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Judgment
Hasnain Massodi, Judge
On 3rd May, 1998, a passenger vehicle - Tata-407 bearing registration No. JK02D-1419 met with fatal accident at Rahya Morh. The
vehicular accident gave rise to three claim petitions filed by legal representatives of the deceased passengers traveling in the vehicle or the
passengers injured in the accident. Smt. Ram Devi-respondent No. 1 herein, who lost her son-Tarsem Kumar in the unfortunate accident, was one
amongst the three claimants to approach Motor Accident Claims Tribunal, Jammu for compensation. In other two petitions, deceased Tarsem
Kumar was shown to have been driving the offending vehicle at the time of accident. Smt. Ram Devi-mother of deceased Tarsem Kumar,
however, pleaded in her claim petition that her son was traveling as passenger in the offending vehicle at the time of accident.
One of the claim petitions arising out of the accident titled ""Kamla Devi and other v. United India Insurance Co. Ltd."", wherein deceased
Tarsem Kumar was shown as driver of the offending vehicle, was allowed and award was passed in favour of the claimants. The award was
questioned in Civil 1st Miscellaneous Appeal before the High Court. It was insisted in the appeal that one Raju Singh, not Tarsem Kumar, was
driving the offending vehicle at the time of accident and that learned Tribunal had wrongly held Sh. Tarsem Kumar to have been driver of the
offending vehicle at the time of accident. The appeal was dismissed and the findings returned by learned Tribunal upheld.
It is pertinent to point out that the accident led to registration of case FIR No. 115/98 u/s 279/337 RPC at Police Station, Vijaypur.
Investigation reveals that the offending vehicle was being driven by Shri Rajeshwar Singh alias Raju S/o Lab Singh R/o Raya, at the time of
accident and not by deceased - Tarsem Kumar, son of respondent No. 1. The investigation was concluded as proved against Shri Rajeshwar
Singh alias Raju as the charge sheet alleging commission of offences punishable under S.s 279, 337, 302, 304-A RPC red with 3/181 Motor
Vehicles Act, 1988, filed against said Rajeshwar Singh alias Raju in the Competent Court.
The respondent No. 1 realizing that as her son Tarsem Kumar was shown in other two claim petitions, to have been driving the offending vehicle
at the time of the accident, she may be held not entitled to compensation under the Motor Vehicles Act, on the ground of being dependent of a
tort-feaser, filed an application before Motor Accident Claims Tribunal, Jammu for grant of leave to withdraw the claim petition with liberty to file a
fresh petition before the Competent Authority. The application was contested by the present appellant. It was insisted that as the respondent No. 1
had exercised her option in terms of Section 167, Motors Vehicles Act, 1988, and filed a claim petition before Motor Accident Claims Tribunal,
Jammu, she was estopped from changing the course mid-stream and file a fresh petition before Commissioner under Workmen's Compensation
Act, 1923 (for short the Commissioner). The Tribunal observing that once it was held by the High Court in Civil First Miscellaneous Appeal arising
out of the same accident that Shri Tarsem Kumar (respondent No. 1's son) was driving the offending vehicle at the time of accident, leaving no
room for any doubt that said Tarsem Kumar was driver of the of fending vehicle, there was no bar for the respondent No. 1 to withdraw the
petition and approach the Competent Forum. The Tribunal on 27.03.2006, accordingly, permitted the respondent No. 1 to withdraw the petition
with leave to approach Competent Forum, if so, advised.
The respondent No. 1 after she was granted leave by the Tribunal, to withdraw the claim petition under Motor Accident Claims Tribunal,
Jammu and approach the Competent Authority, on 29th April, 2006, filed a claim petition before the Commissioner (Assistant Labour
Commissioner), Jammu. The respondent No. 1's case before the Commissioner was that her son-an employee of Smt. Kamla Devi -- respondent
No. 1 in the claim petition died on 3rd May, 1998 during course of his employment and that the respondent No. 2 in the claim petition--present
appellant, with whom the offending vehicle owned by the respondent No. 1 in the claim petition was insured, was liable to indemnify the owner and
to pay the compensation under the Act to her.
The Commissioner summoned the respondents. The owner of the vehicle admitted the averments made in the claim petition. Respondent No. 2
-- present appellant, however, sought dismissal of the claim petition on the grounds that it was time barred and further that it was incompetent
inasmuch as the respondents No. 1 had already exercised her option u/s 167 Motors Vehicles Act, 1988, by filing the claim petition before Motor
Accident Claims Tribunal, Jammu and was not competent to exercise the option, second time. It was further pleaded that as the respondent No. 1
in her claim petition before Motor Accident Claims Tribunal, Jammu, took the stand that her son was passenger in the offending vehicle, she was
estopped from making a shift in her stand and pleading that her son was driving the offending vehicle at the time of fatal accident. The respondent
No. 2 denied that the deceased - Tarsem Kumar was an employee of respondent No. 1 or was driving the offending vehicle at the time of
accident. It was also denied that Shri Tarsem Kumar died during the course of employment. The appellant pressed into service conclusions arrived
at by the Investigating Officer to substantiate its stand.
The Commissioner, on perusal of the pleadings, settled following issues:-
Whether the deceased Tarsem Kumar falls under the definition of Workman as defined under the Workmen's Compensation Act, 1923 (OPP);
Whether deceased Tarsem Kumar met with an accident arising out of and in the course of his employment for Respondent No. 1 (OPP);
What was the age and wages of deceased at the time of accident (OPP);
Whether the vehicle in question was driven in violation of terms and conditions of the Insurance Policy (OPR-2)
The respondent No. 1 crossed the witness box to prove her claim and also examined one Joginder Kumar, who claimed to have been traveling
in the offending vehicle at the time accident. Shri Joginder Kumar, deposed that Shri Tarsem Kumar, was driving the offending vehicle at the time
of accident. The present appellant did not produce any evidence to discharge the burden of proving issues, onus whereof was put on the
respondent No. 2 or to rebut the evidence adduced by the respondent No. 1.
The Commissioner on going through the evidence brought on the file, including certified copies of Award in Claim Petition No. 244/Claims titled
Samitri Devi and ors. v. Smt Kamla Devi and anr."" arising out of the same accident as also the judgment dated 5.8.2005 in CIMA 54/2002 titled
United India Insurance Company Ltd. v. Kamla Devi and ors."" whereby the appeal against the award was dismissed, held Shri Tarsem Kumar to
have been driving the offending vehicle at the time of accident claiming his life and that of two passengers traveling in the vehicle. The
Commissioner held the death to have occurred during the course of employment of deceased - Tarsem Kumar and the respondent No. 2 under an
obligation to indemnify the respondent No. 1 in the claim petition, and to be liable to pay an amount of Rs. 3,11,970/- to the respondent No. 1
with simple interest @ 12% per annum from 16.04.2010, till the amount of compensation was paid in terms of Sub section 3 (a) of Section 4-A of
the Workmen's Compensation Act, 1923.
The appellant -- Insurance Company questions the Award passed by the Commissioner on 15th March, 2010, on the grounds that the
Commissioner was not competent to entertain and decide the claim petition without deciding the question of limitation raised by the appellant in its
objections to the claim petition. It is further pleaded that the Commissioner also failed to appreciate that the respondent No. 1 having exercised her
option u/s 167, Motor Vehicles Act, 1988, was not competent to fall back upon Workmen's Compensation Act, 1923, and seek compensation
under the Act. It is further pleaded that the Award dated 15.3.2010, has been made unmindful of the contradictory stand taken by the respondent
No. 1 before Motor Accident Claims Tribunal, Jammu, and before the Commissioner. The appellant also questions quantum of compensation
awarded by the Tribunal and the interest awarded thereon, on the grounds that the Commissioner could not assume the wages of Rs. 3,000/- per
month when in terms of the Act only an amount of Rs. 2,000/- per month was to be taken as monthly income of the deceased workman to
calculate the compensation. It is further pleaded that the rate of interest awarded by the Commissioner could not have been awarded inasmuch as
the accident had admittedly taken place before Workmen's Compensation Act, 1923, was amended by the Act No. 46 of 2000 applicable with
effect from 8.12.2000. The appellant is also aggrieved that the amount of Rs. 66,065/- paid by the appellant to respondent No. 1 on account of
no fault liability"" before Motor Accident Claims Tribunal, Jammu, was not taken into account by the Commissioner while assessing the
compensation ordered to be paid to the respondent No. 1.
I have gone through the memorandum of appeal as well as the record received from the Commissioner. I have heard learned counsel for the
parties.
It needs to be pointed out at the outset that the appellant admittedly did not question order dated 27th March, 2006 of Motor Accident Claims
Tribunal, Jammu, whereby the respondent No. 1 was permitted to withdraw the claim petition No. 544/1999 and given liberty to file a fresh
petition before the Competent Forum -- Commissioner Workmen's Compensation Act, 1923, in the present case, if so advised. Once, objection
to grant of leave was not sustained by the Motor Accident Claims Tribunal, Jammu, and notwithstanding such objection, Motor Accident Claims
Tribunal, Jammu, allowed the application paving wave for filling a fresh claim petition under Workmen's Compensation Act, 1923, the right course
for the appellant Insurance Company was to assail the order date 27th March, 2006, through appropriate proceedings before the Competent
Forum. The appellant having opted not to follow such a course and questions Motor Accident Claims Tribunal's order cannot rake up the issue
once again to assail the award passed by the Commissioner. Whether Motor Accident Claims Tribunal, Jammu, was right in allowing the
respondent No. 1 to withdraw the claim petition and in giving liberty to the respondent No. 1 to approach the Commissioner with a fresh claim
petition, is a question settled for all times to come in view of the appellant having reconciled and decided not to throw challenge to the order dated
27th March, 2006. This apart, let us give a closer look to the facts of the case to find out whether grant of leave to withdraw and file a fresh claim
petition was justified in the facts and circumstances of the case.
There can be no disagreement with the legal proposition that u/s 167, Motors Vehicles Act, 1988, where the death of or bodily injury to any
person gives rise to a claim for compensation under the Motor Vehicles Act, 1988, as also under the Workmen's Compensation Act, 1923, the
person entitled to the compensation has to exercise an option to claim compensation under either of the Acts, and that such person cannot claim
compensation under both the Acts. Though Section 167, Motor Vehicles Act, 1988, does not lay down a time frame within which such option is
to be exercised, still a person entitled to compensation by approaching either of the Forums available under the Acts is to be presumed to have
exercised such option. There is also no scope for any disagreement with the appellant that once the option is exercised by the person entitled to
compensation, he cannot jump horses' midway and shift to other remedy. Reliance placed on ""Gottumukkala Appala Narasimha Raju & Ors. v.
National Insurance Company Ltd."" 2007 (3) Supreme 260 in this regard by the appellant is well placed.
However, the bottom-line in a case of exercise of option u/s 167 of Motor Vehicles Act, 1988, is that the decision must be an informed
decision. It is only after the person entitled to compensation taken an ""informed"" decision meaning thereby that he is aware of all the options
available and after fully understanding the details of such options, takes the decision, he can be said to have exercised his option. In other words, it
is well considered and well thought decision on part of a person entitled to compensation under Motor Vehicles Act, 1988, as well as Workmen's
Compensation Act, 1923, that stands in his way to change boats in midstream.
It is to be realized that a major part of a population is illiterate, disempowered, unattended, marginalized and downtrodden. Would it be proper
to assume that an old, illiterate and disempowered lady, tormented by sudden and untimely death of her son was aware of the options available to
her as regards her right to claim compensation, when she was not accompanying her son at the time of the fatal accident and was not an eye
witness to such accident. The answer is an emphatic ""No"". We have to adopt justice oriented approach while dealing with the matter like one in
hand, and be aware of the realities on the ground. In the present case, everyone including the respondent No. 1 was left guessing as to who was
the driver of the offending vehicle - Shri Rajeshwar Singh alias Raju or Shri Tarsem Kumar, son of respondent No. 1. In claim petitions, other than
the claim petitions filed by respondents No. 1 before Motor Accident Claims Tribunal, Jammu, it was emphatically pleaded that Shri Tarsem
Kumar - son of respondent No. 1, was driving the offending vehicle at the time of fatal accident. However, the Investigating Officer of the Case
FIR No. 115/98 u/s 279/337 RPC Police Station, Vijaypur, had a different story to tell. The Investigating Officer insisted that Shri Rajeshwar
Singh alias Raju and not Tarsem Kumar, was driving the offending vehicle rashly and negligibly at the time of accident in question. Can in the said
background, respondent No. 1 be blamed and penalized for having in her claim petition before Motor Accident Claims Tribunal, Jammu pleaded
that her son - Tarsem Kumar was the passenger in the offending vehicle at the time of unfortunate accident and that the vehicle was being driven by
Shri Rajeshwar Singh. It was only after the High Court while deciding CIMA No. 54 of 2002 titled ""United Insurance Co. v. Kamla Devi and
ors."" on 5.8.2005, held that Shri Tarsem Kumar, not Rajeshwar Singh alias Raju was driving the vehicle, that things became less hazy and it
dawned on the respondent No. 1 that her son - Tarsem Kumar was driving the offending vehicle at the time of accident and that right course for
her was to approach the Commissioner under Workmen's Compensation Act, 1923 for award of compensation. The respondent No. 1
immediately, thereafter, approached Motor Accident Claims Tribunal, Jammu with an application for grant of leave to withdraw the claim petition
and filed a fresh claim petition before the Commissioner. When did the respondent No. 1 exercise option in terms of Section 167, Motor Vehicles
Act, 1988. The answer must be when she filed an application before Motor Accident Claims Tribunal, Jammu for withdrawal of the claim petition
and, thereafter, filed the claim petition before Commissioner on 29th April, 2006.
So viewed, the respondent No. 1 was well within her rights to withdraw the claim petition before the Motor Accident Claims Tribunal, Jammu
and approach with the fresh petition before Commissioner under Workmen's Compensation Act, 1923.
The appellant's case that the Commissioner did not at all deal with the objection raised by the appellant as regards ""limitation"" is devoid of any
substance. The Commissioner after discussing the background facts in which the claim petition was withdrawn from Motor Accident Claims
Tribunal, Jammu and, thereafter, filed before the Commissioner observed that ""the claim petition has been filed within time"". The Commissioner
though not saying in too many words, impliedly held that the respondent No. 1 had sufficiently explained the delay in filing the claim petition.
Section 10(1) of Workmen's Compensation Act, 1923 prescribes two years period from the date of death of the workman for filing claim
petition by his dependents under the Act. In terms of proviso to Section 10(1), the Commissioner may entertain and decide any claim to
compensation not preferred in due time as prescribed, if he is satisfied that the failure to prefer the claim was due to sufficient cause. The
expression ""sufficient cause"" having regard to the object of the Act and that the Act is essentially welfare legislation is to receive liberal
construction. A claim petition though filed beyond time prescribed u/s 10(1) of the Act is to be entertained and decided unless the claimant(s) is
(are) found guilty of gross negligence or intentional and deliberate delay in filing the claim petition. In terms of Section 29(2) of the Limitation Act,
Sections 4 to 24 of the Limitation Act, are applicable and can be looked at and pressed into service to see whether the delay was deliberate and
intentional or attributable to the cause spelt out in the afore-stated provisions. In the present case, as already pointed out, the Commissioner
referred in detail to the circumstances in which the respondent No. 1 was made to prosecute a claim petition before the Motor Accident Claims
Tribunal for a pretty long time for the reasons not attributable to her and the circumstances in which she had to turn to Workmen's Compensation
Act for getting her grievance redressed. The Commissioner is, thus, to be held to have found a ""sufficient cause"" for delay in filing the claim petition.
It is pertinent to point out that there is an element of compassion involved in a claim petition filed under the Motor Vehicles Act, 1988 or
Workmen's Compensation Act, 1923. Such petitions are to be dealt with having regard to the underlying object of the Acts. It is for the said
reason that the Rules of pleadings and Rules of evidence are held not applicable in such claims with same rigor as in case of ordinary civil suits. In a
claim under Workmen's Compensation Act, 1923, the claimants are an injured or disabled workman or dependents of deceased workman --
member of labour class that has been at the bottom of the barrel for centuries and though contributing to the wealth of the country and the class
having control over the resources, does not get a fair share of the wealth generated by the class. The Court while dealing with such matters, is to
have a justice oriented as against a pedantic hyper technical approach.
There is, however, substance in the appellant's case that the Commissioner has not adhered to the Rule book while calculating/computing
compensation payable under the Act. The accident that claimed life of Shri Tarsem Kumar admittedly took place on 3rd May, 1998. On the date
of the accident, in terms of Section 4 (1) Explanation II where monthly wages of a workman exceeded Rs. 2,000/- , his monthly wages for the
purpose of calculating the compensation to be paid to the dependents, was deemed to be Rs. 2000/- only. Section 4 (1) Explanation II was
amended by the Act 40 of 2000 and words and expressions ""2000 rupees"" w.e.f. 8.12.2000, were substituted by expressions ""4,000/- rupees"". It
follows that, even if, the Commissioner on perusal of the evidence concluded that Shri Tarsem Kumar was getting Rs. 3,000/- as wages from his
employer - respondent No. 1, in the claim petition, the Commissioner had to take the wages as Rs. 2000/- per month and, thereafter, multiply
50% of the wages i.e. Rs. 1000/- by the relevant factor given in Schedule 1 (b) of the Act. The amount payable to the respondent No. 1, in the
circumstances, would work out to be 1000 x 207.98 = Rs. 2,07,980/- taking the age of the deceased, as held by the Tribunal 30 years at the time
of the accident.
However, there is no substance in the argument that the Commissioner was not competent to award interest as the provision regarding award
of interest was introduced by amendment to the Act after the accident in question took place. Section 4 (a) Sub section 3 was amended by the Act
30 of 1995, with effect from 15.9.1995, and the Commissioner empowered to direct the employer to pay simple interest @ 12% per annum or at
higher rate not exceeding the maximum lending rates of any scheduled bank. In the circumstances, the Commissioner in the present case did not
over step jurisdiction while awarding simple interest @ 12% from 16th April, 2010 i.e. the month after the award was made till the amount of
compensation was paid.
For the reasons discussed above, the award is modified as under:-
The respondent No. 2 under an obligation to indemnify respondent No. 1, and pay compensation, if any, respondent No. 1 is to pay to his
employee/workman under the Insurance contract, shall pay an amount of Rs. 2,07,980/- with the simple interest @ 12% from 16th April, 2010, till
that payment of the amount. The Registry shall workout the amount payable under the modified award to the respondent No. 1 and release the
amount, if any, unpaid in accordance with rules less by the amount, if any, paid by the appellant in claim petition 544/1999 before Motor Accident
Claims Tribunal, Jammu. In the event, the amount due under the award together with interest has been already paid to respondent No. 1, the
excess amount, if any, be returned to the appellant through payees account cheque.
The appeal is, accordingly, disposed of.