Mavjibhai Rudabhai Dafda Vs. Manji Soma Dangar and ors. - Court Judgment

Excerpt:
- - the tribunal has failed to consider this material aspect which has resulted into miscarriage of justice.j.n. bhatt, j. 1. a short but substantial question which has surfaced in this appeal is as to whether a contractor working for the government could be held liable for compensation in a claim petition preferred under the motor vehicles act and based on fault liability on account of a road accident causing death of a workman while doing the road rolling work?2. in order to appreciate the merits of the aforesaid point in focus, it would be necessary to refer to the relevant facts and circumstances leading to this appeal.3. the appellant is the original opponent no. 5, whereas the respondent nos. 4 to 8 are the original claimants and respondent nos. 1, 2, 3 and 9 are the original opponent nos. 1, 2, 3 and 4 and they are hereinafter referred to as the 'original claimants' and 'original opponents' for the sake of convenience and brevity.4. the accident in question occurred on 20.3.1981 at about 3.30 p.m. on karmal dam site in rajkot district. one deceased hari vala was knocked down and crushed under the road roller no. grr 2042. therefore, the heirs and legal representatives of the deceased, original claimant nos. 1 to 5, filed motor accident claim case no. 484 of 1981 before the motor accident claims tribunal (main), rajkot, for rs. 1,00,000/- as compensation contending that the driver of the said road roller was rash and negligent and responsible for the accident. the original opponent no. 1 was the driver, original opponent nos. 2 and 3 were the owners and original opponent no. 4 was the insurer, which came to be deleted in the course of the proceedings and original opponent no. 5 (appellant herein) was the government contractor.5. the claim petition was challenged by the opponents. original opponent no. 5, the contractor, also questioned his liability for the payment of compensation. according to his contention, he was not liable for the payment of compensation in the proceedings under the motor vehicles act. on the facts and circumstances of the case, the tribunal reached the conclusion that the accident in question had resulted on account of rash and negligent driving on the part of the driver of the road roller, original opponent no. 1 and there was no contributory negligence on the part of the deceased. it was also found by the tribunal that the deceased hari vala died on account of the injuries sustained by him in the said accident. as regards the liability, the tribunal held that original opponent nos. 1, 2 and 3 are jointly and severally liable , for the payment of compensation to the claimants. it was found that there was no insurance in respect of the offending road roller. therefore, original opponent no. 4, insurance company, came to be deleted. however, the original opponent no. 5, mavjibhai, the appellant herein, was found to be liable for the payment of compensation to the extent of rs. 18,000/- out of the amount of compensation of rs. 46,500/-awarded by the tribunal.6. being aggrieved by the said finding with regard to the liability, the original opponent no. 5, mavjibhai, has come up in this first appeal challenging the legality and validity of the impugned judgment and award against him.the sole contention raised before us in this appeal on behalf of the appellant is that the appellant who was a contractor is not liable for the payment of compensation to the extent of rs. 18,000/- awarded by the tribunal against him. this contention appears to be full of substance.7. admittedly, the appellant, original opponent no. 5, the contractor, was not the driver, owner or insurer in respect of the offending road roller. however, the tribunal fastened him with the liability for the payment of compensation to the extent of rs. 18,000/- with interest and proportionate costs thereon out of the total amount of rs. 46,500/-, holding that he was the employer of the deceased and, therefore, he would be liable to the extent under the workmen's compensation act, 1923. with due respect, this finding, in our opinion, is not only erroneous but is illegal.8. it is an admitted fact that the claim application was filed for the payment of compensation by invoking the provisions of section 110-a of the motor vehicles act, 1939. it was not an application under the workmen's compensation act, 1923. however, the tribunal placed reliance on clause no. (6) of the tender agreement produced at exh. 38. no reliance could be placed on such a clause in tender agreement produced at exh. 38, for fastening the liability for the payment of compensation under the motor vehicles act. clause (6) of the said tender agreement produced at exh. 38 reads as under:the piece worker shall be responsible for and shall pay any compensation to his workman payable under the workmen's compensation act, 1923 (8 of 1923) (hereinafter called the 'said act'), for injuries caused to workman as principal under sub-section (1) of section 2 of the said act on behalf of the piece worker. 9. at the time when the unfortunate road accident occurred, the road roller was engaged for rolling work which was not a part of contract work given to the original opponent no. 5. it is not in dispute that the rolling work was to be done by the department. although construction of road work was to be done by original opponent no. 5, the contractor, rolling work was to be done by the department and not by the contractor, original opponent no. 5. it is true that the deceased was a workman engaged by the original opponent no. 5, the contractor, for the rolling work to be carried out by the department of the government. however, the liability of the contractor would be limited to pay the compensation to his workman as payable under the workmen's compensation act, 1923, in view of clause (6) of the tender agreement produced at exh. 38. in the event of any application for compensation under the workmen's compensation act, there would have been no defence on the part of the contractor, original opponent no. 5, not only in view of the aforesaid clause (6) but also under the provisions of section 12 of the workmen's compensation act. in such a case, two remedies were open for the legal representatives of the deceased to pursue for the compensation; one under the workmen's compensation act and another under the motor vehicles act as the death occurred on account of and by use of the motor vehicle. the claimants selected the forum under the motor vehicles act. under the motor vehicles act, the award can be passed against the tortfeasors and the persons vicariously liable, that is, the owner of the vehicle. the original opponent no. 5, admittedly, was neither the driver nor the owner in respect of the offending vehicle. therefore, in our opinion, the contractor, original opponent no. 5, cannot be held liable for the payment of compensation in a proceeding arising under the motor vehicles act as it is based on fault liability. the tribunal has failed to consider this material aspect which has resulted into miscarriage of justice. in our opinion, the tribunal should not have held the original opponent no. 5, the contractor, liable for the payment of compensation even under clause (6) of the tender agreement, exh. 38. in the result, this appeal is required to be allowed. the finding of the tribunal that original opponent no. 5, appellant herein, is liable for the payment of compensation to the extent of rs. 18,000/-with interest and proportionate costs thereon is required to be quashed.10. in the result, the appeal is allowed. in the circumstances of the case, there shall be no order as to costs.