- (1.) THIS appeal is at the instance of the claimants and is directed against the award dated 30th August, 1999 passed by the Motor accident CJaims Tribunal by which the Tribunal dismissed the application for compensation under Section 163a of the Motor Vehicles Act on the ground that the driver of the vehicle employed by the owner himself being involved in the accident and the death having been caused on his account, the jurisdiction of Motor Vehicles Tribunal was not attracted and the appropriate remedy of the claimants lay before the Commissioner, Workmen's Compensation Act.
(2.) BEING dissatisfied, the claimants have come up with the present appeal.
(3.) THE facts giving rise to filing of the application under Section 163a of the Act may be summed up thus : (a) The victim, namely, one Kalipada Dolui was the driver of the vehicle being tractor No. WB-33/1200. On December 19, 1996 while the deceased was coming from the brickfield of one Amitava sashmal near western side of the brickfield at P. S. Kotwali, district- Midnapore, the said vehicle slipped out of the track and capsized to the west of the road. The driver died on the spot. The claimants are the legal heirs of the deceased who was the only earning member and used to earn a sum of Rs. 2,200/- a month as salary from the owner and accordingly, the claimants prayed for compensation in terms of Section 163a of the Act amounting to Rs. 3,36,000/ -. In the application, both the owner and the insurance Company were made parties. (b) The owner of the tractor appeared in the case but did not file any written statement opposing the claim of the appellants. (c) The Insurance Company contested the case by filing written statement denying the material allegations made in the claim application. According to the Insurance Company, the application under Section 163a of the Act was not maintainable and the compensation as claimed in the application was excess, arbitrary and baseless. It was further claimed that the deceased himself was guilty or responsible for the accident and as such, the claimants took advantage of the wrong committed by the deceased himself. In the written statement, Insurance Company further stated that the trailer being WB-33/1980, which was attached with the tractor being WB-33/1200 on the date of the accident, was not insured with the Company. (d) The learned Tribunal below, as it appears from the award impugned, by relying upon the decision of the Supreme Court in the case of Minu B. Meheta v. Bal Krishna Ramchandra Nayar reported in 1977 ACJ 118 (SC) as well as in the case of Y. R. Shanbagh v. Mohammad Gouse and Ors. reported in 1991 ACJ 699 came to the conclusion that forum of Motor Vehicles Act was not the appropriate one. The Tribunal, however, on the basis of the materials on record, came to the finding that the vehicle was involved in the accident and that the same was insured with the insurance Company. ;