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1) The appellants/claimants are dependants of the deceased Venkateswara Rao who was driver of lorry bearing No.AP 16 X 6788 belonging to the 1st respondent and insured with the 2nd respondent/insurance company. The deceased died on 15.10.2005 at about 5.00 A.M near Pudur Railway Gate, Vaniyambadi of Vellore of Tamilnadu State. As the railway gate was closed, the deceased stopped his lorry and thereafter suffered sudden chest pain and collapsed. The deceased died of sudden heart attack. Ex.A-3 Post Mortem certificate of the deceased disclosed that he died of myocardial infraction (Heart Attack). In those circumstances, the claimants approached the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Krishna at Machilipatnam and filed M.V.O.P.No.8 of 2006 claiming compensation of Rs.6,00,000/- for death of the deceased under Section 163-A of the Motor Vehicles Act (in short, the Act). The lower Tribunal negatived the appellants' claim for compensation on the ground that they failed to show that death of the deceased resulted from an accident arising out of use of a motor vehicle.
2) The above facts in this case are not in dispute. There is also no dispute that Ex.A-5 insurance policy issued by the 2nd respondent for the lorry covered risk relating to the driver. It is contended by the appellants' counsel that in a claim under Section 163-A of the Act, proof of negligence resulting in the accident causing death of the deceased is not necessary as distinguished from a claim under Section 166 of the Act. It is further contended that as the deceased died during the course of his employment as driver of the insured lorry, the insurer as well as the insured are liable to pay compensation for death of the deceased. It is also contended that under Section 167 of the Act, the claimants are entitled to choose either of the fora under the Motor Vehicles Act and the Workmen's Compensation Act to claim compensation for death of the deceased.
3) For exercising option under Section 167 of the Act, the claimants have to show that they have got cause of action to claim compensation under the Motor Vehicles Act as well as under the Workmen's Compensation Act, 1923. Section 167 of the Act reads as follows:
"167 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."
Basically the claimants have to plead and prove that their claim for compensation falls under the Motor Vehicles Act also. Without the petitioners' claim falling under any of the provisions of the Motor Vehicles Act, the claimants have no option to elect or select one of the two fora under the Motor Vehicles Act and the Workmen's Compensation Act to initiate proceedings for compensation for death of the deceased.
3) As pointed out earlier, the appellants/claimants have chosen to make a claim herein under Section 163-A of the Act. Section 163-A of the Act is a special provision for payment of compensation on structured formula basis. Section 163-A of the Act reads as follows:
"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 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 out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
(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 Ga?ette, from time to time amend the Second Schedule."
Sub-Section (2) of Section 163-A of the Act is specific in its terms to the effect that the claimant or claimants are not required to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or of any other person. Though Sub-Section (2) of Section 163-A of the Act dispenses with pleading as well as proof of any wrongful act or negligence resulting in death of the deceased, Sub-Section (1) of Section 163-A of the Act postulates that the death occurred due to accident arising out of the use of motor vehicle. 'Accident' is thus the basis for making any claim under Section 163-A of the Act. No doubt, the deceased driver Venkateswara Rao died while he was using the motor vehicle. But the question is whether the death was due to any 'accident' arising out of use of motor vehicle. The claimants would be entitled for compensation in case facts in this case proved that the deceased died in an accident arising out of use of motor vehicle. Admittedly the deceased stopped his vehicle at a level crossing when the gate was closed at the level crossing, and the deceased was waiting with his lorry to cross the railway line after the train passed on that railway line. Meanwhile the deceased suffered massive and sudden heart attack and collapsed in cabin of the lorry itself. Whether this incident amounts to an 'accident', is the question.
4) It is contended by the appellants' counsel that since the Motor Vehicles Act and the Workmen's Compensation Act are beneficial legislations, wide and extended interpretation of the provisions of those enactments have to be given in order to benefit the claimants who suffered injuries or who lost their bread winner.
5) In Skandia Insurance Co. Ltd. V. Kokilaben Chandravadan1 while considering Section 94 of the old Motor Vehicles Act, 1939 the Supreme Court observed:
"The provision has been inserted in order to protect the members of the Community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads."
Consequently the Supreme Court held that the insurance companies cannot defeat the claims by incorporation of exclusion clauses other than those authorised by Section 96 of the old Act of 1939 and by providing that except and save to the extent promoted by Section 96, it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risk.
In Shivaji Dayanu Patil V. Vatschala Uttam More2, the Supreme Court was considering a case where an oil tanker carrying highly inflammable petrol met with an accident and turned turtle. In such condition, petrol was leaking from the tanker and while general public were collecting the leaking petrol, after a period of 4 1/2 hours of the accident, there was explosion due to fire resulting in burn injuries to some persons standing nearby. In those circumstances, the Supreme Court upheld granting of compensation to victims who suffered burn injuries in that explosion by observing as follows:
"35. This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In S.92- A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation u/S.92-A, the casual relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be, connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in S.92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
This was a case where there was undisputedly an accident. What all the Supreme Court interpreted herein is the clause "arising out of the use of motor vehicle".
6) In Kore Laxmi V. United India Insurance Company Limited3 of this Court, dependants of the deceased driver were the claimants and it was a case where the deceased driver was unable to control the lorry and dashed another lorry coming from the opposite direction. Division Bench of this Court held in those circumstances that dependants of a driver due to whose negligence the accident took place are entitled to claim compensation under Section 163-A of the Act. In this case also, death of the deceased occurred due to an accident admittedly.
In United India Insurance Co. Ltd. V. C.Mallikarjuna4 of this Court, the deceased was proceeding on the lorry and when the driver applied sudden brake in a rash and negligent manner, the deceased cleaner fell down from the lorry and suffered instantaneous death. Since death of the deceased cleaner occurred in that case in an accident which occurred due to rash and negligent driving of the vehicle by its driver, this Court upheld grant of compensation to the dependants of the deceased cleaner.
In Bhupati Prameela V. Supreintendent of Police, Vizianagaram5 Division Bench of this Court awarded compensation to dependants of the deceased police person who died in an extremist landmine blast when the deceased was travelling in a police vehicle. Here also there is an accident which resulted in death of the deceased police person.
In my opinion, none of the above decisions of this Court would clothe the appellants/claimants herein to compensation for death of the deceased driver who died due to heart attack when the lorry was in stationed position near railway level crossing.
7) In Rita Devi V. New India Assurance Co. Ltd.6, the Supreme Court upheld award of compensation to dependants of the deceased driver who was murdered by a passenger in the same vehicle when the deceased was driving the vehicle. The Supreme Court held the murder to be an accidental murder by observing as follows:
"10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
In Jyothi Ademma V. Plant Engineer, Nellore Thermal Station7, the Supreme Court was considering a case under the Workmen's Compensation Act. The Supreme Court discussed the expression 'accident' interpreted in other countries, and observed:
"7. The expression 'accident' means an untoward mishap which is not expected or designed. 'injury' means physiological injury. In Fenton v. Thorley and Co. Ltd. (1903) AC 448, it was observed that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A. C. in Trim Joint District, School Board of Management v. Kelly (1914) A. C. 676 as follows: "I think that the context shows that in using the word 'designed' Lord Macnaghten was referring to designed by the sufferer".
6. Under Section 3 (1) it has to be established that there was some casual connection between the death of the workman and his employment. If the workman dies a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear, of the employment no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable."
In Jyothi Ademma (7 supra) the Supreme Court was considering a case of death of Workman due to heart attack during the course of his employment. In such a case, the distinction was made between death as a natural result of the disease which the workman was suffering from and a case of death for which employment was a contributory cause; and held that if the death was not only due to the disease but also due to the disease coupled with the employment, then it can be said that death arose out of the employment and the employer would be liable. After considering evidence on record in that case, the Supreme Court came to the conclusion that the deceased therein died of his heart disease and employment did not contribute for aggravation of the disease resulting in his death and that therefore the dependants of the deceased are not entitled for compensation.
8) In the case on hand, there is only evidence of P.W-1 who is wife of the deceased. No other evidence was let in by the claimants during enquiry in the lower Tribunal. Cleaner of the vehicle who was by the side of the deceased at the time of his death, was not examined. P.W-1 deposed in cross-examination that the cleaner phoned up to her and informed about death of her husband when the lorry was stopped at level crossing and about the cleaner observing the driver at the driver's seat with froth coming out from his mouth, after the train passed the level crossing. The deceased suffered heart attack when the lorry was in stationed condition and died then and there. Though P.W-1 claimed that her husband was aged 50 years, Ex.A-3 post mortem certificate gives apparent age of the deceased as 60 years. Ex.A-4 copy of driving licence of the deceased shows that he was aged 45 years by the date of accident on 15.10.2005, his date of birth being 10.03.1960. There is no evidence on record to show that employment of the deceased as driver of the heavy goods vehicle contributed aggravation to or accelerated his heart attack.
9) The Supreme Court in Shakuntala Chandrakant Shreshti V. Prabhakar Maruti Garvali8, considered the dispute whether the deceased died of accidental injury in the course of and out of employment. It was a case under the Workmen's Compensation Act. The Supreme Court held that in order to make a claim, proof of death during the course of use of motor vehicle or during the course of employment as driver is not sufficient and that it must be further proved that the said death was due to an accident. The Supreme Court made the following exhaustive discussion on the subject:
"23. Injury suffered should be a physiological injury. Accident, ordinarily, would have to be understood as unforeseen or uncomprehended or could not be foreseen or comprehended. A finding of fact, thus, has to be arrived at, inter alia, having regard to the nature of the work and the situation in which the deceased was placed.
24. There is a crucial link between the causal connections of employment with death. Such a link with evidence cannot be a matter of surmise or conjecture. If a finding is arrived at without pleading or legal evidence the statutory authority will commit a jurisdictional error while exercising jurisdiction.
25. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are : 1. Stress and strain arising during the course of employment 2. Nature of employment 3. Injury aggravated due to stress and strain.
26. The deceased was travelling in a vehicle. The same by itself cannot give rise to an inference that the job was strenuous.
27. Only because a person dies of heart attack, the same does not give rise to automatic presumption that the same was by way of accident. A person may be suffering from a heart disease although he may not be aware of the same. Medical opinion will be of relevance providing guidance to court in this behalf.
28. Circumstances must exist to establish that death was caused by reason of failure of heart was because of stress and strain of work. Stress and strain resulting in a sudden heart failure in a case of the present nature would not be presumed. No legal fiction therefor can be raised. As a person suffering from a heart disease may not be aware thereof, medical opinion therefore would be of relevance. Each case, therefore, has to be considered on its own fact and no hard and fast rule can be laid down therefor."
The Supreme Court finally concluded that the deceased cleaner who died while travelling in motor vehicle did not die of any accident and that his dependants are not entitled for any compensation for his death as it is a case of death due to heart attack only.
10) In the light of above evidence of P.W-1 and in the light of the above case law on the subject, I have no hesitation to find that death of the deceased in the present case is not one resulting from an accident either during the course of employment or during the course of use of a motor vehicle and that it was due to natural cause of heart attack and that the evidence on record does not indicate that employment of the deceased as driver of the heavy goods vehicle contributed or aggravated the natural cause of his heart attack. Thus, the lower Tribunal rightly negatived claim of the dependants of the deceased who are the appellants herein. The appellants are not entitled for compensation either under Section 163-A of the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923, and therefore are not having any option under Section 167 of the Motor Vehicles Act.
11) In the result, the appeal is dismissed. No costs.