SADHAN KUMAR GUPTA, J. - (1.) THIS appeal has been preferred against the judgment dated 20.1.2002 passed by the learned M.A.C. Tribunal, 9th Court, Alipur in M.A.C. Case No. 92 of 1998. The fact of the case is that on 11.6.1996 at about 2.30 p.m. near Triveni Sheet Glass Factory, Decherla Village, District West Godabari, Andhra Pradesh, the vehicle bearing No. WMO/5934 which was coming to Calcutta from Hyderabad met with an Accident. Due to the failure of the brake it dashed against a stationary truck and as a result of that the driver lost control and again dashed against a big roadside tree and ultimately the vehicle in question fell down on the drain. As a result of that, the claimant, being the driver of the vehicle, sustained severe injuries on his person and ultimately his leg was amputated making him permanently disabled. The petitioner has filed the present claim application praying for compensation to the extent of Rs. 6,00,000/-. The case was contested by the O.P. New India Assurance Co. The learned Tribunal after perusal of the evidence and other materials on record came to the finding that the claimant was entitled to get Rs. 5,43,000/- from both the O.Ps, Being ggrieved and dissatisfied with the said finding of the learned Tribunal, present appeal has been preferred by the O.P. Insurance Company.
(2.) THE learned Counsel for the appellant Insurance Company mainly argued that as the victim was the driver of the offending vehicle, his case is not covered by the insurance agreement in view of the provisions laid down under Section 147 of the Motor Vehicles Act. Mr. D.K. Das, learned Counsel for the appellant relied on the judgment in the case of United India Insurance Co. Ltd. v. Smt. Draupadi Devi reported in 2001 (1) T.A.C. 467, and New India Assurance Co. Ltd. v. Asha Rani reported in III (2002) A.C.C. 753 (S.C.) : 2003 (2) S.C.C. page 223. Mr. Banik, learned Counsel for the respondent on the other hand relied on the judgment in the case of Ramji Hiralal Porte v. Premabai Pattel, reported in 1998 (2) A.J.R. 492; Oriental Fire and General Insurance Co. Ltd. v. Jashoda Bala Ghanta reported in 1991 A.C.J. 349; Oriental Fire and General Insurance Co. Ltd. v. Dhanno, reported in 1987 A.C.J. 759; New India Assurance Co. Ltd. v. Anokhi Lal reported in II (1992) A.C.C. 68 : 1993 A.C.J. 216; United India Insurance Co. Ltd. v. Angammal ; Kishori v. Gulabkhan reported in 1988 A.C.J. 860, K.K. Rain v. Smt. Masroor Anwar ; National Insurance Co. Ltd. v. Gonti Eliza David, reported in I (1984) A.C.C. 240 : 1984 A.C.J. 8; Oriental Fire and General Insurance Co. Ltd. v. Ram Sundar Dubey reported in 1982 A.C.J. 365; Mandulova Satyanarayan v. Bodiredoy Likeshwari, ; and National Insurance Co. Ltd. v. Smt. Urmila Devi reported in 2003(2) T.A.C. 31. We have considered all those decisions as cited by the learned Advocates for both the sides. Learned Advocate for the O.R Insurance Co. argued that in view of the provisions of Section 147 of the Motor Vehicles Act the insurer is not liable to pay compensation in respect of injury or death of the driver of the offending vehicle. Section 14 of the Motor Vehicles Act provides that a policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of death or bodily injury to any such employee who is engaged in driving the vehicle. But if we look into the provisions of Section 167 of the Motor Vehicles Act then it will appear that it has been clearly stated therein to the effect "Option regarding claims for compensation in certain cases-Notwithstanding anything contained in Workmen's Compensation Act, 1923, where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923 (8 of 1923), 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." This section has allowed the claimant to prefer his claim in either of the two viz., M.A.C.C. Tribunal or the Workmen's Compensation Commissioner, but not in the two at a time. In this case, the claimant has preferred the Motor Accident Claims Tribunal as his forum and, as such, we find that there is nothing wrong in it. Moreover, if we look into the insurance policy then also it will appear that the said policy covered the legal liabilities of the owner to the persons employed in connection with the operation and/or maintaining and/or unloading of motor vehicles and a separate sum as premium was paid for the said purpose. Therefore, on facts it appears that in the present case, the driver, being an employee under the owner for operation of the vehicle, is covered by the Insurance Agreement itself.
(3.) SO far as the present case is concerned, it appears that the claim application was filed before the Tribunal under Section 163A read with Section 166 of the Motor Vehicles Act. In assessing the amount of compensation the Tribunal has applied the Second Schedule of the Act. Clause 5 of the said Second Schedule reads as follows: Disability in non-fatal Accidents- The following compensation shall be payable in case of disability to the victim arising out of non-fatal Accidents: Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. PLUS either of the following- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. Injuries deemed to result in Permanent Total Disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923.;