JUDGMENT : Being aggrieved by the award dated 11-4-11 passed by IV MACT, Ratlam in Claim Case No. 1/09, whereby claim petition filed by the appellant on account of injuries sustained in a motor accident, which took place on 26-1-08 was dismissed, present appeal has been filed. 2. Short facts of the case are that the appellant filed a claim petition alleging that the appellant is a truck driver. On 26-1-08 the truck bearing registration No. MP/43-G/0360 owned by respondent Nos. 4 and 5 was being driven by appellant, which was met with an accident with another truck bearing registration No. GJ/17-G/9087, driven by respondent No. 2, rashly and negligently, with the result, appellant sustained grievous injuries. It was prayed that the claim petition be allowed. After framing of issues and recording of evidence learned Tribunal dismissed the claim petition, against which present appeal has been filed. 3. Learned Counsel for the appellant frankly submits that the claim petition has wrongly been filed under the provisions of Motor Vehicles Act, which ought to have been filed under the provisions of Workmen's Compensation Act. It is submitted that the appellant be permitted to withdraw the claim petition with a liberty to file the claim petition under the provisions of Workmen's Compensation Act. 4. Learned Counsels for respondent Nos. 3 and 6 submit that after availing remedy under the provisions of Motor Vehicles Act, appellant cannot be permitted to avail the remedy under the provisions of Workmen's Compensation Act. For this contention, reliance is placed upon Section 167 of Motor Vehicles Act and Section 3 (5) of Workmen's Compensation Act, 1923. It is submitted that hence the appeal filed by the appellant has no merits and the same be dismissed. 5. Section 167 of Motor Vehicles Act lays down 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." 6. Section 3 of Workmen's Compensation Act deals with Employer's liability for compensation. Section 3 of Workmen's Compensation Act deals with Employer's liability for compensation. Sub-section (5) of Section 3 of Workmen's Compensation Act reads as under :- "(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) 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." . 7. In the matter of Sheikh Imam Bai Vs. Oriental Fire and General Insurance Co., 1989 ACJ 291, Andhra Pradesh High Court has held that once option was exercised and award was passed under Workmen's Compensation Act, 1923, it is not open to the claimants to avail remedy under the Motor Vehicles Act. In the present case, no remedy has been availed by the appellant under the provisions of Workmen's Compensation Act. It is true that remedy availed by the appellant under the provisions of Motor Vehicles Act failed as claim filed by appellant was dismissed by the learned Tribunal, but that award has also not attained finality as appeal is still pending. If after dismissal of award instead of filing of appeal, appellant would have approach directly to the Commissioner for Workmen's Compensation under the provisions of Workmen's Corporation Act, 1923, then that petition could have been dismissed on the ground that appellant has already exercised option under the provisions of Motor Vehicles Act, therefore, appellant is not entitled to file claim petition under the provisions of Workmen's Compensation Act. But, in the present case, situation is quite different. After dismissal of claim petition, appellant has filed the appeal. Since the appeal is in continuation of the proceedings initiated before the Court below, therefore, it can safely be said that the award has not attained the finality. But, in the present case, situation is quite different. After dismissal of claim petition, appellant has filed the appeal. Since the appeal is in continuation of the proceedings initiated before the Court below, therefore, it can safely be said that the award has not attained the finality. In view of this, appeal filed by the appellant is disposed of and the claim petition filed by appellant is dismissed as withdrawn with a liberty to the appellant to file a claim petition under the provisions of Workmen's Compensation Act, 1923. If such a proceedings are initiated by the appellant, then learned Court below shall decide the same on merits and shall not dismiss the same on the ground that appellant has already availed the remedy under the provisions of Motor Vehicles Act. While deciding the claim petition, Commissioner shall take into consideration, the evidence adduced by the parties and shall not influence in any manner by the observations, if any, made in the impugned award. 8. With the aforesaid observations, appeal stands disposed of. No order as to costs.