K.A. Abdul Gafoor, J.@mdashWhen a driver attempted to start a vehicle and to proceed, the vehicle got exploded. The driver succumbed to the injuries. A passenger in the vehicle got injured. This gave rise to two claims, one by the dependents of the deceased driver and the other by the injured. The tribunal below found that the driver himself was negligent. Therefore he or his dependents could not have cashed out that negligence to demand compensation. The claim of the dependents of the deceased was dismissed limiting it to the liability in terms of Section 140 of the Motor Vehicles Act, 1988. The claim by the injured was allowed. But the insurance company was absolved as there was violation of the conditions of the policy because the vehicle, though registered as a passenger vehicle, was carrying goods as well. It was in the above circumstances, these appeals have been filed.
2. So far as M.F.A. No. 740/94 is concerned, it is an admitted case that the driver succumbed to the injuries. Necessarily, even going by the Act policy, the insurer is liable to pay the compensation in terms of the Workmen''s Compensation Act as the driver died during the course of employment as a result of the accident. Merely because the claim was u/s 166 of the Motor Vehicles Act, it cannot be taken that the insurer shall be absolved fully in such circumstances. Whatever be the situation, the dependents of the deceased was entitled to be compensated. Even if they had claimed compensation payable under the Workmen''s Compensation Act, the very same insurer is liable to pay the same. Accordingly, we are of the view that the dependents of the driver, namely the Appellants in M.F.A. No. 740/94, are entitled to the amount payable in terms of the Workmen''s Compensation Act.
3. The accident took place on 9th March 1990, before the enforcement of Act 35/95 by which the Workmen''s Compensation Act has been amended enhancing the rate of wages for computation of compensation and the percentage of disability in certain cases. This is a case of death. Necessarily, the wages has to be computed as Rs. 1,000. When compensation is computed in terms of Section 4 as it then stood, the compensation payable will be equal to 40 per cent of the monthly wages of the deceased workman multiplied by 211.79. i.e.
1000 x 40 x 211.79 = Rs. 84,716
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The Appellant in M.F.A. No. 740/94 will be entitled for altogether an amount of Rs. 84,716 with 6 per cent interest from the date of accident. The amount, if any, paid by the insurer towards the interim award shall have to be deducted from the amount so to be paid. M.F.A. No. 700/94 is allowed in part as above: no costs.
4. M.F.A. No. 400/94 is the case of an injured. As already mentioned above, the insurance company has been absolved of the liability, as there was violation of the policy conditions, because the vehicle in question was carrying goods as well. If there was such violation of the policy conditions, the insurer cannot be absolved of the liability. The insurer has to pay the amount quantified by the tribunal to the injured with liberty to recover it from the owner concerned.
5. It is contended by the insured that there was no negligence on the part of the driver. Only if there was negligence, the insurer shall be made liable, even in the case of violation of the policy conditions. We are not impressed with this submission. It was incumbent upon the driver, before taking the vehicle to the road, to see that the vehicle was road worthy. To take a vehicle which is not worthy to the road to carry passengers itself is a negligence on the part of the driver. As mentioned above, this was a case of explosion of the vehicle when the driver attempted to start it, with passenger and goods. Necessarily, this is a case where there was negligence on the part of the driver.
Of course, there was violation of the policy conditions, as proved before the tribunal insofar as the vehicle, registered as a passenger vehicle, was carrying goods as well. Merely because there was such violation, the insurer cannot be absolved of the liability as held in
