K. Bhakthavatsala, J.@mdashThe Appellant-Insurance company is before this Court praying to set aside the judgment and award dated 10.02.2004 passed in M.V.C. No. 509/1999 on the file of Principal District Judge/MACT, Uttara Kannada at Karwar.
2. For the purpose of convenience and better understanding the Respondent Nos. 1 to 5 herein are referred to as ''claimants'' as arrayed in the claim petition.
3. The brief facts of the case leading to filing of the appeal may be stated as under:
Respondent Nos. 1 to 5-claimants filed a claim petition u/s 166 of M.V. Act against the owner and insurance company of the lorry bearing No. AP-13/T-5885 praying compensation of Rs. 10,00,000/-towards death of Narayan Sidde Gowda, namely, the husband of claimant No. 1, father of claimants 2 to 4 and son of claimant No. 5. They pleaded that the deceased Narayan Sidde Gowda was 30 years old, working as a driver for K.S.R.T.C. and on 14.08.1998 when the deceased was driving the bus bearing No. KA-31/F-326 and when he was at Siruguppi village on Hubli-Gadag road at about 03.30 p.m. due to rash and negligent driving of the lorry by its driver, which came from the opposite direction there was a head on collision, as a result of which both the driver of the lorry and driver of K.S.R.T.C. bus died. Since it is a case of the claimants that the accident occurred solely due to rash and negligent driving of the lorry by its driver, they filed a claim petition only against the owner and insurance company. The insurance company of the lorry entered appearance and filed objections denying the averments of the claim petition and sought dismissal of the same. On 24.03.2003 the Tribunal framed as many as four issues. Subsequently the claimants impleaded the Managing Director of the K.S.R.T.C. as Respondent No. 3 and also filed an application seeking permission to amend the claim petition as the one u/s 163-A of M.V. Act instead of u/s 166 of M.V. Act, 1988. The K.S.R.T.C. filed objections stating that the accident occurred solely due to rash and negligent driving of the lorry by its driver and the K.S.R.T.C. was not a proper and necessary party and on account of misjoinder of parties the claim petition is liable to be dismissed. Without prejudice to the above contention the K.S.R.T.C. has contended that if the driver of the bus was also responsible for the accident, the claim petition u/s 163-A of M.V. Act against the K.S.R.T.C. is not maintainable and therefore prayed for dismissal of the claim petition. After the K.S.R.T.C. came on record the Tribunal framed two more issues on 06.06.2003, namely, on the point whether the accident occurred due to rash and negligent driving of the K.S.R.T.C. Bus by its driver himself and whether the compensation to be paid to the Petitioners should be contributed by the K.S.R.T.C. and the Insurance Company of the lorry. Again on 04.07.2003 an additional issue was framed on the point whether the liability of the Petitioners should also be shared by K.S.R.T.C. In support of the case of the claimants, wife of the deceased got herself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.6. In rebuttal, the Conductor of the K.S.R.T.C. bus was examined as R.W.1 and got marked documents as per Ex.R.1 to Ex.R.4.
4. The Tribunal after hearing the arguments and perusing the evidence and material on record answered issues holding that the driver of the K.S.R.T.C. bus died due to rash and negligent driving of the lorry by its driver. Therefore it answered issue No. 2 (framed on 24.03.2003) in the negative, in favour of the K.S.R.T.C. The additional issue framed on 04.07.2003 was also answered in the negative in favour of the K.S.R.T.C. The Tribunal allowed the claim petition filed u/s 163-A of M.V. Act, holding that the claimants are entitled for compensation of Rs. 4,20,000/- with costs and interest at the rate of 6% p.a. from the date of petition till the date of realisation. It further held that the owner and insurer of the lorry are jointly and severally liable to pay compensation. The claim petition was dismissed as against the K.S.R.T.C. This is impugned in this appeal.
5. Learned Counsel for the Appellant-Insurance Company submits that since there was a head on collusion between the K.S.R.T.C. bus and the lorry, a criminal case was booked against both the drivers. But the Tribunal erred in holding that the accident occurred solely due to rash and negligent driving of the lorry by its driver. Therefore he submits that that contributory negligence may be fixed at the rate of 50:50 on the driver of the lorry and K.S.R.T.C. Bus.
6. Learned Counsel appearing for the claimants submits that there is No. illegality or infirmity in the impugned judgment.
7. Learned Counsel for the K.S.R.T.C. Bus submits that the Tribunal has rightly held that the accident occurred solely due to rash and negligent driving of the lorry by its driver and the claim petition was dismissed against the K.S.R.T.C. Therefore No. appeal was filed against the impugned judgment and award. He further submits that the quantum of compensation is not determined in accordance with 2nd Schedule to Section 163-A of M.V. Act and in the event of holding that the accident occurred due to rash and negligent driving of the bus by the driver viz., the deceased himself and he being a tort-feasor, the claim petition u/s 163-A of M.V. Act against the K.S.R.T.C. is not maintainable. In the light of the arguments addressed by the learned Counsel for the parties, we formulate the following points for our consideration.
1. Whether the Tribunal was justified in holding that the accident occurred solely due to rash and negligent driving of the lorry by its driver?
2. Whether the compensation determined by the Tribunal is in accordance with the Schedule-II appended to Section 163-A of M.V. Act, 1988?
3. In the event of answering point No. 1 partly in favour of the Appellant-Insurance company and fixing contributory negligence on the part of the deceased driver of the K.S.R.T.C. bus, whether the Claim Petition u/s 163-A is maintainable as against K.S.R.T.C?
8. Point No. 1: No. doubt the conductor of the K.S.R.T.C. bus has been examined to establish that the accident occurred due to rash and negligent driving of the lorry by its driver. But evidence of R.W.1 is self-serving. In the absence of corroboration of evidence of R.W.1 it is not safe to accept the same. Having regard to the fact that there was a head-on collision between the two heavy vehicles and the drivers of both the vehicles were charge sheeted, but the proceedings stood abated on account of their death in the accident and the fact that the accident occurred at about 3.30 p.m. i.e., in the day time, both drivers, in our view, ought to have taken more care and caution while driving the vehicle, since, the accident occurred on Hubli-Gadag road, which is a part of a Highway. The fact that the spot panchanama states that the bus had mounted on the lorry would not in any way absolve the driver of the bus from causing the accident. Had either of the two drivers not come in the way of the other vehicle, which was coming in the opposite direction, there would not have been any accident at all. The fact that the two vehicles were proceeding in the opposite direction and there has been a head on collision in the middle of the day clearly brings into play the principle of res ipsa loquitor, i.e., the fact speaks for themselves and under such circumstances, the Tribunal was not right in fastening the entire negligence on the driver of the lorry. It is significant to note that the charge sheet was filed against both the drivers and that both the drivers succumbed to serious injuries sustained in the accident. Therefore, the findings of the Tribunal on the point of negligence has to be modified and in the absence of there being any categorical evidence with regard to the exact percentage of negligence on the part of each of the drivers, it would be just and proper to apportion negligence on the part of the deceased drivers of the KSRTC as well as the lorry to an extent of 50% each, considering the fact that the accident occurred due to a head-on collision in the middle of the road. Thus we answer this point holding that the accident occurred due to rash and negligent driving of the lorry and K.S.R.T.C. bus by its drivers and they are equally responsible. Hence the contributory negligence shall be fixed at the rate of 50:50. Therefore we answer point No. 1 partly in favour of the Appellant-insurance company.
9. Point No. 2: The claimants have produced the salary certificate of the deceased driver of K.S.R.T.C. Bus and the same has been marked as Ex.P.4. According to Ex.P.4, salary of the deceased was Rs. 2,500/- per month. He was a trainee. The tribunal has taken the age of the deceased as 34 years, applied multiplier 17 and after deducting 1/3 of the salary awarded a sum of Rs. 3,40,000/- towards loss of dependency. In addition to that, the Tribunal has awarded a sum of Rs. 80,000/- towards loss of consortium, conveyance, etc. Thus the Tribunal has awarded compensation of Rs. 4,20,000/-.
10. Since the claim petition was filed u/s 163-A of M.V. Act the Tribunal should have determined the compensation as per second schedule to Section 163-A the Tribunal has fixed age of the deceased at 34. According to the said schedule for above 30 years but not exceeding 35 years, the multiplier is 17. The Tribunal has applied the multiplier 17. Compensation of Rs. 3,40,000/- awarded towards loss of dependency is correct. In addition to that, the claimants are entitled for compensation towards conventional heads, namely, Rs. 2,000/-towards funeral expenses, Rs. 5,000/- towards loss of consortium and Rs. 2,500/- towards loss of estate, i.e., in all amounting to Rs. 9,500/-. Thus according to Section 163-A of M.V. Act the claimants are entitled for compensation of Rs. 3,40,000/- towards loss of dependency and Rs. 9,500/- towards conventional heads and thus in all, entitled to Rs. 3,49,500/- whereas the Tribunal has awarded compensation of Rs. 4,20,000/-. Thus the tribunal has awarded excess compensation of Rs. 70,500/- and the same has to be reduced. Since the contributory negligence is fixed only to the extent of 50% on the lorry driver, the insurer of the lorry is liable to pay only 50% of the compensation amount, i.e., Rs. 1,74,750/-. Accordingly point No. 2 is answered in favour of the Appellant.
11. Point No. 3: Since the finding on point No. 1 is that there was a contributory negligence on the part of the driver of the bus also to an extent of 50%, the question raised by the K.S.R.T.C. as to whether the claimants are entitled to claim remaining 50% of the compensation from the owner of the K.S.R.T.C. bus in question on the ground that the deceased himself was responsible, does not arise. Since, the deceased was the driver of the KSRTC Bus, who succumbed to the injuries in the accident, his legal representatives could have maintained the claim petition under the WC Act. However, the claimants opted to file claim petition initially u/s 166 and or u/s 163A of the Act and subsequently, by an amendment, restricted the claim as one u/s 163A of the Act.
12. Section 167 of the Act deals with option regarding claims of compensation in certain cases. The said section begins with a non obstante clause and states that if, in respect of the death of, or bodily injury to any person gives rise to a claim for compensation under the M.V. Act and also under the W.C. Act, then irrespective of what is contained in the W.C. Act the person is entitled to claim compensation under either of the Acts but not under both. Therefore there is an option given to the claimants to seek remedies under either of the Acts and when once such option is exercised or the claimants elect one of the remedies, then they are estopped from seeking a remedy under the other Act. Therefore, if the claimants seek one of the remedies under a particular Act, they are estopped from seeking another remedy under the other Act, with regard to the very same claim which arises in both the W.C. Act as well as the M.V. Act. While Section 166 of the M.V. Act is in Chapter-XII, Section 163A is in Chapter-XI of the Act which deals with insurance of motor vehicles against third party risks. The said Section also begins with a non obstante clause and has an over riding effect over all other provisions of the M.V. Act and any other law for the time being in force and under the said section the owner or the authorised insurer of the motor vehicle is liable to pay in the case of death or permanent disablement due to an accident arising out of the use of motor vehicle to pay compensation as indicated in Second Schedule to the legal heirs or the victim as the case may be. Permanent disability stated in Section 163A of M.V. Act has the same meaning to an extent as in the W.C. Act. Sub-section (2) of Section 163A states that the claimant is not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owners of the vehicle or vehicles concerned or of any other person. Therefore the claimant can seek compensation when there is death or permanent disablement due to an accident arising out of the use of the motor vehicle and the claimant is not required to prove negligence on the part of the owner of vehicle or owners concerned as per the decision of the Apex Court in the case of Deepal Girishbhai Soni and Ors. v. United India Insurance Company Ltd., (2002 ACJ 1158 (SC). According to the aforesaid decision of the Apex Court claim petition u/s 163A is an alternative to a claim petition u/s 166 of the Act. Therefore, the claimants have to prefer filing of a claim petition either u/s 166 or u/s 163A of the Act but not under both.
13. It is a peculiar situation where the claimants could not have filed claim petition before the Commissioner for Workmen''s Compensation against the employer and also file a claim petition either u/s 166 of M.V. Act or u/s 163-A of M.V. Act against the owner and insurer of the lorry. Under such circumstances the claimants thought it fit to file claim petition u/s 166 of M.V. Act only against the owner of the lorry. On account of the contention taken by the Insurance Company the claimants impleaded the K.S.R.T.C. Under the peculiar circumstances, contention of the K.S.R.T.C. that claim petition u/s 163-A of M.V. Act is not maintainable against K.S.R.T.C. holds No. water, for the simple reason that the claimants have not filed an application seeking compensation before the Commissioner for Workmen''s Compensation. According to the provisions of W.C. Act the employer/K.S.R.T.C. is liable to pay entire compensation. Under such circumstances the claimants cannot be forced to suffer and absolve the employer of the deceased in so far as the remaining compensation amount is concerned. Therefore the K.S.R.T.C. is liable to pay 50% of the compensation determined as above. As the claim petition is filed u/s 163-A of M.V. Act, question of proving negligence does not arise. It will be a case of only apportionment of compensation among the vehicles involved in the accident. Under such circumstances the contention taken by the K.S.R.T.C. that it is not liable to pay any compensation amount much less 50% of the compensation payable u/s 163-A of M.V. Act holds No. water. Accordingly point No. 3 is answered in favour of the claimants. In the result, we pass the following order.
ORDER
14. The appeal is partly allowed.
15. The claim petition in M.V.C. No. 509/98 on the file of District Judge/M.A.C.T. at Uttara Kannada, Karwar is partly allowed holding that the claimants are entitled for compensation of Rs. 3,49,500/- along with costs and interest at the rate of 6% p.a. from the date of petition till the date of realisation.
16. The owner and insurer of the lorry are jointly and severally liable to pay 50% of the compensation along with proportionate costs and interest. Remaining 50% of the compensation shall be paid by the K.S.R.T.C. along with proportionate costs and interest.
17. The compensation amount is to be apportioned among the claimants in this way in the ratio of 8:3:3:3:3.
18. Minors'' share amount shall be kept in fixed deposit until they attain the age of majority, with liberty to claimant No. 1-mother of the minor to withdraw the periodical interest.
19. Statutory amount in deposit shall be transmitted to the Tribunal for disbursement.
20. The Appellant-Insurance Company and Respondent No. 7/ K.S.R.T.C shall deposit their share amount with the Tribunal within two months time from today.
21. Accordingly the impugned judgment and award are modified.
