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1989 DIGILAW 300 (MP)

M. P. RAJYA PARIVAHAN NIGAM, BHOPAL v. SAHLIBAI

1989-09-07

A.G.QURESHI, V.D.GYANI

body1989
A. G. QURESHI, J. ( 1 ) THIS appeal is directed against the award dated 7-8-1980 passed by the Motor Accident Claims Tribunal, Mandleshwar in Claim Case No. 26 of 1979. The claim petition was filed on behalf of the respondents claiming Rs. 75,200/- as compensation for the death of Dasia s/o Galji Barela, resident of village Newali, district Khargone. Respondent No. 1 is the wife of the deceased and respondents Nos. 2 to 7 are the sons and daughters of the deceased who were minor at the time of the claim petition. ( 2 ) IT was alleged that bus number MPW 4498 of the ownership of appellant No. 1 was being driven by the appellant No. 2 on 11-2-1979 at about. 9 a. m. Deceased Dalia was working as a labourer. At that time the appellant No. 2 reached the spot driving the vehicle rashly and negligently and so driving the vehicle dashed it against the deceased due to which he received injuries and died on the spot. Dasia was 32 years of age at the time of the accident and he was getting daily wages at the rate of Rs. 3. 90 p. per day, which was later on revised to Rs. 4/- per day. He was also doing some additional work by which he was earning Rs. 3/- per day. He was spending at least Rs. 5/- per day on the respondent-claimants. He was a healthy man. Therefore, for loss of dependency, mental agony and deprivation of the company etc. , a claim of Rs. 75,200/- was made. ( 3 ) THE claim was resisted by the appellants on the ground that the vehicle was not being driven rashly and negligently and the deceased was the author of his own misfortune because he himself came before the running vehicle all of a sudden. ( 4 ) THE learned Tribunal, after recording the evidence, passed an award, in favour of the respondents, of Rs. 25,000/- and interest on the award amount from the date of the application till the recovery of the amount at the rate of. Rs. 4/- per cent per annum. An award for the cost in favour of the claimants against the non-applicants were also passed. 25,000/- and interest on the award amount from the date of the application till the recovery of the amount at the rate of. Rs. 4/- per cent per annum. An award for the cost in favour of the claimants against the non-applicants were also passed. ( 5 ) THE grievance of the appellants is that the award is based on improper appreciation of evidence because it has not been proved that the deceased died due to the rash and negligent act of the appellant No. 2. The finding of the tribunal pertaining to the age, income and dependency on the deceased has also been challenged. ( 6 ) BY way of cross-objection the respondents have claimed enhancement of the award and amount and also interest at a higher rate. ( 7 ) BY amending the appeal memo a new ground has been inserted by the appellants that the respondents had also filed a claim before the Commissioner for Workmen's Compensation in W. C. Case No. 31 of 80, which has awarded Rs. 11,520/-, vide order dated 3-10-1981. Therefore, the award by the lower Tribunal is without jurisdiction in view of the fact that the respondents have already opted for getting the compensation from the Commissioner for Workmen's Compensation. ( 8 ) THE learned counsel for the appellants Shri Dhupad strenuously argued that in view of the fact that the respondents have already obtained compensation from the Court of Commissioner for Workmen's Compensation, the lower Tribunal has erred in granting the relief sought by the respondents; the claim petition deserved to be dismissed on this ground alone. ( 9 ) ON the other hand the learned counsel for the respondents has argued that the respondents had opted for filing a claim under the Motor Vehicles Act and during the pendency of the application under the Motor Vehicles Act for claiming compensation, the proceedings pertaining to the compensation under the Workmen's Compensation commenced and since the award by the Commissioner for Workmen's Compensation was passed earlier, the respondents being illiterate have taken the award amount from that Court. This, however, would be construed to mean that the respondents had opted the forum of the Commissioner for Workmen's Compensation for redressal of their grievance. This, however, would be construed to mean that the respondents had opted the forum of the Commissioner for Workmen's Compensation for redressal of their grievance. Various authorities have been cited before us wherein it has been held that the claimant, in the case of an accident have to choose a forum between the one under the Motor Vehicles Act and the other under the Workmen's Compensation Act, 1923. The claimants are, however, debarred from seeking relief at both the forums. ( 10 ) IN the instant case, however, it appears that the petition for compensation before the Motor Accident Claims Tribunal was filed on 7-5-1979 as is evident from the record of the lower Tribunal. The file of the Commissioner for Workmen's compensation is not before us and a copy has also not been filed by the appellants. However, on the basis of the averments made in the appeal memo itself it is manifest that the case was registered before the Commissioner for Workmen's Compensation some where in the year 1980. It has not been disputed before us at the Bar that the claim before the Commissioner for Workmen's Compensation was filed after the filing of the application for claim under the Motor Vehicles Act, S. 3 (5) of the Workmen's Compensation Act, 1923 reads as under :-"3. Employer's liability for compensation :- (1) xx xx xx xx xx xx xx (5) Nothing therein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury- (a) if he has instituted a claim to compensation in respect of the injury before the Commissioner or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. ". ". As such in view of the fact that a claim for compensation was already pending before the Motor Accident Claims Tribunal when the proceedings under the Workmen's Compensation Act were initiated, an application for compensation before the Commissioner for Workmen's Compensation could not lie and unfortunately this fact was not brought to the notice of the Commissioner for Workmen's Compensation that an application for award of compensation under the Motor Vehicles Act was already pending before the Tribunal. The parties have not brought to our notice any other details pertaining to the compensation proceedings before the Commissioner for Workmen's Compensation. However, the fact remains that an award was passed in favour of the respondents by the Commissioner for Workmen's Compensation because the fact of the existence of the proceedings claiming compensation before the Motor Accident Claims Tribunal were not brought to its notice. Later on the case continued before the Motor Accident Claims Tribunal and the fact that compensation under the Workmen's Compensation Act, 1923 has been awarded was also not brought to the notice of the Tribunal. Therefore, the Tribunal passed the impugned award. Even till the time of filing of the appeal this fact was not known to the appellants. Therefore, by way of amendment, at a later stage this ground was introduced. There is catena of decisions on this point by different High Courts that the claimant can seek relief from only one of the forums available to him. A claimant can institute a claim either before the Commissioner for Workmen's Compensation or before the Motor Accident Claims Tribunal and in that respect he has an option. ( 11 ) AS discussed above on one hand S. 3 (5) of the Workmen's Compensation Act, 1923 bars an application for compensation under the said Act if a claimant has instituted any proceeding in a civil court. Similarly S. 110-AA of the Motor Vehicles Act states that notwithstanding anything contained in the 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 the person entitled to compensation may claim such compensation under either of those Acts but not under both. As such the language of S. 110-AA of the Motor Vehicles Act being unambiguous it cannot be disputed that the claimant has an option to claim compensation either under the Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1939, but once having opted for one forum he cannot invoke the jurisdiction of the other forum and the claimant is, therefore, debarred from invoking jurisdiction of both the forums for claiming compensation. ( 12 ) IN the instant case, however, as discussed above the respondents have invoked the jurisdiction of the Motor Accidents Claims Tribunal claiming compensation for the death of Dasia and during the pendency of those proceedings they have also obtained compensation from the Court of the Commissioner for Workmen's Compensation. It is not clear before us as to how the proceedings were initiated in the Court of Commissioner for Workmen's Compensation. The respondent No. 1 is an illiterate lady belonging to the scheduled tribe and the other respondents are her children who were minors. However, the learned counsel who was dealing with their case was under a moral duty to inform the Court about the acceptance of compensation by the respondents under the Workmen's Compensation Act, 1923. Unfortunately it was not brought to the notice of the lower Tribunal. However, in absence of the fact that how the proceedings were initiated in the Court of the Commissioner for Workmen's Compensation it cannot be said with certainty that the proceedings were initiated by the respondents. As such their acceptance of the compensation amount did not debar them from seeking a relief under the Motor Vehicles Act in the proceedings which were initiated earlier in point of time than the proceedings under the Workmen's Compensation Act before the lower Court. In the circumstances, we are of the view that the amount received by the respondents under the Workmen's Compensation Act should be deducted from the amount of the award given by the lower Tribunal in favour of the respondents. A Division Bench of this Court in Vimal v. Mansharam Sharma, 1989 Acc CJ 79 has taken a similar view and we are in respectful agreement with the aforesaid view taken by another Bench of this Court. ( 13 ) IN view of the facts of the instant case it is not necessary for us to refer to the other decisions cited at the Bar. ( 13 ) IN view of the facts of the instant case it is not necessary for us to refer to the other decisions cited at the Bar. ( 14 ) AS regards the other grounds raised in the appeal, we find that the learned lower Tribunal has rightly come to a conclusion that the accident occurred due to the rash and negligent driving by the appellant No. 2 and for his act the appellant No. 1 is vicariously liable being his employer at the time of the accident. The computation of the compensation amount is also in accordance with the settled principles, pertaining to the award of compensation. For the same reason the cross-objection filed by the respondents challenging the deductions for the payment in lump sum also cannot be accepted. Therefore, we hold that the lower Tribunal has not erred in any way in passing the award impugned. As regards the rate of interest, it is true that in view of the consistent view of the Supreme Court, the rate of interest should be 12 per cent. per annum. However, the amount of interest to be awarded during the pendency of, the proceedings can be awarded in view of the facts and circumstances of each case. In the instant case there were laches on the part of the respondents and, therefore considering all the circumstances the interest has been awarded by the learned Tribunal, which cannot be held to be erroneous. However, the future interest has to be paid at the rate of Rs. 12 per cent per annum. ( 15 ) IN view of the aforesaid discussion the appeal of the appellants is partly allowed. It is directed that an amount of Rs. 11,520/- shall be deducted from the award amount of Rs. 25,000/- passed by the lower Tribunal. The respondents shall be entitled to get an amount of Rs. 13,480/ - as the compensation amount from the appellants after deducting the amount of Rs. 11,520/- already received by them under the Workmen's Compensation Act, 1923. The respondents shall be entitled to an interest as awarded in the award from the date of the application till the date of decision of this appeal. Thereafter the respondents shall be entitled to get interest at the rate of Rs. 12/- per cent per annum on the award amount till its recovery. The respondents shall be entitled to an interest as awarded in the award from the date of the application till the date of decision of this appeal. Thereafter the respondents shall be entitled to get interest at the rate of Rs. 12/- per cent per annum on the award amount till its recovery. The cost of this appeal shall be borne by the parties as incurred in the circumstances of the case. The award passed by the lower Tribunal be modified accordingly. Appeal partly allowed. .