T. Lakshmana Reddy Vs. the Government of India - Court Judgment

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labour and industrial - legal representative - article 226 of constitution of india - death of employee during pendency of writ petition against compulsory retirement - claim of widow of such employee over gratuity and other retiremental benefit on basis of will executed by him - application for impleadment in such writ petition filed by widow - writ petition filed by employee to enforce his personal rights - such right came to end on his death - claim over retiremental benefit to be decided by civil suit. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - 319 to the same effect 'it is well settled that where the right is purely personal the right to sue does not survive, actio personalis mortitur cum persona.raghuvir, j.1. the writ petitioner was ordered to retire compulsorily on 28th october, 1975. pending the writ petition, he died on 7th september, 1978. his spouse in the application stated she is the legatee under the last testament of the deceased executed 6th march, 1978. in the bequest she claims gratuity, pensions, postal cumulative deposit amounts, personal effects and immovable properties of the deceased. she, therefore, seeks to come on record in the writ petition. the application is resisted, inter alia, on the ground that it is not for this court to interpret the testament of the deceased in art. 226 proceedings. the petitioner should approach a civil court if she claims any right under the will. 2. a learned single judge of this court directed the petition be heard by a division bench and consider the theory of 'rehabilitation of a dead man' in this application. whether or not in a service writ petition lr application is maintainable was considered in venkatachary v. state of a.p. 1969 (1) an. w.r. 1 in that it was shown how a relief in art. 226 is different from relief in a suit and it was explained in a writ petition personal rights are dealt. the cause, therefore does not service the death of civil servant. third parties including the legal representatives cannot seek relief as a successor even if there is infraction of any of their rights. individual rights of such persons should be referred to a suit. the ratio in the case was reiterate in p. v. sarma v. s. c. railways employees co-operative credit society a.i.r. (1977) a.p. 319 to the same effect 'it is well settled that where the right is purely personal the right to sue does not survive, actio personalis mortitur cum persona.' 3. similar question was considered by rajasthan high court in keshavpuri v. union of india 1980 (1) s.l.r. 215. that court agreed with the view taken by this court. the punjab high court in manmohan anand v. state of punjab (1972) s.l.r. 852 and gujarat high court in ibrahim bhai v. state [1969-ii l.l.j. 67] took a different view. these two cases were considered in the two decisions of this court. the allahabad case in jagdish prasad v. united provinces govt. 0044/1956 : air1956all114 arose in a suit, therefore strictly not on the point at issue. 4. the order of reference is 'theory of rehabilitation' may be considered by a division bench. because of reference, we have allowed the learned counsel for the petitioner to argue to find out whether it is possible for this division bench to agree with the view taken by the gujarat and punjab high courts. we mean no disrespect to the learned single judge, who made the reference, if we hold the issue does not require any further consideration in this court. following the view of this court, the petition are dismissed. no costs. no leave to supreme court.