New India Assurance Co. Ltd. Vs. Maimun Nisha and ors. - Court Judgment

Excerpt:
(a) accident's claim - forum--accident of motor vehicle--injured or dependants of deceased can choose either of the forms under workmen compensation act or motor vehicles act--in the instant case, collie of truck led in accident of truck--his defendants claimed compensation under motor vehicles act--choice of this forum--not against law. - p.k. deb, j.1. this appeal has been preferred by the above named insurance company under section 173 of the motor vehicles act, 1988 challenging the award of compensation granted in favour of the claimants-respondents in compensation case no. 71 of 1990 by 3rd addl. dis trict judge-cum-motor accidents claims tribunal, singhbhum (west) chaibasa.2. the predecessor of the claimants was a coolie in the offending vehicle truck no. bhn 8540 and he was having his monthly income at rs. 600/-. the truck in question met with an accident when the driver of the vehicle lost control over the same and it was overturned near village nawada due to mechanical defects. the deceased sustained severe injuries and he died almost instantaneously at the spot itself. learned court below held that the accident.....

Judgment:

P.K. Deb, J.

1. This appeal has been preferred by the above named insurance company under Section 173 of the Motor Vehicles Act, 1988 challenging the award of compensation granted in favour of the claimants-respondents in Compensation Case No. 71 of 1990 by 3rd Addl. Dis trict Judge-cum-Motor Accidents Claims Tribunal, Singhbhum (West) Chaibasa.

2. The predecessor of the claimants was a coolie in the offending vehicle truck No. BHN 8540 and he was having his monthly income at Rs. 600/-. The truck in question met with an accident when the driver of the vehicle lost control over the same and it was overturned near village Nawada due to mechanical defects. The deceased sustained severe injuries and he died almost instantaneously at the spot itself. Learned court below held that the accident occurred due to negligence of the driver and as such held that the claimants are entitled to compensation. While assessing the compensation, dependency was calculated at Rs. 400/-per month and yearly dependency at Rs. 4,800/- and as the deceased was aged about 50 years, a multiplier of 10 was used and a total compensation of Rs. 48,000/- was awarded. The insurance company was asked to pay the amount as the vehicle was found to be insured with the appellant insurance company under a comprehensive policy.

3. The appeal has been preferred only on the ground that the deceased being an employee of the owner of the vehicle as coolie in the vehicle itself, compensation claimed under the Motor Vehicles Act is not maintainable.

4. It has now been established as principle of law that the claimants can choose either of the forums under the Workmen's Compensation Act or Motor Vehicles Act to claim compensation. As such the claim petition was maintainable. About the liability 'any person' defined under Section 147(1)(b) as it stood before amendment also includes the person who was in the truck as an employee of the owner and hence I find that this appeal has got no force.

5. Mr. Mukhopadhyaya, appearing on behalf of the claimants-respondents has preferred a cross-objection in the appeal under Order XLI, Rule 22 of the Civil Procedure Code for enhancement of the compensation.

6. At the very outset, it has been objected to from the side of the appellant that such sort of cross-objection is not entertainable as under Rule 33 of Order XLI, an appellate court is not conferred with the right to reopen a decree which has become final. In this connection a judgment of the Kerala High Court in New India Assurance Co. Ltd. v. Kunhiraman Nambiar 1994 ACJ 1019 (Kerala), has been referred to.

7. The decree with regard to the quantum of compensation has never been challenged by the insurance company and only their liability has been challenged. In a case wherein the quantum has not been challenged, it is submitted on behalf of the appellant that enhancement of the decree cannot be considered by way of cross-objection under Order XLI, Rule 22 of the Civil Procedure Code. Where only the liability of the insurance company has been challenged and quantum which has become final between the co-respondents, cannot, by way of cross-objection, be challenged in the appeal.

8. Mr. Mukhopadhaya has referred to a judgment of this High Court, wherein it is held that cross-objection is maintainable in an appeal under the Motor Vehicles Act also. But that case related to the challenge of quantum of compensation. Moreover, on the factual aspect also, I find that the deceased was aged about 50 years and there is no challenge regarding the determination of the monthly dependency as fixed by the learned court below. Multiplier of 10 with relation to the age of the deceased is commensurate to the facts and circumstances.

9. I do not find any force in this cross-objection also. Both the appeal and the cross-objection are hereby rejected. No order as to costs.

Later order

Seen the petition filed by the respondents for withdrawal of the statutory amount deposited in the appeal.

Prayer is allowed. The amount may be disbursed to the claimants-respondents on proper identification by the Joint Registrar and the same shall be adjusted towards the final award.