Sri Mohammed Iqubal vs Sri Mahadev and Others

K. Govindarajulu

The claimant in MVC. No. 469/2001 on the file of the Principal Civil Judge (Senior Division) and Additional MACT - Hubli is the appellant. The parties will be referred according to their ranking before the MACT for convenience.

Facts necessary for the consideration of the present appeal are as follows:

It is the case of the claimant that on 7.5.1998, the petitioner was travelling in a bus bearing registration No. KA17 F/180 from Huvina Hadagali to Belgaum. The bus was near Jigalur at about 7.30 p.m., then the driver of the lorry bearing registration No. KA 22/4-915! has driven the lorry rashly and negligently and dashed against the bus in which the petitioner was employed and driving his KSRTC bus. So, it resulted in accident. For the pain, suffering and agony suffered by him, seeks for compensation of Rs 3.5 lakhs.

The Insurance Company has entered appearance, filed objections, called upon the claimant to prove the accident, its impact contend that the claim is exaggerated, also contend that the accident is not on account of the driver of the lorry but on account of the negligent driving of the petitioner, seeks for absolving the Company.

After framing of issues, P.W. 1 examined is the claimant. A witness is examined on behalf of the claimant. In response, R.W.1 is examined. Exs.P.1 to 16 are marked. Exs.R.1 and 2 are marked. The learned Member of the Tribunal while appreciating the material evidence has held that the claim application of the claimant is not maintainable u/s 166 of the Motor Vehicles Act as the claimant, has an alternative remedy under the provisions of the ESI Act and dismissed the claim application. The same is challenged by the appellant in this appeal.

The learned Advocate for the claimant in the grounds of appeal contend that the finding recorded by the Tribunal that the claim application is not maintainable is incorrect. The driver of the lorry being solely responsible, the claim of the claimant is maintainable. As on the date of the accident, the claimant was aged about 51 years, suffered disability and is supported with the evidence of P.W.2, who has certified that there is permanent disability to an extent of 30% to the right limb, 15% to back and cannot drive the vehicle properly and places reliance on Ex.P. 15. It is also contended that the driver of the lorry is charge sheeted so, the claim is maintainable, so seek for compensation.

On the other hand, the learned Advocate for the Insurance Company while supporting the order of the learned trial Judge contend that the material averments prove that the claimant was an employee covered under the ESI Act. In view of the mandate u/s 61 of the ESI Act read with Section 53 of the ESI Act claim application is not maintainable so pray for dismissal of the appeal.

Carefully considered the material submission. The accident is admitted. The contention that the charge sheet is filed against the driver of the lorry is not disputed. So, the point that arises for consideration is as under: -

Whether in the facts of the case the claim application u/s 166 of the Motor Vehicles Act is not maintainable?

This subject is considered by a Division Bench of this Court in Hindustan Aeronautics Limited Vs. P. Venu Perumal and Others reported in AIR 1972 Mysore 255. This Court has held that the provisions of Section 61 of the ESI Act is not attracted, when the claim is for enforcement of tort. So, the finding recorded by the learned trial Judge is bad in law. It is liable to be set aside. Accordingly, it is set aside. The appeal is allowed. As the compensation is not fixed, the matter is remitted to the Tribunal for determination of the compensation. The Tribunal shall consider the evidence and fix the compensation.