Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 489 (KAR)

Divisional Manager v. Mehboobsab

2008-09-11

B.S.PATIL

body2008
JUDGMENT B.S. Patil, J.— This appeal is preferred by the Divisional Manager, New India Assurance Company Limited, Gulbarga, against the order passed by the Commissioner for Workmen's Compensation, Gulbarga. By the impugned order passed on 30-6-2007, the Commissioner has awarded compensation in a sum of Rs. 1,00,219/- along with interest at 12% with effect from the expiry of 30 days from the date of accident. 2. The main contention of the Appellant in this case is that the proceedings initiated before the Commissioner for Workmen's Compensation were incompetent and illegal as the claimant had already filed a claim petition invoking the provisions of Motor Vehicles Act, 1988. It is in this background that the entire controversy is required to be examined in this case. 3. The facts that are not in dispute reveal that the claimant was employed as a cleaner under one Khaja Farid Hasan, the 2nd Respondent herein in his lorry. While he was discharging his duties as such on 30-7-2003 in the lorry bearing registration No. KA-39/A-47 in Basavakalyana, he met with an accident resulting in personal injuries. The claimant sustained compression fracture of L-1 vertebra. He took treatment in Government Hospital at Basavakalyana and later on at St. Therasa's Hospital, Hyderabad. He moved the Commissioner for Workmen's Compensation by filing a claim petition during the year 2004. The claimant examined himself and a Doctor by name S.B. Kamareddy. The Appellant -Insurance Company resisted the claim contending inter alia that the claim petition was not maintainable as the claimant had moved the Motor Accident Claims' Tribunal, Gulbarga, in MVC No. 457 of 2003 for the injuries caused in the said accident and that the Tribunal by its judgment and award dated 15-6-2005 awarded compensation in a sum of Rs. 25,000/- along with interest at 6% p.a. and that the Appellant -Insurance Company had deposited the said amount in the Court on 14-10-2005. It contended that the claimant, could not, on the same cause of action maintain another claim before the Commissioner. 4. The Commissioner having considered the question raised regarding the maintainability of the claim before him has held that the claimant was entitled to claim compensation before either of the two forums but not before both and hence the amount awarded by the Motor Accident Claims' Tribunal in a sum of Rs. 4. The Commissioner having considered the question raised regarding the maintainability of the claim before him has held that the claimant was entitled to claim compensation before either of the two forums but not before both and hence the amount awarded by the Motor Accident Claims' Tribunal in a sum of Rs. 25,000/- along with interest was ordered to be deducted from the amount determined as compensation payable by him as per the provisions of the Workmen's Compensation Act, 1923. In arriving at this decision, the Commissioner has drawn support from the judgment in the case of Gujarat State Road Transport Corporation Vs. Hathibhai Senghabhai Ruppura and Others, (2003) 2 LLJ 676 Guj 5. On facts, the Commissioner found that the injured claimant was aged 21 years and was earning Rs. 3,000/- per month as a cleaner. Taking note of the evidence of the Doctor and the permanent physical impairment suffered, the Commissioner found that the claimant had lost earning capacity to an extent of 25%. Therefore, applying the relevant factor namely 222.71, a sum of Rs. 1,00,219/- is determined as compensation payable. 6. Learned Counsel appearing for the Appellant -Insurance Company Sri Veeresh Patil submits that as per Section 167 of the Motor Vehicles Act, 1988 read with Section 3(5) of the Workmen's Compensation Act, 1923, the proceedings instituted before the Commissioner for Workmen's Compensation were illegal and untenable in law and the Commissioner could not have exercised his jurisdiction to pass the award under challenge. He places reliance on the judgment rendered by the Division Bench of this Court in the case of Managing Director, Karnataka Power Corporation Ltd. Vs. Geetha, ILR (1987) KAR 142 He has also relied on the judgment reported in Union of India v. Arvind Kumar and Ors. AIR 2008 (NOC) 1428 of the High Court of Chattisgarh. 7. Learned Counsel appearing for the Respondent -claimant Sri Huleppa Heroor strongly contended that if the object and the purpose behind the enactment of Workmen's Compensation Act, which is a welfare legislation is kept in mind, the award passed by the Commissioner is just and reasonable. AIR 2008 (NOC) 1428 of the High Court of Chattisgarh. 7. Learned Counsel appearing for the Respondent -claimant Sri Huleppa Heroor strongly contended that if the object and the purpose behind the enactment of Workmen's Compensation Act, which is a welfare legislation is kept in mind, the award passed by the Commissioner is just and reasonable. He submits that as long as the claimant is not permitted to avail the benefits under both the enactments and so long as he is made to receive the compensation as determined by the Commissioner for Workmen's Compensation by deducting the amount that was awarded by the Claims' Tribunal under the provisions of the Motor Vehicles Act, there is no justification for interference with the order passed by the Commissioner. He has placed reliance on the decision rendered by the High Court of Madhya Pradesh in the case of M.P. Rajya Parivahan Nigam, Bhopal and Ors. v. Sahlibai and Ors. 1990 (2) T.A.C. 269 (MP). Reliance is also placed on the judgment rendered by the High Court of Punjab and Haryana in the case of Pawan Kumar v. Commissioner, Workmen's Compensation, Jalandhar and Anr. 1997(2) T.A.C. 41 (P&H). 8. Having heard the learned Counsel for the parties and upon consideration of the materials on record, the substantial question that arises for consideration is: Whether the Commissioner was right and justified in holding that the claim petition filed before him was maintainable and consequently in awarding the compensation as determined by him? 9. Section 3 of the Workmen's Compensation Act provides for the employer's liability for paying compensation. If any personal injury is caused to a workman by an accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in the Act. Section 3(5) of the Act reads as under: 3. (5) Nothing herein 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 a Commissioner; or (b) .... 10. 10. It is thus clear from the provisions extracted herein above that if the workman had already instituted a suit for damages in a Civil Court in respect of the very injury against the employer or any other person, the provisions of the Workmen's Compensation Act, 1923 will not confer any right on such workman to seek compensation by invoking the provisions of the Act. Likewise, if the provisions of the Workmen's Compensation Act are invoked and a claim is made before the Competent Authority by the workman, no suit for damages is maintainable by a workman in any Court of law in respect of any injury for which he has already instituted a claim before the Commissioner. The object behind the provision is amply clear, in that, once a particular Forum is chosen by the workman under the civil law or under the Special legislation namely Workmen's Compensation Act, it will not be open for him to opt for the other forum. The legislative intent is clear and unequivocal in this regard as is discernible from Sub-section (5) of Section 3 of the Workmen's Compensation Act, 1923. 11. Section 167 of the Motor Vehicles Act provides for an option to the claimant to institute a claim for compensation, where the claim could be maintained both under the provisions of the Motor Vehicles Act and the Workmen's Compensation Act, under either of them and not under both. Section 167 of the Motor Vehicles Act, 1988 states as under: 167. Option regarding claims for compensation in certain cases.--Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 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 without prejudice to the provisions of Chapter X claim such compensation under either of those Act but not under both. 12. A perusal of Section 167 as extracted herein above shows that it starts with a non obstante clause and states that notwithstanding anything contained in the Workmen's Compensation Act where the cause of action arises both under the Workmen's Compensation Act and under the Motor Vehicles Act, the person entitled to compensation can claim such compensation under either of the two Acts but not under both. Therefore, the intent and purpose behind enacting Section 167 is also that the claimant is required to choose either of the two Forums to seek redressal and not both. 13. In the instant case, the claimant has resorted to the provisions of the Motor Vehicles Act and has instituted a claim petition before the Motor Accident Claims' Tribunal on 30-7-2003. Nearly one year thereafter he has filed a claim before the Commissioner for Workmen's Compensation which is registered as W.C. Case No. 119 of 2004. If the contention of the learned Counsel for the Respondent -claimant is accepted and if the claimant is allowed to get the compensation as per the order passed by the Commissioner, it would tantamount to permitting a claimant who has an opportunity to institute proceedings before either of the Forum to institute two parallel proceedings and pursue them to their logical end and thereafter decide to elect to avail the benefit of the Forum which has awarded him higher compensation. This consequence is not contemplated nor is permitted as per the provisions referred to hereinabove. On the other hand, this is precisely what is sought to be prevented by enacting the provisions under Section 3(5) of the Workmen's Compensation Act and Section 167 of the Motor Vehicles Act. Reliance placed by the learned Counsel on the judgment of the Madhya Pradesh High Court in M.P. Rajya Parivahan Nigam's case is not apt to the case on hand. In the said case also, claim for compensation was already pending before the Motor Accident Claims' Tribunal when the proceedings under the Workmen's Compensation Act were initiated. It is therefore observed that the later proceedings before the Commissioner for Workmen's Compensation could not have been maintained when the claim petition under the Motor Vehicles Act was already pending before the Tribunal. In paragraph 12 of the said judgment, the High Court has however observed that there was no material before the Court to disclose how the proceedings came to be initiated before the Commissioner for Workmen's Compensation. Keeping in mind, the fact that the claimant was an illiterate lady and her children were minors and she was fighting for compensation for the death of her husband, the High Court held that the amount received by the claimants under the Workmen's Compensation Act should be deducted from the amount of the award passed by the Motor Accident Claims' Tribunal. Therefore, the ratio laid down in the said decision does not in any manner come to the aid of the claimant in this case. 14. With regard to the decision in the case of Gujarat State Road Transport Corporation, on which the Commissioner has placed reliance, it is necessary to point out that the facts and circumstances involved in the said case were totally different inasmuch as the legal representatives of the deceased had not instituted any proceedings under the Workmen's Compensation Act, but the employer had deposited the amount which was liable to be paid as per the provisions of the Workmen's Compensation Act. The legal representatives had received the said amount but had instituted proceedings only under the provisions of the Motor Vehicles Act. Under such circumstances, the Division Bench of the Gujarat High Court held that it cannot be said that the claimants had elected to institute the proceedings under the Workmen's Compensation Act and were therefore debarred from maintaining claim under the provisions of the Motor Vehicles Act. In fact, the Division Bench of this Court in the decision in the case of The Managing Director, Karnataka Power Corporation Limited, has laid down the proposition that merely because the employer had deposited the amount on his own volition under the provisions of the Workmen's Compensation Act and that the claimant had withdrawn the said amount, did not tantamount to the claimants exercising and electing to institute proceedings under the Workmen's Compensation Act. The Division Bench of this Court has observed in the said case that mere receipt of money without more, does not indicate any election, though the principle of election was recognised under Section 110-AA of the Motor Vehicles Act. In paragraph 6 of the said judgment, this Court has observed that wherever there was an employment-injury or death, the employer was required by law to deposit such amount as was awardable under the Schedule to that Act with the Commissioner within the stipulated time. In depositing the said amount, the employer purported to discharge his statutory obligation under the law. If that amount were to be paid to the claimants, all that can be said was that such payment should be given deduction in the compensation awardable under the proceedings initiated under the Motor Vehicles Act. In depositing the said amount, the employer purported to discharge his statutory obligation under the law. If that amount were to be paid to the claimants, all that can be said was that such payment should be given deduction in the compensation awardable under the proceedings initiated under the Motor Vehicles Act. The bar contained under Section 110-AA of the Motor Vehicles Act will not be attracted because the claimants had not made any election under Section 110-AA of the Motor Vehicles Act. 15. The facts in the present case are different. The injured claimant has elected to opt for the remedy under the provisions of the Motor Vehicles Act, 1988. Hence, the bar contained under Section 167 of the Motor Vehicles Act is applicable. Hence, in the light of the law laid down by this Court as referred to herein above and in the wake of the provisions contained under Section 3(5) of the Workmen's Compensation Act, 1923 and the provisions contained under Section 167 of the Motor Vehicles Act, 1988 it is to be held that the award passed by the Commissioner in the instant case is vitiated as the claimant was not entitled to initiate parallel proceedings by invoking the provisions of the Workmen's Compensation Act, having already elected to initiate proceedings under the Motor Vehicles Act. Hence, I have no hesitation to hold that the award passed by the Commissioner is illegal and unsustainable. 16. It is unfortunate that the injured claimant who has suffered injury in a sensitive part of his body i.e., in his vertebra and is found disabled, is uncompensated as his claim made before the Claims' Tribunal has resulted in determination of compensation only in a sum of Rs. 25,000/-. It is not for this Court to examine the correctness or otherwise of the award passed by the Motor Accident Claims' Tribunal. It is open to the claimant to challenge the award passed by the Motor Accident Claims' Tribunal before the proper appellate forum by seeking condonation of delay in presenting the appeal in accordance with law, particularly having regard to the pendency of these proceedings in this appeal. This observation is necessitated having regard to the unfortunate situation in which the claimant finds himself due to the wrong advise given to him. 17. In the result and for the foregoing, this appeal is allowed. This observation is necessitated having regard to the unfortunate situation in which the claimant finds himself due to the wrong advise given to him. 17. In the result and for the foregoing, this appeal is allowed. The order passed by the Commissioner for Workmen's Compensation is set aside. Parties to bear their respective costs. Amount in deposit shall be permitted to be withdrawn by the Appellant -Insurance Company.