- (1.) The appeal is by the representatives of the deceased whose claim petition before the Motor Accident Claims Tribunal was dismissed. The case had been filed on an averment that the deceased was employed as a Cleaner in the insured's vehicle and at a particular place when he alighted the vehicle to take meal at a hotel by crossing the road, he was hit by another vehicle and sustained fatal injuries. The claim was made against the owner and the insurer of the vehicle in which he was said to be travelling. The Court below found that the plea of an employment status was not established.
(2.) In my view, the petition itself was not maintainable. In order to avail for a workman, the remedy under the Motor Vehicles Act in the manner contemplated under Section 167 of the Motor Vehicles Act, it should satisfy the twin test; one he shall be a workman in the vehicle and the accident must have resulted by the use of the motor vehicle. In the same way, the second test would be that such a person, if he was a workman, shall be in a position to maintain an action against an insurer. In this case, even if it were assumed that he was a workman, the death was not on account of the use of the motor vehicle that belonged to the insured. The death was caused by yet another vehicle passing by when the deceased was making an attempt to cross the road. The option provided under Section 167 of the MV Act could have been invoked only in the event of workman who had a cause of action against his employer for the negligent conduct of the driver in his driving of the vehicle. In this case even a petition under Section 163-A of the MV Act could not have been maintained without proving the death as being the result of the use of the insured's vehicle. The proper remedy would be for the workman to only resort to the Commissioner for Workmen's Compensation, if it were contended that the deceased was a workman. The finding rendered by the Tribunal, which was not the Court of competent jurisdiction, shall not be binding or final and it will be open to the respective parties to let in evidence, if they chose to resort to an action for pursuing the claim before the Commissioner for Workmen's Compensation. If there is a delay in filing the petition, the time taken in bona fide prosecution of the case before the Tribunal and this Court could be cited before the Commissioner and the same will be properly considered in accordance with law. Needless to state that the Commissioner will proceed to consider the claim uninfluenced by any observation regarding his employment status made by the Tribunal in the case, which is subject of challenge before this Court in appeal.
(3.) The appeal is disposed of with the above observations.;