Khiti Sahu Vs. Yashwant Kumar Sahu and Another - Court Judgment

Order (Oral)

(APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988)

I. M. Quddusi, J.

1. This appeal, filed by the appellant, arises from the impugned award dated 30th April, 2007, passed by the First Additional Motor Accident Claims Tribunal, Mahasamund in Claim Case No. 10/1996, awarding a total sum of Rs. 4,70,000/- to the claimant, fixing the liability on the appellant, herein.

2. The, brief facts, in nutshell, are that the injured/claimant Yashwant Kumar Sahu was working as a Tractor Mechanic in the vehicle repairing workshop of the appellant/Non-applicant No.1. On 19.9.1995 Non-applicant No.2 (owner of the tractor) came to the work-shop of Non-applicant No.1 and requested to get his tractor repaired which is standing at Basna near Prakash Medical Stores. Therefore, on the instructions of Non-applicant No.1, the injured/claimant went to the spot and started repairing the tractor. During the course of repairing the tractor, the jack on which the vehicle was resting got slipped and thereby tractor-trolley fell down on the body of the injured/claimant. In that accident the backbone of the injured/claimant fractured and he also received grievous injuries on his waist, causing him permanent disability.

3. The claimant/injured filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 5,00,000/- under various heads.

4. Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded a total sum of Rs. 4,70,000/- to the claimant along with interest @ 6% p.a. fastening the liability upon the appellant/non-applicant No.1.

5. We have heard learned counsel appearing for the parties, perused the impugned award and the papers available on record.

6. The Claims Tribunal framed as many as 8 issues. Except the issue No.3, which was decided as not proved, all other issues i.e. issue Nos. 1, 2, 4 and 5 have been decided in affirmative. A question arose before this Court as to whether the claim petition under Section 166 of the Motor Vehicles Act, 1988 was maintainable against the owner of the motor-vehicles repairing workshop ?. The Claims Tribunal has framed the Issue No.7 Whether the application of the applicant is maintainable before the Tribunal and the answer is that it was already decided on 01.8.1998.

7. Before proceeding further, it is necessary to peruse the provisions of Section 165, 166, 167 and 168 of the Motor Vehicles Act, 1988, which read as under :

"(165.) Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification 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, or damages to any property of a third party so arising, or both.

Explanation.-For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 { and section 163A }.

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-

(a) is, or has been, a Judge of a High Court, or

(b) is, or has been a District Judge, or

(c) is qualified for appointment as a High Court Judge {or as a District Judge}

(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them."

"(166.) 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 authorized 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 al 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.) xxx

(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."

(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.

(168.) Award of the Claims Tribunal. (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.

8. In Section 165 of the Act, 1988 it has been provided inter alia that the State Government may constitute a Motor Accidents Claims Tribunal 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, or damages to any property of a third party so arising or both. Section 166 of the Act, 1988 inter alia provides that an injured person or owner of the property may file an application for compensation. Section 167 of the Act, 1988 gives an opportunity to the claimant to file a claim petition either before the Commissioner for Workmen's Compensation or before a Claims Tribunal but not under both Acts. Section 168 of the Act, 1988 inter-alia provides that the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. But other than the insurer, owner or driver does not come within the ambit of the liability to pay compensation under the Motor Vehicles Act, 1988.

9. Further, the use of motor vehicle may be, even when the vehicle is stationary, but for the purpose of claiming compensation under Section 166 of the Act, 1988 it is necessary to prove the negligence of the driver or the wrongful act, neglect or default of the owner but sub section (2) of Section 163-A of the Act, 1988 provides that 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.

10. In the instant case the Tribunal has awarded compensation to be paid by the owner of the motor-vehicles repairing workshop who was neither the owner/driver nor the insurer of the offending vehicle on the date of accident in question.

11. Learned counsel for the respondent No.1 i.e. the claimant has placed reliance on the judgment and order dated 06.10.2006 passed in M. A. No. 1200/1998 by learned Single Bench of this Court in which it has been held that the claimant sustained bodily injury in an accident arising out of the use of motor vehicle, then the claim petition under the Motor Vehicles Act is maintainable and as per the provisions of Section 167 it is open for the claimant to opt for compensation either under the provisions of Motor Vehicles Act, 1988 or under the provisions of Workmen's Compensation Act, 1923. This appeal was filed by the present appellant against the order dated 1.8.1998 when the issue No. 7 was decided by the M.A.C.T. as a preliminary issue and the claim petition was held as maintainable and being aggrieved the present appellant had filed the M.A. No. 1200/1998 in which it was held as above.

12. In view of the above, this is not in dispute that the claim petition could be maintainable against the insurer, owner and driver, and in the claim petition the claimant had impleaded the owner of the motor vehicle also as one of the party/respondents. Therefore, it could not be said, at the initial stage, that the claim petition against one of the non-applicants i.e. the owner of the vehicle was not maintainable. In a claim petition where the owner of the offending vehicle was one of parties before the Tribunal, the claim petition was maintainable but the question before this Court has arisen whether the owner of the vehicle repairing workshop is liable to pay compensation under Section 166, in view of the provisions of Section 168 of the Act, 1988. In the case on hand, the Tribunal has held that the owner of the offending vehicle is not liable to pay compensation, instead the appellant i.e. the owner of the vehicle repairing workshop, is liable to pay the compensation. In the claim petition the claimant had not made any specific prayer against the owner of the vehicle repairing workshop but prayed for compensation jointly and severally from the non-applicants.

13. In our opinion when the claimant was allegedly an employee of the appellant, who was the owner of the motor vehicles repairing workshop and it was claimed that the accident had occurred during the course of employment, the driver or the owner of the vehicle was not held responsible for the said accident though the vehicle was stationary and for all purposes it was deemed to be in use, the Claims Tribunal had no jurisdiction to direct the appellant to pay compensation.

14. In view of the above, we allow this appeal and set aside the impugned award holding that the claim petition against the appellant was not maintainable under the provisions of the Motor Vehicles Act, 1988. No order as to costs.

15. The liberty is granted to the claimant to approach the forum available to him under the law i.e. before the Commissioner for Workmen's Compensation.

16. At this stage learned counsel for the appellant submitted that the findings given by the M.A.C.T. may not be considered by the Commissioner for Workmen's Compensation. We are of the opinion that the Commissioner under no law can consider the findings of the Claims Tribunal in case a claim petition is filed before it, the same is liable to be decided independently on the basis of the evidence adduced before it and therefore there is no question of giving any direction in this regard.

17. It is to be noted that the claim petition was filed by the claimant before the Claims Tribunal on 11.3.1996 which was decided on 30.4.2007 and this appeal was filed on 14.6.2007 by the present appellant. Therefore, the Commissioner for Workmen's Compensation may liberally decide the application for condonation of delay, if any, filed by the injured/claimant.

18. The amount which has been deposited by the appellant shall be permitted to be withdrawn by the appellant.