Tajender Kaur vs Surjeet Singh

K. Kannan, J.—The appeal is against the dismissal of the petition for compensation filed under the Motor Vehicles Act. The petition had been filed by the legal representatives of the deceased who was said to be a driver in the insured''s vehicle who on transit was murdered. The petition for compensation under the Workmen''s Compensation Act appears to have been filed but it was dismissed. I do not have the copy of the order but the impugned judgment makes reference to dismissal of the petition under the Workmen''s Compensation Act.

The petition under the Motor Vehicles Act is made again substantially on the same contention that the deceased had met with his death during the time when he was driving the vehicle and transporting the good on behalf of his employer. The contention is that the death was on account of use of the motor vehicle and therefore, it should be compensated by the employer and insurer. This issue of whether the employer could be made liable for a death resulting to a driver who drives the vehicle came for consideration before the Gujarat High Court and the same was considered in National Insurance Company Vs. Gitaben Saitansinh Rajput and Others, . That was a claim made u/s 163A on similar facts of when the driver who was transporting goods on behalf of his employer was way laid and he was murdered in the same vehicle when he was sent for duty. The High Court held that the claimants were entitled for compensation from the employer and there was no negligence on the part of the deceased who should be said to have contributed to the death. The High Court upheld the claim for compensation u/s 163-A on strict liability basis as death occurring on account of accident.

Though it is contended that even earlier the claim petition was dismissed only on the ground that the representatives had not proved employer-employee relationship when the petition was filed under the Employees Compensation Act (previously Workmen''s Compensation Act), I must observe that the said judgment itself has not been placed by parties before the Court below for drawing an appropriate inference on the actual grounds used against the representatives of the deceased. A driver of a vehicle who was transporting goods ought to be taken as a person going at the behest of the owner of the vehicle. The owner of the vehicle must have a large explanation to give about how the deceased came to be incharge of the vehicle with valuable goods. A relationship of employer and workman will have to be made in every situation where the driver is driving the owner''s vehicle and any untoward event takes place. Since it was not a case of theft by the driver, a case of entrustment by the owner to a driver must be presumed. There is no such defence brought in this case except an evasive reply that there was no relationship of employer and workman. I discard the defence that there was no employer-employee relationship and hold that the very fact that the deceased at the wheels driving the owner''s vehicle was sufficient presumption of the existence of such a jural relationship.

Even the dismissal of the petition under Workmen''s Compensation Act cannot conclude the issue. Section 167 of the Motor Vehicles Act reads as under:-

Option regarding claims for compensation in certain cases. Notwithstanding anything contained in the Workmen''s Compensation Act, 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 the Chapter X claim such compensation under either of those Acts but not under both.

This Section bars a claim made under one Act to prosecute a case under another and also vice versa. It may be that a person who secures compensation under the Workmen''s Compensation Act cannot duplicate his claim under the Motor Vehicles Act and vice-versa. If a petition under the Workmen''s Compensation Act or Motor Vehicles Act is dismissed for any reason regarding non-maintainability then there could be no bar against prosecution of the petition in a forum of competent jurisdiction. In a petition u/s 163-A all that is necessary is to see whether the person was driving the vehicle in his usual course of business and in the course of his employment and whether death or injury had resulted by the use of the vehicle. If this situation exists, I have no doubt in my mind that a petition u/s 163A will be perfectly competent. Considering the fact that the deceased was aged 22 years and he was said to be transporting 100 bags of sugar in truck for offloading the same at the office of PUNSUP, I hold that the employer shall be responsible for the consequences of his death and for the same reason, the insurer is bound to indemnify the employer for the claim arising out of the said accident. Applying the yardstick u/s 163-A, I will find that after making a deduction of 1/3rd on Rs. 2500/- per month stated to be income of the deceased, the annual dependency would come to Rs. 20,000/- and the amount for compensation shall be Rs. 3,40,000/- ( Rs. 20,000x17). In addition to this, there shall be an amount of Rs. 9500/- towards the general damages of funeral expenses, loss of consortium and loss to estate. The total compensation payable shall be Rs. 3,49,500/- with an interest @9% from the date of petition till the date of payment. The liability shall be on the insurer.

The award passed by the Tribunal is set aside and the appeal is allowed to the above extent.