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2011 DIGILAW 160 (CHH)

Gomti Bai v. Dushyant Kumar

2011-04-20

I.M.QUDDUSI, PRASHANT KUMAR MISHRA

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JUDGMENT : Prashant Kumar Mishra, J. This appeal u/s 173 of Motor Vehicles Act has been preferred by the claimants whose application for compensation by way of a cross-claim has been rejected by the Additional Motor Accidents Claims Tribunal, Balod, District Durg. Facts of the case, in short, are that at about 12.30 p.m. on 9.12.2004 the deceased was working in the mines at Rajhara. At that time a Tipper driven by respondent No. 2 in a rash and negligent manner dashed the deceased Shatrughan Rajput as a result of which he sustained grievous injuries and was taken to Bhilai Steel Plant Hospital, where he was declared dead. The deceased was a regular employee earning Rs. 8,025 as salary from Bhilai Steel Plant. 2. Admittedly, the respondent No. 3, Bhilai Steel Plant, had deposited the entire amount of compensation before the Commissioner, Workmen's Compensation payable to the legal representatives of deceased Shatrughan Rajput. The respondent No. 3 deposited an amount of Rs. 2,71,120. After issuing notice the Commissioner awarded compensation of Rs. 2,70,620 which the present appellants received. In the said proceeding Dushyant Kumar, respondent No. 1, was an objector claiming to be son of the deceased, however, his claim was rejected on the ground that even accepting his plea of being a son of the deceased, he being more than 18 years of age, to be exact, being 24 years of age, on the date of accident, would not be covered within the definition of the term 'dependant' and as such he cannot be a claimant under the Workmen's Compensation Act. 3. Respondent No. 1 Dushyant Kumar subsequently preferred claim petition u/s 166 of Motor Vehicles Act. In the said claim petition the present appellants moved a cross-claim. The claim and the cross-claim have been rejected by learned Claims Tribunal by the impugned order on the ground that the claimants including the cross-claimant having preferred claim under the provisions of Workmen's Compensation Act, 1923, are not entitled to move under Motor Vehicles Act in view of the express bar contained u/s 167 of the 1988 Act. 4. Learned counsel for appellant, placing reliance on judgment of Bombay High Court in the matter of Shantabai Parshuram Mule and Others Vs. 4. Learned counsel for appellant, placing reliance on judgment of Bombay High Court in the matter of Shantabai Parshuram Mule and Others Vs. Sharda Prasadsingh and Others, (1992) ACJ 270, contended that even after receiving the claim under the 1923 Act, the claimants are entitled to move u/s 166 of 1988 Act, because before the Commissioner the employer, of its own, had deposited the amount and no application u/s 10 of 1923 Act was moved by the claimants-appellants. On the other hand, learned counsel for the respondent has supported the impugned order by placing reliance on provision contained u/s 167 of the 1988 Act. 5. The short question arising for determination in this appeal is whether having received the amount of compensation as assessed by the Commissioner, Workmen's Compensation under the 1923 Act, though no application was moved by the claimant u/s 10 of the 1923 Act, the bar u/s 167 of the 1988 Act would still be applicable. 6. Section 167 of the 1988 Act reads as under : 167. Option regarding claims for compensation in certain cases.-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 without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. 7. Dealing with the principle 'doctrine of election' as contained in section 167 of the 1988 Act, the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Mastan and Another (2006) 2 SCC 641 , has held thus in paras 21, 22, 23, 24, 26 and 27 : (21) Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accidents Claims Tribunal, having regard to its rights and liabilities vis-a-vis the third person, may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of reference by incorporation has limited application. In a given situation, the Accidents Claims Tribunal, having regard to its rights and liabilities vis-a-vis the third person, may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts, cannot enforce liabilities of the insurer under both the Acts. He has to elect for one. (22) Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim compensation under either of those Acts but not under both. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. (23) The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. (24) In Nagubai Ammal and Others Vs. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. (24) In Nagubai Ammal and Others Vs. B. Shama Rao and Others AIR 1956 SC 593 , it was stated : It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to relief’s claimed in respect of the same transaction and to the persons who are parties thereto. (26) P.R. Deshpande Vs. Maruti Balaram Haibatti (1998) 6 SCC 507 , stated the law thus : (8) The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. [See also Devasahayam (D) by LRs. Vs. P. Savithramma and Others, (2005) 7 SCC 653 (27) Respondent No. 1 having chosen the forum under the 1923 Act for the purpose of obtaining the compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by section 143 thereof. (Emphasis supplied) 8. In view of the law laid down by the Hon'ble Apex Court in the above referred judgment of National Insurance Co. Ltd. Vs. (Emphasis supplied) 8. In view of the law laid down by the Hon'ble Apex Court in the above referred judgment of National Insurance Co. Ltd. Vs. Mastan and Another (2006) 2 SCC 641 , and applying the said ratio in the facts of the present case wherein the appellant has already received the claim offered by the Commissioner for Workmen's Compensation, this court is of the opinion that the appellants having enforced liabilities of the employer and insurer and having received the benefit/relief under the 1923 Act are precluded/estopped by doctrine of election as envisaged u/s 167 of the 1988 Act to maintain a claim u/s 166 of the Motor Vehicles Act, 1988. 9. Reliance placed by the learned counsel for the appellant on the judgment of Bombay High Court has no substance in view of the subsequent decision of the Hon'ble Supreme Court holding that when the claimants have enforced the liability and obtained relief under one of the Acts, subsequent application under the other Act is not maintainable. Learned Claims Tribunal has not committed any illegality in dismissing the claim/cross-claim preferred by claimants-appellants. Consequently the instant appeal fails and is hereby dismissed.