9911796707
Advanced Search 
TMI Blog2007 (2) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaru Raju died in that accident while driving the said tractor. How the accident occurred is not known. Claiming a sum of ₹ 3 lakhs by way of compensation, a petition before the Commissioner of Workmen's Compensation in terms of the 1923 Act was filed against Smt. Gottumukkala Venkata Lakshmi, the owner of the tractor, and the insurer herein. According to the claimants, the deceased was earning about ₹ 3,000/- per month towards salary and ₹ 25/- as Bata per day. The owner of the tractor, being wife of the deceased, raised a contention that she and her husband had been living separately prior to the date of accident and the tractor in question being insured with the 1st respondent herein, she was not liable to pay any amount to the claimant by way of compensation. She, however, examined herself as P.W.1. Although, no such case was made out in the objection filed by the owner of the tractor, it was alleged that her brother had engaged the deceased on a monthly salary of ₹ 3,000/- per month and Bata of ₹ 25/- per day. The contention raised by the 1st respondent before the Commissioner under 1923 Act was that as the deceased and the owner of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compulsory insurance of motor vehicles in terms of Section 147 thereof. Compulsory insurance, therefore, is provided under the 1988 Act and not under the 1923 Act. Statutory duty to indemnify the insured by the insurer arises only thereunder. Section 143 of the 1988 Act occurring in Chapter X thereof shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the 1923 Act resulting from an accident of the nature referred to in Sub-Section (1) of Section 140 and for the said purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act. Chapter X deals with certain categories of cases. A claim petition under Section 166 of the 19088 Act, however, comes under Chapter XII thereof. Applicability of the provisions of 1988 Act shall, therefore, be confined to Chapter X thereof for the purpose of a proceeding initiated under the 1923 Act. Section 2(n) of the 1923 Act defines "workman" in the following terms : "2. (1)(n) "workman" means any person who is (i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 1890), not perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1988 Act would be of no significance. The question in regard to the applicability of Section 167 of the 1988 Act fell for consideration in National Insurance Co. Ltd. v. Mastan & Anr. [(2006) 2 SCC 641], wherein it was held : "Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. The "doctrine of election" is a branch of "rule of estoppel", in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants, therefore, in our opinion, was not correct in contending that all the pleas available in a proceeding under the 1988 Act shall proprio vigore be available in a proceeding under the provisions of 1923 Act. In Ved Prakash Garg v. Premi Devi and Others [(1997) 8 SCC 1], Majmudar, J. speaking for a Division Bench opined that the insurer would be liable to indemnify the owner of the vehicle, stating : "19. As a result of the aforesaid discussion it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmens Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4-A sub-section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmens Commissioner under Section 4-A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation Act of 1923, the insurer cannot be made liable to the insured for those amounts." Thus, if the vehicle is covered by an insurance, the insurer may be made a party and it may be liable to indemnify the owner, but the situation in this case is entirely different, as would appear from the discussions made hereinafter. In our considered opinion, it is wholly absurd to suggest that the husband would be a "workman" of his wife in absence of any specific contract. We have no doubt in our mind that for the purpose of proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a "workman" under her appears to be a far-fetched one. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
