New India Assurance Co. Ltd., Mehatpur (H.P.) (Insurance Company v. Lachhman Singh & Anr.

Present: Mr. Suman Jain, Advocate for the appellant. Ms. Rakhi Sharma, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes K. KANNAN J.(ORAL) -.-

1. The appeal is by the insurance company challenging the award on the ground that the claimant was found to be the tort feasor himself and he could not have sustained the claim for compensation under Section 166 of the Motor Vehicles Act. It was an admitted case that he sustained injury when he was driving the vehicle and the claim had been made against his owner and the insurer. The choice of forum was clearly wrong and it could not have been possible for the claimant to successfully prosecute a claim under the Motor Vehicles Act even under Section 167 exercising an option to prosecute under the Motor Vehicles Act. This option is possible only in cases where a workman, who had a choice to FAO No.5481 of 2002 -2- approach either before the Workmen's Compensation Act or under the Motor Vehicles Act exercises the option for proceeding under the Motor Vehicles Act. The law of compensation as envisaged under the Motor Vehicles Act is an extension of law of tort after minor dilutions, such as provision for no fault liability under Section 140 and the compensation under the structured formula of strict liability claim under Section 163-A. A successful claimant has still to prove that that he had no part in the negligence. In other words, a tort feasor has no basis for claim under the Motor Vehicles Act under any circumstances. The appropriate remedy would have been only on direction by the Tribunal, while dismissing it, to leave the option to the claimant to approach the Workmen's Compensation Commissioner for appropriate remedy.

2. What could be a fetter for a Tribunal may not still be a cause for throwing out a claim before this Court, for High Court is a Court of appeal both under the Motor Vehicles Act and the Workmen's Compensation Act. Both the Acts are welfare driven legislation and if it is possible for this Court to extend the benefit under the Workmen's Compensation Act, then the Court will invoke the provisions of Workmen's Compensation Act and provide for compensation of what is possible under the Workmen's Compensation Act. What may not be possible for a subordinate court may still be possible for a higher forum as situations arising under the Hindu Marriage Act have shown when the Hon'ble Supreme Court has held in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415 that a ground for divorce, which is not under the Hindu Marriage Act namely of FAO No.5481 of 2002 -3- irretrievable breakdown of marriage would still be a ground which the Hon'ble Supreme Court can exercise and no other Court. It has also held that a period of six month which is a mandatory provision of waiting period before granting a relief under Section 13-B of the Hindu Marriage Act is unexceptional to all Courts but the Supreme Court will not be so fettered by exercise of its jurisdiction under Article 142 of the Constitution.

3. This exposition is brought only to bring home the point that a higher forum may have powers, which are larger than the court of original institution. If an appeal is a continuation of original proceeding, an appeal before the High Court must also be taken as a proceeding which is a continuation of the original proceeding, which could have been possible under the Workmen's Compensation Act. I, therefore, examine this case by applying the yardstick for determining compensation under the Workmen's Compensation Act. It is in evidence that the claimant had a serious injury where there was a moderate limitation of movement of the right shoulder and the knee joint coupled with half an inch shortening of right lower limb with the further loss of retinal detachment of the left eye with complete loss of vision. The disability, which had been assessed at 60% cannot be ignored. If we translate the disability in terms of loss of earning power by a person who was a driver, loss of vision of one eye itself constitutes 30% of loss of earning capacity under the Workmen's Compensation Act. The restriction of range of movements in the shoulder and the knee would also be substantial to prevent him to act as a driver. Taking the income of the claimant as FAO No.5481 of 2002 -4- a driver, it had been assessed at Rs.5,000/-. I find that the amount of compensation of Rs.83,000/- as determined under the Motor Vehicles Act will also be compensation, which would be payable under the Workmen's Compensation Act. The Tribunal has taken note of medical expenses and transport, which are not possible under the Workmen's Compensation Act and an overall assessment would come only with reference to the loss of earning power and the income and an assessment of Rs.83,000/- would satisfy the interest of the claimant and there has been no cross appeal by the workman.

4. I record my appreciation for the assistance of counsel appearing for the petitioner, who addressed the argument with reference to the injuries suffered and how the case could still be dealt with under the Workmen's Compensation Act.

5. The award of the Motor Accident Claims Tribunal is sustained although for different line of reasoning and by application of the provisions of the Workmen's Compensation Act.

6. The appeal is, therefore, dismissed. July 08, 2010 Pankaj* (K. KANNAN) JUDGE