where the accident is entirely due to the rash and negligent driving of the lorry by the deceased himself, his legal representatives cannot claim compensation under Section 110-AA of the Motor Vehicles Act as it is not attracted.
In the circumstances, therefore, it is obvious, that the petition for compensation under Section 110-A of the Motor Vehicles Act is misconceived. It should be an application under the Workmen's Compensation Act, if at all, before the concerned authority.
25. The Division Bench of this Court in United India Fire & General Insurance Co. v. Venkanna 1985 (2) A.L.T. 248, the Division Bench observed as follows:
We have to hold that the Claims Tribunal cannot enquire into the compensation that can be claimed and be awarded under the Workmen's Compensation Act on the basis of statutorily imposed strict liability under the Workmen's Compensation Act de hors negligence.
26. The learned Single Judge of Allahabad High Court in Arun Kumar Rastogi v. Chandra Kumari 1987 A.C.J. 149, held that the foundation for the liability under Section 110-A is laid on the basis of the tort and that the right flows from the rightful person alleged to be liable.
27. The Division Bench of Karnataka High Court in B. Prabhakar v. Bachima alias Musthari I (1985) ACC 230 : 1984 A.C.J. 582, had considered as to whether the legal representatives of the driver can make an application under Section 110 of Motor Vehicles Act when the deceased driver himself was negligent in driving the vehicle. The Division Bench held that such an application is not maintainable as the Claims Tribunal has no jurisdiction to entertain the application.
In that case the claim was made before the Tribunal under the Motor Vehicles Act and when it was dismissed on the ground that it was not maintainable, application was made before the Commissioner for Workmen's Compensation and the same was allowed. Against the said Order, the matter was carried in appeal. The Division Bench held that the Order of the Commissioner-workman is justified.
28. The Division Bench of this Court in A.P.S.R.T.C. v. Shaik Aneela Begum 0044/1998 : 1998(1)ALD229 held that the compensation payable under the Motor Vehicles Act is on the basis of the negligence and the liability is on the basis of the tort. The principles applicable are common law and therein only Claims Tribunal instead of Civil Court and further the Division Bench held thus:
The compensation payable under M.V. Act is on the basis of negligence and the liability is on the basis of tort. The principles applicable are of common law and there is only a change in the Forum i.e., Claims Tribunal instead of Civil Court, The only exception is that introduced under Section 92-A introducing compensation in certain cases on the principle of no fault which had also been incorporated into the W.C. Act under Section 92D of the M.V. Act. Compensation payable under the W.C. Act is on the basis of strict liability imposed by statute. The option under Section 110-AA of the M.V. Act lies with the claimant to choose one or the other Forums. Sub-section (2) of Section 19 of the W.C. Act provides that 'no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act'. The Claims Tribunal comes in the place of a Civil Court and by virtue of Section 110-F of the M.V. Act 'where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken, by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court, therefore, for the purposes of Section 19(2) of the W.C. Act the Claims Tribunal must be deemed to be a Civil Court. Where Claims Tribunals are constituted, Section 19(2) of the W.C. Act would not operate and in other places Civil Court should be barred.
The Claims Tribunal cannot enquire into the compensation that can be claimed and be awarded under the W.C. Act on the basis of statutory imposed strict liability under the W.C. Act de hors negligence.
29. The Full Bench of Karnataka High Court in Norulla v. P.K. Prabhakar : AIR2000Kant1 , had considered the scope and effect of Sections 95(1) and 110-A corresponding to Sections 147(1) and 167 of 1988 Act. Two issues were referred to the Full Bench for consideration namely, (1) under Section 95 of the Act, the owner of a goods vehicle is required to compulsorily be insured against the risk of death or injury of his employees arising out of and in the course of their employment because of the use of the vehicle in a public place, and (2) whether insurer is liable to indemnify the owner against the compensation awarded in proceedings-commenced under the Workmen's Compensation Act (hereinafter referred to Compensation Act) will be solely liable even if compensation is awarded by the Tribunal under the Act and either cases to what extent?
30. The Full Bench was of the unanimous view that under Section 95 of the. Act, the owner of the goods vehicle is required to compulsorily registerable against the risk of death or injury of the employees arising out of and in the course of employment. However, coming to the second aspect, one of the Judges Justice Bharuka held against the reference. But, however, the other two Judges did not, agree with the view expressed by the learned Single Judge and held that it is obligatory on the part of the owner of the vehicle to take out a policy of insurance, which provides for payment of minimum compensation as prescribed under the Workmen's Compensation Act, in the case of employees mentioned in proviso to Clause (b) of Sub-section (1) of Section 95. Paras 33 and 34 are extracted below:
(33) As observed by us earlier, we are unable to persuade ourselves to agree with the views expressed by our learned Brother on this question. In our view, on proper interpretation and consideration of Chapter VIII of the Act and the relevant provisions contained in the Compensation Act, it is open to the victim of the accident, to claim compensation either under the Compensation Act or under the Act. This is clear from Section 110-AA of the Act. The option is given to the claimant to prefer his or her claim either before the Tribunal or before the Commissioner under the Compensation Act. In the event of the claimant making a claim under the provisions of the Compensation Act, he or she is entitled for compensation payable as prescribed under the Compensation Act. This minimum assurance is guaranteed without the claimant being compelled to undergo the hazards of an adjudication of the dispute before the Tribunal though the compensation payable may be less than what the claimant may be entitled to secure under the law of torts.
(34) No doubt, the first proviso given to Clause (b) of Sub-section (1) of Section 95 of the Act, if it is read in isolation, may not, in explicit terms or clearly, give an indication that the insurer is liable to pay the entire compensation amount as may be determined by the Tribunal. Since the said provision is not very clear, the said provision is required to be read along with the other provisions of the Act and also the object behind Chapter VIII of the Act. There cannot be any doubt that Chapter VIII of the Act is a welfare legislation which is intended to protect the victims of motor accidents who sustain injury or their legal heirs in the case of their death. While Parliament was fully aware that the tortfeasors are liable to indemnify or pay the damages for their tortuous acts, however, keeping in mind that in all cases, tortfeasors may not be in a position to satisfy the decree or award that may be passed against them, make the taking out of a policy of insurance compulsory before a vehicle is put on the road by the owner of a vehicle. This is clear from Section 94 of the Act which prohibits any person except as a passenger, to use or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person a policy of insurance complying with the requirements of Chapter VIII of the Act. Section 95 of the Act provides for the requirements of policies and limits of liability. Sub-section (1) of Section 95 provides that in order to comply with the requirements of Chapter VIII, a policy of insurance must be a policy which (a) is issued by a person who is an authorised insurer, and (b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2); (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Therefore, reading of Sub-section (1) of Section 95 makes it clear that the policy of insurance is required to be taken from a person who is authorised to issue such policy against any liability that may be incurred to the third party or any passenger of a public service vehicle on account of the accident caused by or arising out of the use of the vehicle in a public place. Sub-clauses (i) and (ii) of Clause (b) of Section 95(1) to a large extent cover large section of victims of motor accidents. However, the proviso given to Clause (b) of Sub-section (1) of Section 95, in our opinion, makes it obligatory on the part of the owner of the vehicle to take out a policy of insurance which provides for payment of minimum compensation as prescribed under the Compensation Act in the case of employees mentioned in the said provision.
31. While dealing with the liability of the insurer and after referring to the judgment of the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 A.C.J. 507; New Asiatic Insurance Co. v. Pessumal Dhannamal Aswani 1958-65 A.C.J. 559, and also Gujarat High Court in Megjibhai Khimji Vira v. Chaturbhai Taljabhai 1977 A.C.J. 253, the Bench observed as follows ;
Therefore, if the provision is to be understood in the light of what is laid down by the Supreme Court and the Gujarat High Court, the proviso, in our view, cannot be understood or interpreted to mean that the employees of the owner of a vehicle are not entitled to claim compensation either in addition to what is fixed under the Compensation Act or even the amount fixed under the Compensation Act, if they make a claim before the Tribunal, from the insurer. As observed by us earlier, the Court will have to harmoniously interpret the provisions contained in Chapter VIII of the Act keeping in mind the very object of the Legislation. If it is so understood and interpreted, in our view, the insurer is liable to pay the entire compensation as may be determined by the Tribunal pursuant to the claim made by the victims of the motor accident in the case of injury, or the legal heirs of the victims of such an accident in the case of death. The above view of ours also gets support from the decisions of the High Courts of Allahabad, Orissa, Bombay and Madhya Pradesh in the case of Oriental Fire & General Insurance Co. Ltd. v. Ramsunder Dubey (1982) A.C.J. 365 (All.); National Insurance Co. Ltd. v. Gonti Eliza David 1984 A.C.J. 8 : 1984 (1) TAC. 206 (Bom.); Oriental Fire & General Insurance Co. Ltd. v. Dhanno 1987 A.C.J. 759 : 1987 (2) T.A.C. 211 (M.P.); and Surinder Kumar Jain v. Sukh Dai 186 A.C.J. 848 (P&H;).
Finally the learned Judges observed as follows:
The precedents referred to above by us clearly support the view we have taken above. Therefore, the words 'other than a liability arising under the Workmen's Compensation Act' incorporated in the proviso given to Section 95(1)(b), in our view, do not in any manner support the contention of the insurer that the liability of the insurer is only to the extent of the liability prescribed under the Compensation Act and if a claim is made under the Act, the claimant is not even entitled for payment of compensation prescribed under the Compensation Act, from the insurer. In our view, when once the taking of a policy in respect of the employees referred to in proviso (i) given to Section 95(1)(b) of the Act, in respect of a liability arising under the Compensation Act, is made compulsory, it is not possible to take the view that merely because the compensation payable under the Compensation Act is fixed as prescribed under the Compensation Act, the insurer is not liable to pay the compensation awarded by the Tribunal. If such an interpretation is placed, it would negate the very object of Chapter VIII of the Act. We do not find any good or valid reason to take such a view which would discriminate a section of the victims of the motor vehicle accidents who are employees of the owner of a vehicle, from others.
One other aspect of the matter, which is required to be dealt with, is whether, in the event of the claimants failing to establish that the motor accident in question had taken place either on account of negligence of the driver of the vehicle when the driver himself or his legal heirs are not the claimants, or on account of the negligence of the employer or owner of the vehicle, the claimants are precluded from claiming compensation before the Tribunal even with regard to the compensation payable to them under the Compensation Act. Section 110-AA of the Act gives an option to the victims of the motor accidents or the legal heirs of such victims in the case of death to institute proceedings either before the Tribunal constituted under the Act or to make a claim before the Commissioner for Workmen's Compensation under the Compensation Act.
Coming to the option, the learned Judges observed as follows:
(37) Now, the question is that when an option is given to the parties, merely because a claim is made before the Tribunal, whether the right to claim compensation provided under the Compensation Act is taken away on the ground that the claimants have failed to establish the tortuous act either on the part of the employer or the employee of the vehicle, who is responsible for the accident? In our considered view, if the object of the Legislation both under the Act and the Compensation Act is kept in view, it is not possible to take the view that if the claimant fails to establish the tortuous act either on the part of the employer or the driver of the vehicle, he is not entitled to receive the minimum compensation provided under the Compensation Act. In our view, when Section 95(1)(b) of the Act makes it compulsory for taking out a policy of insurance, which includes payment of compensation under the Compensation Act, in the case of categories of persons referred to in the said sub-section; and when the Compensation Act, without proof of tortuous act, provides for payment of compensation prescribed under the Act, merely because the jurisdiction of the Tribunal is invoked for payment of compensation, it is not reasonable to take the view that the compensation made payable as prescribed under the Compensation Act should be denied to the claimants. If an Executive Officer, of the State under the Compensation Act is entrusted with the responsibility of calculating the compensation as prescribed under the Act, and making payment to the claimant irrespective of the fact whether there is negligence on one part of the employer or not, we do not find any justifiable ground to deny the same benefit to the claimant merely because he makes a claim before the Tribunal in the hope of getting higher compensation than the one prescribed under the Compensation Act. The Tribunal is presided over by Judicial Officers either in the cadre of District Judge or Civil Judge (Senior Division). The Tribunal is only required to calculate or total up the compensation as prescribed under the Compensation Act. If that could be done by the Commissioner for Workmen's Compensation, in our view, there should not be any difficulty for a Judicial Officer to determine the same. The substance of the matter is one payment of compensation in respect of a right that has accrued to the claimants under the Compensation Act. When Section 110-AA of the Act provides for an option to the claimants either to move the Tribunal or the Commissioner for Workmen's Compensation, while placing an interpretation to the said provision, the Court should keep in mind the object of the Legislation, which is benevolent in nature and which is intended to protect the rights of the victims of the accident. If the provision is so understood, the only view that can be taken under the circumstances is to hold that even in the event of the claimants failing to establish negligence or tortuous act on the part of the employer or the driver of the vehicle, still the claimants are entitled for payment of compensation as prescribed under the Compensation Act.
Sub-section (2) of Section 19 of the Compensation Act, which ousts the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Compensation Act, required to be settled or dealt with by a Commissioner or to enforce any liability incurred under the Compensation Act, is of no assistance to support the plea of the Insurance Company that in view of the said provision, the Tribunal constituted under the Act has no power to pay the compensation payable under the Compensation Act merely because the claim is made before the Tribunal. It is necessary to point out that the Compensation Act is of the year 1923. The Act is a subsequent Legislation. Chapter VIII of the Act came to be incorporated long after the coming into force of the Compensation Act. Further, Section 110-AA of the Act came to be incorporated to the Act by means of Act 56 of 1969. Section 110-AA of the Act provides that notwithstanding anything contained in the Compensation Act, where the death of or bodily injury to any person gives rise to a claim for compensation under the Act and also under the Compensation Act, the person entitled to compensation may claim such compensation under either of those acts but not under both. Therefore, Section 110-AA of the Act makes it clear that the person, who is entitled to claim compensation under the Act and also under the Compensation Act, can opt for claiming compensation either under the Act or under the Compensation Act. Therefore, in our considered view, Section 110-AA of the Act also specifically confers power of awarding compensation prescribed under the Compensation Act by the Commissioner or the Tribunal constituted under the Act if a claim is made before the Tribunal.
Further, the words 'including the compensation under the Workmen's Compensation Act' provided in the proviso given to Sub-section (1)(b) of Section 95 of the Act is a clear indicative of the Act that irrespective of the proof of negligence on the part of the either the driver or owner of the vehicle, the insurance policy should cover the liability of the employer payable under the Workmen's Compensation Act. The intention of the amendment made to Section 95(1) of the Act by means of Act 100 of 1956, it appears to our mind, is to see that the workers are not left high and dry and they are assured of recovery of a minimum compensation as laid down in the Compensation Act even when they move the Tribunal under the Act. If the view expressed by us above is not taken, it would result in great injustice to the victims of motor accidents or their legal heirs, who move the Tribunal with the hope of getting more compensation generally on legal advice. It is common experience that on many occasions, for want of legal evidence and proof of negligence, genuine claims made by the victims of the accidents or their legal heirs fail. Under these circumstances, if a claimant, who is assured of the compensation under the Compensation Act, is to be told that since he has moved the Tribunal, he is not entitled for award of compensation assured to him under the Compensation Act, it would result in travesty of justice. Such an interpretation would only cause additional misery to the suffering of the victim of the accident. Such interpretation has to be avoided by the Courts if it is permissible, while interpreting the provisions of law. In our view, the discussion made above clearly shows that the view taken by us is permissible. In the light of the discussion made above, we are unable to subscribe to the view taken by our learned Brother that in the event of the claimant failing to establish the negligence on the part of the driver or the owner of the vehicle, the claimant, who moves the Tribunal, is not even entitled for payment of compensation prescribed under the Compensation Act.
The Bench further observed as follows:
Therefore, from what is stated above, it is clear that there was no dispute raised which came up for consideration before the Full Bench with regard to the extent of the liability of the Insurance Company and it was taken as admitted that the liability of the Insurance Company is to the extent of coverage under the Compensation Act. Therefore, we are of the opinion that the decision in the case of National Insurance Co. Ltd. v. Dundamma of the Full Bench of this Court is of no assistance to support the plea of the Insurance Company that liability of the Insurance Company is only to the extent of the liability fixed under the Compensation Act.The learned Judges recorded the following conclusion:
In the light of the discussion made above, our conclusions on the two questions referred to earlier are as follows-
(i) insofar as the first question is concerned, as observed earlier, we respectfully agree with the conclusion reached by our learned Brother;
(ii) insofar as the second question is concerned, we are of the view that the insurer is liable to indemnify the owner against the compensation awarded by the Tribunal subject to the limit prescribed under Sub-section (2) of Section 95 of the Act if the accident in question takes place on account of the tortuous act of the driver of the vehicle when the claimant is not a driver, who was engaged in actually driving the vehicle in the case of injury to him or his legal heirs in the case of his death;
(iii) if the claimant fails to prove tortuous act on the part of the driver of the vehicle as stated above, the insurer would be liable to indemnify the owner only to the extent of the liability of the owner to pay compensation to the employee as prescribed under the Compensation Act;
(iv) and merely because a claim is made before the Tribunal for payment of compensation the insurer is not absolved of its liability to pay compensation prescribed under the Compensation Act.
32. On consideration of the decisions referred to supra, it is clear that for claiming a compensation under the provisions of the Act, the primary requirement is tortuous act on the part of the driver or owner of the motor vehicle. If the negligence or tortuous act is not established, it is not open for the Tribunal to award compensation. But, however, there are exceptions to the rule of tortuous liability, which was given in the statutory recognition. Under Section 140 of the act de hors the negligence of the driver or the owner of the vehicle, the compensation payable by the owner. However, in case of permanent disability arising out of the accidents on account of the use of motor vehicles, the same has to be assessed under the provisions of the Workmen's Compensation Act.
33. The compensation is payable in respect of the permanent disablement under no fault liability and the provisions of this Chapter shall also apply in relation to the claims of any compensation in respect of the death or permanent disablement of any person under Workmen's Compensation Act. Sections 142 and 143 reads thus:
142. Permanent disablement.--For the purposes of this Chapter permanent disablement of a person shall be deemed to have resulted from an accident of, the nature referred to in Sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face.
143. Applicability of Chapter to certain claims under Act 8 of 1923.-The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in Sub-section (1) of Section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.
34. In this regard, reference also necessary to be made to Section 163-A which contains the provisions for payment of compensation of structured formula based on Sections 163 and 163-B of Workmen's Compensation Act which reads thus:
163. Scheme for payment of compensation in case of hit and run motor accidents.-
(1) The Central Government may, by notification in the Official Gazette, make a scheme specifying, the manner in which the scheme shall be administered by the General Insurance Corporation, the form, manner and the time within which applications for compensation maybe made, the officers or authorities to whom such applications may be made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation.
(2) A scheme made under Sub-section (1) may provide that:
(a) a contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees or with both;
(b) the powers, functions or duties conferred or imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of the Central Government, by such officer or authority to any other officer or authority;
(c) any provision of such scheme may operate with retrospective effect from a date not earlier than the date of establishment of the Solatium Fund under the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act:
Provided that no such retrospective effect shall be given so as to prejudicially affect the interests of any person who may be governed by such provision.
163-B. Option to file claim in certain cases.-Where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both.
35. Therefore, from the reading of the aforesaid provisions, it is clear that even though right accrues to the victim of motor accident only on establishing negligence on the part of the driver of the vehicle or the owner of the vehicle, yet, compensation also becomes payable in case of no negligence and in case of permanent partial disability, the same has to be considered with reference to the provisions contained in Workmen's Compensation Act and the Tribunal is expected to take into consideration the provisions of the Workmen's Compensation Act relating to the permanent disability. Yet, there is another provision which confers the victims, who are covered by the provisions of the Workmen's Compensation Act to approach the Tribunal for compensation or the Commissioner for Workmen's Compensation and not both. Therefore, this Court is required to consider the circumstances, under which a workman-employee of a motor vehicle can approach the Tribunal or there are any positive prohibitions in approaching the Tribunal instead of Commissioner for Workmen's Compensation. The type of employees that can be employed on a motor vehicle are driver/cleaners and other employees in case of goods and transport vehicles. The object enactment in Section 167 is to be ascertained as to under what circumstances a workman can approach the Commissioner for Workmen's Compensation for compensation. Section is very clear on this aspect that in case of death or injury to any person, if it gives rise for a claim for compensation under this Act and also the Workmen's Compensation Act the option is given to the employee. It is now well-settled proposition that the provision has to be read as appearing in the section. However, if any difficulty is encountered, it is open for the Courts to take assistance from the preamble of the section. It is not in dispute that the provision is a beneficial provision in the interest of the workman covered under the provisions of the Workmen's Compensation Act. The distinction between the provisions of the Workmen's Compensation Act and the Motor Vehicles Act are that establishing negligence on the part of the driver is necessary for claim to be filed before the Tribunal. But, when we are considering the accident caused either to the driver or other employees other than the driver, the issue has to be considered on a different perspective. When an employee covered by the provisions of the Act and if he is involved in the accident two courses are open. One by filing a claim before the Tribunal and other by filing a claim before the Commissioner for Workmen's Compensation. But, however, when a claim is made before the Commissioner for Workmen's Compensation, is it necessary that the claimant-employee has to establish the negligence on the part of the driver of the vehicle. This issue has been dealt with by the Full Bench referred to above. In case of compensation, it is restricted to the provisions of the Workmen's Compensation Act, the driver or other employees are not required to prove the negligence of the driver of the vehicle. Even if the driver is injured or dies negligence need not be established either by the L.Rs. of the deceased driver or other injured employees or their L.Rs. But, however, if the compensation is claimed beyond the Workmen's Compensation Act, in such an event, the negligence on the part of the driver has to be established, in which event, the compensation has to be computed under the provisions of the Motor Vehicles Act. If the compensation is awarded to the extent of the insurance liability, it is required to be restricted to the compensation available under the provisions of the Workmen's Compensation Act. Over and above that amount, the owner is solely made responsible for the payment of compensation. But, however, if the driver himself is injured or dies in the motor accident on account of his own negligence the application can be laid only under no fault liability.
36. Thus the following principles can be deduced:
(a) In case of workman involving himself in accident on account of his own negligence, he cannot be allowed to claim the compensation under the provisions of the Motor Vehicles Act as it cannot be said to be giving rise to a claim under both the Acts as negligent on the part of the driver is an essential element to be proved for approaching the Tribunal under the Motor Vehicles Act. The workman or in case of his death, have to necessarily approach the Commissioner of Workmen's Compensation.
(b) However, such person or his legal heirs are entitled to seek compensation either under Section 140 or 163-A of Motor Vehicles Act.
(c) If the employees of the owner of the motor vehicle are involved in accident arising out of and in the course of employment, they are not required to prove negligence on the part of the driver of that vehicle to the extent of amount allowable under Workmen's Compensation Act. But, however, if they intend to claim higher amount under the provisions of Motor Vehicles Act under fault liability, the negligence of the driver has to be established before the Tribunal. In such an event, the liability of the Insurance Company is restricted to the amount permissible under the Workmen's Compensation Act and the balance liability has to be fastened on the owner of the vehicle.
37. Therefore, by applying of the above said principles, the L.Rs. of the deceased driver, in the instant case are not entitled to claim the compensation under Section 166 of Motor Vehicles Act, but they are entitled to make a claim before the Commissioner for Workmen's Compensation. However, the Tribunal allowed the claim under no fault liability plus Rs. 13,000/- for loss of consortium and funeral expenses. In view of the fact that the L.Rs, of the deceased driver had already spent considerable time by approaching the Tribunal, this Court finds directing the L.Rs, to again approach the Commissioner for Workmen's Compensation would cause further hardship.
38. Therefore, in interest of rendering substantial justice to the victim, I am inclined to treat the application filed by the L.Rs. under Section 163A of the Motor Vehicles Act, duly restricting the liability of the insurance under the Workmen's Compensation Act calculated on the basis of Rs. 1,000/- as monthly salary. By applying the provisions of Section 4-A of the Workmen's Compensation Act the compensation is worked out to Rs. 98,530/- (500 x 197.06).
39. Accordingly, the claimants are entitled for a sum of Rs. 98,530/- inclusive of the amount already awarded with interest at the rate of 12 percent per annum from the date of petition till the date of payment. The 1st and 2nd respondents are jointly and severally made liable for payment of the aforesaid amount. The C.M.A. is, accordingly, allowed to the extent indicated above.