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2008 DIGILAW 822 (MP)

Rajani Agrawal v. Ramswaroop

2008-07-03

INDRANI DATTA, SUBHASH SAMVATSAR

body2008
ORDER 1. This appeal is preferred by the claimant being aggrieved by the award dated 4.6.2007 passed by Commissioner, Workmen's Compensation, Labour Court No.1, Gwalior in Case No. COC 8/B/WCA/2004 (Fatal); whereby the Commissioner has dismissed the claim petition filed by the present appellant-claimant on the ground that she has already approached the Motor Accidents Claims Tribunal for compensation and her claim was dismissed. 2. The brief facts of the case are that the appellant, who is widow of deceased Sanjeev alias Munna Agrawal had filed claim petition for compensation for the death of her husband before the Motor Accidents Claims Tribunal, Dabra, which was registered as Claim Case No. 40/02. The Claims Tribnal dismissed the claim petition by, award dated 29.3.2003. From the perusal of the said award, it is clear that the Claims Tribunal while dismissing the claim petition has granted liberty to the present appellant to move appropriate application before Commissioner, Workmen's Compensation for award for the death of her husband and for redressal of her grievance. It also appears that Smt. Pushpa Bai and Madanlal were also the claimants before the Claims Tribunal along with the present appellant. After dismissal of her claim petition, being aggrieved by this award, Madanlal and Smt. Pushpa Bai preferred appeal before this Court by filing M.A. No. 555/05, which was dismissed as withdrawn on 25.7.2003 and therefore, the present claimant-appellant has filed this appeal under section 30 of Workmen's Compensation Act, 1923. 3. From the perusal of the impugned award, it also appears that Smt. Pushpa Bai and Madanlal had also filed a separate application before the Commissioner, Workmen's Compensation, which was registered as case No. COC 19/B/WCA/04 (Fatal). This claim petition was also dismissed. The petition filed by Smt. Rajani Agrawal was dismissed by the impugned award, hence this appeal. 4. This appeal was admitted by this Court on 5.10.2007 on following substantial question of Law: "Whether dismissal of the claim petition under the Motor Vehicles Act with liberty to the claimant to file a petition under Workmen's Compensation Act will operate as res judicata before the Commissioner, Workmen's Compensation?" 5. The question which was framed by this Court at the time of admission is that the dismissal of claim petition under Motor Vehicles Act with liberty to the claimant to file a petition under Workmen's Compensation Act will operate as res judicata before the Commissioner, Workmen's Compensation. 6. The question which was framed by this Court at the time of admission is that the dismissal of claim petition under Motor Vehicles Act with liberty to the claimant to file a petition under Workmen's Compensation Act will operate as res judicata before the Commissioner, Workmen's Compensation. 6. So far as the question framed by this Court about applicability of principle of res judicata is concerned, in the present case, in fact, the said question does not arise for consideration because the Claims Tribunal itself has held that the claim petition before Claims Tribunal is not maintainable and proper forum for deciding the matter is Commissioner, Workmen's Compensation and even it is held that the said finding has attained the finality, as per the said finality, the claim petition is maintainable. 7. The main question which is to be considered is whether the claim petition under Workmen's Compensation Act is maintainable after dismissal of claim petition in a miscellaneous appeal. 8. Section 167 of the Motor Vehicles Act, 1988 provides that a claimant can approach for compensation either before the Claims Tribunal situated under the Motor Vehicles Act or under Workmen's Compensation Act, but he cannot avail both the remedies. The section reads 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 Acts but not under both." . 9. Shri B.N. Malhotra, the learned counsel for appellant has contended that the Commissioner has erred in relying on a judgment of apex Court in National Insurance Co. Ltd. v. Mastan and another [2006 ACJ 528] as the facts of the case were quite distinguishable. In that case, the claimant has first approached the Commissioner, Workmen's Compensation, where a sum of Rs. 2,70,264/- was awarded as compensation and, thereafter, he approached Motor Accidents Claims Tribunal and, therefore, the said claim was not maintainable. Ltd. v. Mastan and another [2006 ACJ 528] as the facts of the case were quite distinguishable. In that case, the claimant has first approached the Commissioner, Workmen's Compensation, where a sum of Rs. 2,70,264/- was awarded as compensation and, thereafter, he approached Motor Accidents Claims Tribunal and, therefore, the said claim was not maintainable. In the present case, Motor Accidents Claims Tribunal has not awarded anything to the appellant except the interim award under section 140 of the Motor Vehicles Act but dismissed the claim on the ground that it is not maintainable before the said forum and appropriate forum is Commissioner, Workmen's Compensation. The Claims Tribunal, while dismissing the claim has granted liberty to the present appellant to move the Commissioner under Workmen's Compensation, which is not the situation in the case before the apex Court. 10. Counsel for the appellant relied on a Division Bench judgment of this Court in the case of Raja S/o Girdharilal Solanki v. S/o Bharat Rajput [ 2007 (I) MPWN 47 = 2007 (1) MPLJ 325 ]. In that case the claimant has first approached the Commissioner, Workmen's Compensation and when his claim petition was dismissed on technical ground, he approached the Claims Tribunal under Motor Vehicles Act and the Division Bench held as under: "However, in such a situation, where a person has been deprived of from taking remedy on the ground that basic foundation on which he was proceeded on existing then, we are of the view that even after dismissal of their case on technical ground, they cannot be deprived of a remedy of approaching the Tribunal under Motor Vehicles Act." 11. In the present case, the claim petition filed by the present appellant before the Motor Vehicles Act was dismissed on technical ground and a liberty was granted to her to approach under Workmen's Compensation Act. Hence, in the present case, it cannot be said that dismissal of the claim petition before the Commissioner was not maintainable. 12. Smt. Vandana Kekre, the learned counsel for the Insurance Company has contended that as the claim petition filed by Smt. Pushpabai and Madanlal which was registered as Case No. 19-B/WCA/04 (Fatal) was also dismissed and as this award is not challenged by Smt. Pushpabai and Madanlal and has attained the finality the present appeal is not maintainable. 13. 12. Smt. Vandana Kekre, the learned counsel for the Insurance Company has contended that as the claim petition filed by Smt. Pushpabai and Madanlal which was registered as Case No. 19-B/WCA/04 (Fatal) was also dismissed and as this award is not challenged by Smt. Pushpabai and Madanlal and has attained the finality the present appeal is not maintainable. 13. After hearing the parties, we find that this objections is without any merit merely because Smt. Pushpabai and Madanlal have not challenged the award passed against them, hence, it cannot be said that Rajani Agrawal has no right to file an appeal against the award. Her claim of filing appeal cannot be defeated only because the other claimants in some other case have not challenged the award. It is further contended by Ku. Vandana Kekre that the claimants have received a sum of Rs. 50,000/- under section 140 of Motor Vehicles Act, therefore, they are not entitled to any compensation. The said argument is also is not maintainable under section 143 of Motor Vehicles Act itself, which provides that provision of this Act shall also apply in relation to any claim for compensation is respect of death or permanent disablement of any person under the Workmen's Compensation resulting from an accident of the nature referred to in sub-section (1) of section 140. In view of this provision, on this ground also the claim petition filed by the appellant cannot be dismissed. 14. As Commissioner of Workmen's Compensation has not assessed the amount of damages, the appeal is allowed and the matter is remitted back to Commissioner, Workmen's Compensation, who shall decide the claim in accordance with law. Parties are directed to remain present before the Commissioner on 1st August, 2008 and the Commissioner shall decide the case afresh within a period of four months from today.