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2012 DIGILAW 284 (MP)

BHARTI AXA GENERAL INSURANCE CO. LTD. v. SHANTI

2012-03-12

ANIL SHARMA

body2012
JUDGMENT : Anil Sharma, J. Arguments heard. This civil revision has been filed by the applicant insurance company u/s 115 of the CPC against the order dated 13.12.2011 passed in Case No. 01/B/WCA/10(F) by the Commissioner [Workmen's Compensation No. 1], Gwalior (MP) challenging the maintainability of the claim application under the Workmen's Compensation Act on the ground that claimants have already taken compensation u/s 166 of Motor Vehicles Act filed before learned Motor Accidents Claims Tribunal from the owner/insurer of the vehicle, which dashed the vehicle driven by deceased driver Phool Singh, who died in the accident. 2. Learned counsel for the applicant insurance company has submitted that according to the provisions of section 167 of Motor Vehicles Act if any claimant prefers any claim u/s 166 of the Motor Vehicles Act, then he cannot claim compensation under Workmen's Compensation Act. In support of his submission, he placed reliance on the decision of Hon'ble Apex Court in the matter of National Insurance Co. Ltd. Vs. Sebastian K. Jacob, (2009) 4 SCC 778 , in which it has been held that if the claimant has received compensation from more than one insurance company under sections 147 and 149 of Motor Vehicles Act, 1988 and he is again claiming the whole of the claim amount from the insurance company, hence the matter is remitted to the High Court for fresh consideration because the High Court has not considered the aspect that the claimant had already received damages claimed. 3. The learned counsel for the applicant insurance company has also placed reliance on the decision of Bombay High Court in the matter of Nitin Transport Vs. Maharashtra State Road Transport Corporation and Others, (2002) ACJ 1383, in which it has been held that once claimant has accepted Rs. 62,414 from the insurance company in full and final settlement of its claim for repairs of the tanker, it cannot again claim any amount in this regard from Maharashtra State Road Transport Corporation (MSRTC). 4. For ready reference, it is pertinent to mention the provision of section 167 of the Motor Vehicles Act, 1988 which reads as under: 167. 62,414 from the insurance company in full and final settlement of its claim for repairs of the tanker, it cannot again claim any amount in this regard from Maharashtra State Road Transport Corporation (MSRTC). 4. For ready reference, it is pertinent to mention the provision of section 167 of the Motor Vehicles Act, 1988 which 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. 5. Learned counsel for non-applicant Nos. 1 and 2, on the other hand, has submitted that the learned Commissioner for Workmen's Compensation has passed a reasoned order by considering the single Bench decision of Hon'ble Rajasthan High Court in the matter of The New India Assurance Co. Ltd. Vs. Smt. Bidami and Others, (2011) ACJ 1263, in which it has been held that the claimants in both the claim petitions were different, i.e. u/s 167 of Motor Vehicles Act and u/s 3(5) of the Workmen's Compensation Act, even though the insurance company was common, so doctrine of election u/s 167 does not apply qua the claimants. 6. In the present case, compensation for the death of deceased driver Phool Singh has been claimed by his wife by preferring a claim application u/s 166 of the Motor Vehicles Act before the learned Claims Tribunal and after compensation was awarded by learned Claims Tribunal, she again filed claim application under Workmen's Compensation Act. Perusal of the copy of award dated 23.11.2010, passed in Claim Case Nos. 30 and 56 of 2010 by learned Third Additional Judge to the court of First Additional Motor Accidents Claims Tribunal, Gwalior (MP) clears that the compensation has been awarded to the tune of Rs. 3,02,000 to the dependants of deceased-driver, therefore, the second claim application under Workmen's Compensation Act is barred looking to the provisions of section 167 of Motor Vehicles Act. 7. Learned counsel for non-applicant Nos. 1 and 2 in support of his arguments has also cited a judgment of this High Court in the matter of Madhya Pradesh State Road Trans. 3,02,000 to the dependants of deceased-driver, therefore, the second claim application under Workmen's Compensation Act is barred looking to the provisions of section 167 of Motor Vehicles Act. 7. Learned counsel for non-applicant Nos. 1 and 2 in support of his arguments has also cited a judgment of this High Court in the matter of Madhya Pradesh State Road Trans. Corpn. Vs. Praveer Kumar Bhatnagar and Another, (1994) ACJ 579, whereby it relates to compensation claimed under the Employee's State Insurance Act. It has been held that the award passed by Claims Tribunal u/s 110-B of the Motor Vehicles Act is valid and enforceable and application made by the claimants u/s 110-A being not barred by section 53 of Employee's State Insurance Act. 8. The above said citation relied on by learned counsel for the non-applicant Nos. 1 and 2 is not applicable to the present case. Therefore, the learned Commissioner has not exercised jurisdiction vested in it while dismissing the application by holding that claim made by the claimants is not maintainable. Second claim application filed by the claimants under Workmen's Compensation Act after passing of the award u/s 166 of the Motor Vehicles Act for the same persons is not maintainable and the same is dismissed. The impugned order is hereby quashed.