KALAWATI v. BALWANT SINGH — 1984 DIGILAW 955 (ALL)

A. BANERJI, J. ( 1 ) AN interesting question of law arises in this F. A. F. O. S. 110-AA of the Motor Vehicles Act, 1939 bars a claimant from claiming compensation both under S. 110-A of the Motor Vehicles Act (hereinafter referred to as the M. V. Act) and under S. 3 (i) of the Workmens Compensation Act, 1923 (hereinafter referred to as the Compensation Act ). The point raised by the learned counsel is that the claimant is under no such bar where the claimant has different causes of action and the claim is made against two different persons under the aforesaid two acts. In other words, the contention is that the claimant is not to be precluded from making an application under S. 110-A of the Motor Vehicles Act where the owner of the vehicle is a person other than the employer of the victim involved in the accident. The argument is that since the compensation was not being claimed against the same person twice, but from two different persons, the bar of S. 110 AA of the M. V. Act will not be attracted. ( 2 ) BEFORE we advert to the question raised it will be proper to refer to the facts material for the disposal of this appeal. ( 3 ) THE deceased Ramphal was involved in an accident; he was a conductor of a Bus No. USD 7880 owned by S. Balwant Singh; while he was supervising the unloading of passengers luggage from the roof, another vehicle, a truck No. PNN 6035, owned by Sardar Singh dashed against the vehicle USD 7880 from the rear as a result of which Ramphal was crushed to death on the spot. The claimant, Smt. Kalawati is the widow of Ramphal deceased. She filed a claim under the Compensation Act. This claim was allowed and she was awarded Rs. 9000/- as compensation by an order D/-20-10-1975 against S. Balwant Singh, his employer. Subsequently Smt. Kalawati made a claim under the M. V. Act for Rs. 50000/- against Respondent No. 1 Sardar Singh, owner of the vehicle PNN 6035 and also against the Insurer, National Insurance Company Limited. This claim was allowed and she was awarded Rs. 9000/- as compensation by an order D/-20-10-1975 against S. Balwant Singh, his employer. Subsequently Smt. Kalawati made a claim under the M. V. Act for Rs. 50000/- against Respondent No. 1 Sardar Singh, owner of the vehicle PNN 6035 and also against the Insurer, National Insurance Company Limited. Both the respondents resisted the claim on a variety of grounds but they pressed the ground that the claim was not maintainable in law as she had received compensation under the Compensation Act and that S. 110-AA of the M. V. Act barred the claim. The Motor Accidents Claims Tribunal framed issue No. 4 on this point and tried the said issue as a preliminary issue. The Tribunal held by its order D/-30-11-1977 that the claim was barred under S. 110-AA of the M. V. Act since she had received compensation under the Compensation Act. The petition was consequently dismissed with costs. It is against the above decision that the present appeal has been filed under S. 110-D of the M. V. Act. ( 4 ) TO reiterate the question is, whether the award of an amount as compensation by the Authority under the Compensation Act is a bar to the entertainment of an application for compensation under S. 110-A of the Act. A plain reading of S. 110-AA of the M. V. Act bars claiming of compensation under both the Acts. A new dimension has been added to the question by raising the plea that in any event since compensation was not being asked for from the same person twice, there was no bar for entertaining the application and granting relief as prayed for. This question involves the interpretation of S. 110-AA of the Act. S. 110 AA will now be examined by us. It reads as follows. "110-AA. Option regarding claims for compensation in certain cases. Notwithstanding anything contained under the Workmens Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury of, any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923 the person entitled to compensation may claim such compensation under either of this Act but not under both. ( 5 ) THE section commences with non obstante clause Notwithstanding anything contained under the W. C. Act, 1923. ( 5 ) THE section commences with non obstante clause Notwithstanding anything contained under the W. C. Act, 1923. This means that the provisions that follow are to be effective notwithstanding anything contained under the provisions of the Compensation Act. What follows next is simply this; if the claimant is entitled to make a claim under the Act and also under the Compensation Act for the death or bodily injury of any person, he is precluded from making claims before the two forums - one under the Act and the other under the Compensation Act. The statute is clear, he cannot claim compensation from both the forums, for the same injury arising out of the same accident. ( 6 ) LEARNED counsel for the appellant argued that there is an ambiguity in S. 110-AA of the M. V. Act. His contention was that the non obstante clause creates ambiguity. According to him the non obstante did not bar the Court from awarding compensation under the M. V. Act as well. We are unable to accept the contention. The phrase "notwithstanding anything contained in the W. C. Act, 1923" makes it clear that the contents of the said Act would not prevail over the provisions of S. 110-AA of the M. V. Act. If the non obstante clause was not there, an anomaly would have arisen. In our opinion, the non obstante clause makes the position clear and was necessary. S. 3 (i) of the Compensation Act made it obligatory for the owner to pay compensation for bodily injury or death of a person where such injury or death arose out of and in the course of the employment. But for S. 110-AA, compensation has to be paid under both Acts. The intention of the legislature in enacting S. 110-AA appears to us to give effect to the principle embodied in S. 3 (5) of the Compensation Act. The principle was that there should be no duplication of payment of compensation for the same accident. In our opinion, there is no ambiguity. ( 7 ) LEARNED counsel then argued that where the interpretation of the Statute leads to an absurdity a construction to avoid absurdity is permissible. He referred to Maxwell on the Interpretation of Statutes, twelfth edition on page 210-212. In our opinion, the question of absurdity does not arise. In our opinion, there is no ambiguity. ( 7 ) LEARNED counsel then argued that where the interpretation of the Statute leads to an absurdity a construction to avoid absurdity is permissible. He referred to Maxwell on the Interpretation of Statutes, twelfth edition on page 210-212. In our opinion, the question of absurdity does not arise. The rule is that when a statute is susceptible of two interpretations one of which is reasonable and the other unreasonable, the Court should hold that the former must prevail. We are of the view that this argument of the learned counsel is of no assistance to him for we are unable to hold that S. 110-AA is susceptible of two interpretations. ( 8 ) IT is obvious that certain accidents may give rise to the workman or his dependant to make claim both under the Compensation Act and the M V. Act. The law only says that in such an event the claimant will not be entitled to claim compensation under both the Acts. He has to choose one of them. This is in keeping with the principles laid down in S. 3 (5) of the Compensation Act. It seems that the legislature has only reiterated the principle in S. 110-AA of the M. V. Act. ( 9 ) SECTION 3 (5) of the Compensation Act puts a bar in making two separate claims one before the Commissioner under the Compensation Act and another in the civil court. This provision did not provide for a situation when claim for compensation under the MV Act was introduced in Chap. VII of the latter Act. Consequently, a claim for compensation arising out of an accident with a motor vehicle could be made as also a claim under the Compensation Act. This was the position until S. 110-AA was brought on the statute book. This Section was added to the M. V. Act by S. 58 of the M. V. (Amendment) Act, 1969 and became effective from 29th Dec, 1969. Prior to the above date, there was no bar to the making of two separate claims, except what was barred under S. 3 (5) of the Compensation Act. This Section was added to the M. V. Act by S. 58 of the M. V. (Amendment) Act, 1969 and became effective from 29th Dec, 1969. Prior to the above date, there was no bar to the making of two separate claims, except what was barred under S. 3 (5) of the Compensation Act. Further a claim under S. 110-A of the M. V. Act in respect of an accident prior to coming into effect of the Central Act 58 of 1969 was not affected, as the provisions of S. 110-AA were prospective and not retrospective. ( 10 ) WE find similar embargo in the Employees State Insurance Act, 1948 and in the Railways Act, S. 53 of the former Act provides a bar against receiving or recovery of compensation or damages under any other law. This Section reads as follows. "s. 53. Bar against receiving or recovery of compensation or damages under any other law. An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmens Compensation Act 1923 (8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act. ( 11 ) CHAPTER V of the above Act pertains to benefits for all employees. Apart from sickness benefit, maternity benefit, disablement benefit and also in respect of accidents happening while acting in breach of regulations or travelling in employers transport or while meeting emergency and also because of occupational disease. If a person dies as a result of an employment injury, sustained as an employee under this Act his dependants would be entitled to the benefit payable in accordance with the provisions of the above Act. S. 53 bars the claimant from receiving or recovering compensation or damages under any other law if he can claim the same under this Act. In other words, if a claim can be made under the provisions of the Employees State Insurance Act, 1948 the claimant will not be entitled to make any application whatsoever for compensation or damages under the Compensation Act or under any other similar enactment. In other words, if a claim can be made under the provisions of the Employees State Insurance Act, 1948 the claimant will not be entitled to make any application whatsoever for compensation or damages under the Compensation Act or under any other similar enactment. ( 12 ) SECTION 61 of this Act bars receiving benefits under other enactments when he is entitled to any of the benefits provided under the Employees State Insurance Act. It will be noticed that S. 53 of the Act does not give an option to make a claim under any other Act. ( 13 ) REFERENCE may now be made to the provisions of S. 82 (h) (1) of the Railways Act which also provides a bar to making a claim twice for the same accident. The provisions read as follows :-"s. 82-H. Saving as to certain right- (1) The right of any person to claim compensation under S. 82-A shall not affect the right of any such person to recover compensation payable under the Workmens Compensation Act, 1923 or any other law for the time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident" ( 14 ) COMPENSATION for injury or loss of life may be claimed under S. 82-A of the Railways Act. S. 82-H however makes it clear that compensation may be claimed either under the Railways Act, or the Workmens Compensation Act or any other such law for the time being in force but then no person shall be entitled to claim compensation more than once in respect of the same accident. In other words, compensation may be claimed only once in respect of the same accident, even though it may be prayed for before several forums. This obviously means that there is a choice of the forum to the claimant. ( 15 ) THE provisions of S. 110-AA of the M. V. Act are similar in purport. S. 110-AA bars more than one claim but leaves the claimant to choose the forum. Whether he files the claim before the Accidents Claims Tribunal or before the Commissioner under the Compensation Act, will depend on his volition. But the law is clear that he cannot claim compensation for loss or injury arising out of the same accident more than once. Whether he files the claim before the Accidents Claims Tribunal or before the Commissioner under the Compensation Act, will depend on his volition. But the law is clear that he cannot claim compensation for loss or injury arising out of the same accident more than once. This conclusion would conclude the appeal but we would examine a fews cases and also examine the contention canvassed in this appeal. ( 16 ) IN the case of Oriental Fire and General Insurance Co. v. Ram Sundar Dubey AIR 1982 All-98 a Division Bench of this Court interpreting S. 110-AA of the M. V. Act observed that the said provision gives an option to the claimant either to seek compensation under the M. V. Act or under the Compensation Act and there is a prohibition to seek compensation from both. ( 17 ) IN the case of Trading Engineering Co. v. Nirmala Devi, 1980 Acc CJ 230, a learned single judge held that from the language of this S. 110-AA it is quite clear that a person entitled to compensation under both the Acts, i. e. M. V. Act and the Compensation Act may claim compensation under either of those Acts but not under both. The learned single Judge relied on a decision of a Division Bench of the Himachal Pradesh. ( 18 ) IN the case of Gayatri Devi v. Tani Ram, AIR 1976 Him Pra 75 Pathak CJ, speaking for the Court held that the provisions of S. 110-AA was prospective and not retrospective. It was further held that a compensation application filed under S. 110aa of the M. V. Act prior to the introduction of S. 110-AA was not liable to be dismissed merely because the claimant had applied for compensation under the Compensation Act. One Daya Ram, who was employed as a truck driver by the respondent Tani Ram, died as a result of a motor accident. His widow, daughter and son claimed compensation under S. 110a of the Act. The claim as resisted on the ground that it did not disclose any cause of action against them inasmuch as no plea of negligence was taken therein. This was upheld by the Claims Tribunal, and it further held that the claim lay before the Commissioner under the Compensation Act and not under the M. V. Act. The appeal against the above decision came up before the Division Bench. This was upheld by the Claims Tribunal, and it further held that the claim lay before the Commissioner under the Compensation Act and not under the M. V. Act. The appeal against the above decision came up before the Division Bench. Meanwhile the claimants had also applied for compensation under the Compensation Act and it was pending. An argument was raised that in view of the provisions of S. 110-AA of the Act the claim under S. 110-A could not be entertained, as claim under the (Compensation) Act had been filed and was pending. Negativing the plea the Court held that the claim under S. 110-A had been filed on May 3,1968 which was prior to the coming in force of S. 110-AA of the Act and as such both the claims were maintainable. The appellants were not put to any choice as the provisions of S. 110-AA were not attracted. The claimant were entitled to pursue both the remedies, as of right- one purely statutory and the other arising out of tort, and they were entitled to compensation separately. The court further held that the right to claim compensation accrued on the date of death and the same had not been taken away by the provisions of S. 110-AA. ( 19 ) A large number of cases have been referred to in the above decision. One such case is Radhabai Bhikaji v. Baluram Daluram, 1970 Acc CJ 403 (M. P. ). The Court held in this case that duplication of proceedings occasioned by a claim filed under the M. V. Act and a claim under the Compensation Act was intended to be avoided and, therefore, S. 3 (5) of the Compensation Act was enacted. Pathak, C. J. ; in the decision in Gayatri Devis Case (AIR 1976 Him Pra 75) (supra) disagreed above view. It was observed that when S. 3 (5) was enacted, the Legislature could not have had in mind the M. V. Act, enacted in 1939. There was no other statute then to provide for any other Tribunal for entertaining claims in respect of such injury/loss of life. The Legislature it appears, had in mind the ordinary courts only as an alternative forum for entertaining claim for damages. The Division Bench further observed that a proceeding for compensation made under the Compensation Act or under the M. V. Act could not be confused with suit. The Legislature it appears, had in mind the ordinary courts only as an alternative forum for entertaining claim for damages. The Division Bench further observed that a proceeding for compensation made under the Compensation Act or under the M. V. Act could not be confused with suit. A passage from the judgment of the Division Bench in Gayatri Devis case will be relevant. moreover, when the Madhya Pradesh High Court in Radhabai Bhikaji (supra) spoke of a duplication of proceedings it was apparently not pointed out to the learned Judges that there is no duplication in the true sense, and the claim under the Workmens Compensation Act is based on statutory liability while that under the M. V. Act rests on liability in Tort. ( 20 ) THE Division Bench observed that the exclusion of the Civil Court does not make a Claims Tribunal a Court of law, notwithstanding that the Tribunal exercises some of the powers of the Civil Court under the C. P. C. ( 21 ) THE Division Bench in Gayatri Devis case was examining whether there was a bar in claiming compensation under both the Acts on the day the driver met with the accident and died, viz. Feb 18, 1968. Since S. 110-AA was held to be prospective and not attracted by the facts of the case the Court held that both the claims were entertainable. In coming to this conclusion the Court pointed out an essential distinction, viz. , that the two claims were based on different causes of action. One was for a statutory relief under the Compensation Act and the other claim was based on law of torts. ( 22 ) WE may now examine the case of Orissa High Court reported in National Insurance v. Hare Krushna Sahu 1977 Acc CJ 512. A single Judge held that S. 110-AA prohibits the making of duplicate claim by a person entitled under law to make claim both under the Compensation Act and the M. V. Act. One Bhagaban died as a result of motor accident. The deceased was an employee of the State Electricity Board. The parents of the deceased claimed compensation under the Compensation Act and received Rs. 2,000/- as compensation. They filed a claim petition under the M. V. Act and were awarded Rs. 6000/- but the Court deducted Rs. 2000/- awarded under the Compensation Act. The deceased was an employee of the State Electricity Board. The parents of the deceased claimed compensation under the Compensation Act and received Rs. 2,000/- as compensation. They filed a claim petition under the M. V. Act and were awarded Rs. 6000/- but the Court deducted Rs. 2000/- awarded under the Compensation Act. The insurer raised a plea in appeal before the High Court that no amount could be awarded, under the M. V. Act in view of the provisions of S. 110aa. Before the learned single Judge it was argued that the deceased being an employee of the State Electricity Board and he having met with death in the course of his employment under the Board was entitled to compensation from the Board. The owner of the vehicle was another person and there was a different cause of action as against him. It was argued that S. 110-AA did not come into play to prevent the claimants from making their claims under both the Acts. The learned single Judge held that the above meaning could not be given to S. 110-AA for it amounts to stretching the language of the section and it would amount to ignore a very sound principle of law as embodied in S. 3 (5) of the Compensation Act. ( 23 ) IT is apparent that the contention that the claim was being made in respect of two different causes of action and from two different employers of the deceased was raised before the Orissa High Court, but was repelled. Learned counsel for the appellant urged that the view taken by the Orissa High Court does not lay down the correct law. Where relief is asked against two different persons under two distinct and separate causes of action, it would amount to two separate claims. One was statutory in which rash and negligent act had not to be proved whereas in the other it is a sine qua non to prove rash and negligent act. He further urged that the claim which was made before the Commissioner under the Compensation Act could not be made before the M. V. Act and vice versa. ( 24 ) WE have considered these submissions and in our opinion these arguments cannot be accepted for the reason that the language of S. 110-AA does not permit such interpretation. He further urged that the claim which was made before the Commissioner under the Compensation Act could not be made before the M. V. Act and vice versa. ( 24 ) WE have considered these submissions and in our opinion these arguments cannot be accepted for the reason that the language of S. 110-AA does not permit such interpretation. To hold that where the claim is made against two different persons one an employer and the other the owner of the vehicle, the bar of S. 110-AA would not arise to stretch the language of the section. The Legislature has enacted S. 110-AA to bar two claims being made by the claimant for the same accident. S. 110-AA gives a choice to the claimant to make a claim before one of the two forums but not before both. It is not possible nor permissible in accordance with the canons of interpretation to stretch the language of S. 110-AA to hold that where the claim is made against two different persons, may be arising out of the same accident, the bar of S. 110-AA could not operate. We are, therefore, of the view that S. 110-AA bars a claimant to claim compensation both under the Compensation Act and of the M. V. Act under the same accident. ( 25 ) THERE is another aspect of the matter which needs to be mentioned. The claim that is made for compensation under the M. V. Act is based on law of torts and is claimed against a tort-feasor. The tort-feasor is liable to pay compensation as awarded by the Motor Accidents Claims Tribunal on a finding that there was a rash and negligent act on the part of the driver of the truck. Once this finding is given, the liability of the driver, the tort-feasor and the liability of the owner vicariously and that of the Insurer arises. Once there is a finding of rash and negligent act on behalf of the driver the claimant is entitled to compensation under the M. V. Act. It appears that by the enactment of S. 110-AA the tort-feasor has been exempted from paying any compensation, once it is found that the claimant has made an application for compensation under the Compensation Act and has been awarded compensation. But what happens to his liability? It appears that by the enactment of S. 110-AA the tort-feasor has been exempted from paying any compensation, once it is found that the claimant has made an application for compensation under the Compensation Act and has been awarded compensation. But what happens to his liability? Can the law make a distinction in the case of a tort-feasor only if the claimant has first applied under the Compensation Act? Would it not give rise to a situation where the tort-feasor would try to induce the claimant to go to the Commissioner under the Compensation Act, if need be by paying the claimant some amount to tide over, in order that the bigger liability to pay compensation be avoided. The poor and helpless claimant, in order to secure some amount quickly, may unknowingly approach the Commissioner under Compensation Act. Similarly, a clever employer in order to avoid his liability may induce the claimant to approach the Tribunal under the M. V. Act. This may lead to malpractice and manipulation. ( 26 ) IN our opinion, the principle of double jeopardy, as held in some cases, will not be applicable, in the present case or such cases. The respondents being different parties and against whom there are different causes of action the principle of double jeopardy will not be attracted. But then should the tort-feasor avoid his liability and go free, avoiding payment of compensation it is common knowledge that the amount of compensation payable under the M. V. Act is substantially more than is awarded under the Compensation Act. Could it be the real intention of the lawmakers that the tort-feasor should not be made to pay compensation, say in a case where the bread winner of the family dies in a motor accident leaving his entire family a destitute? It appears to us that law needs to be suitably amended so that the tort-teasor does not escape payment of compensation, in such a situation. ( 27 ) IF this is done it would go a long way in removing an anomaly and the tort-feasor would not escape payment of compensation merely because the claimant mistakenly claims under the Compensation Act or is persuaded to do so by the owner/driver of the vehicle. It is not the function of the Courts to legislate in such matters. It is for the legislature to take note of such lacunae and introduce remedial legislation. It is not the function of the Courts to legislate in such matters. It is for the legislature to take note of such lacunae and introduce remedial legislation. ( 28 ) IN our opinion, the law as it stands, cannot be stretched to say that in case of two different causes of action and where there are two different respondents, the claimant could claim compensation under both the Acts. The law is clear. S. 110-AA of the M. V. Act bars the claimant to seek compensation from more than one respondent. The law emphasises that he can claim compensation only under one forum and not both, and the choice is his. This view is in consonance with the language of the section. ( 29 ) IN the present case the appellant has received compensation under the Compensation Act. They are thus not entitled to claim compensation under the Motor Vehicles Act, as well. For the reasons indicated above, the appeal fails and is dismissed accordingly, but without any order as to costs. Appeal dismissed.