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2014 DIGILAW 1961 (MAD)

United India Insurance Co. Ltd. v. Anthony Selvam

2014-07-04

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. United India Insurance Co. Ltd. that figured as the second respondent before the Motor Accident Claims Tribunal (VI Judge, Court of Small Causes), Chennai in M.C.O.P.No.1005/2010 is the appellant in the civil miscellaneous appeal. Anthony Selvam, the first respondent herein filed the above said MCOP under Section 166 of the Motor Vehicles Act, 1988 against P.Damodaran, the second respondent herein and the appellant herein/insurance company, claiming a sum of Rs.2.00 Lakhs as compensation for the injuries allegedly sustained by him in an accident that took place on 19.11.2002 at about 01.10 Hrs. at Erukkanchery High Road, Erukkanchery, in which the lorry bearing Registration No.TNG 7876 belonging to the second respondent herein, which according to the first respondent herein/claimant, stood insured with the appellant herein/insurance company, hit the auto-rickshaw bearing Regn.No.TN-05 H0388 which was driven by the first respondent herein/petitioner. He had also contended in his petition that the accident took place due to the negligence on the part of the driver of the lorry. Claiming that he sustained grievous injuries leading to permanent disability, he had claimed the above said amount, namely Rs.2.00 Lakhs, as compensation under the structured formula provided in the second schedule invoking the no fault liability clause found in Section 163-A of the Motor Vehicles Act, 1988. 2. The second respondent herein, namely the owner of the lorry said to be the offending vehicle, did not contest the case. The appellant herein/insurer alone contested the case by filing a counter and additional counter contending that the lorry bearing Regn. No.TNG 7876 was not validly insured with the appellant herein with necessary coverage at the time of accident. It was also contended therein that the first respondent herein/claimant should prove that the driver of the said lorry did possess a valid driving license to drive the vehicle in question and that the claimant should also prove the accident as well as the negligent aspect. It was further contended that the first respondent herein/claimant invited the accident due to his own negligence and that in any event, he had also contributed towards the accident. Contending further that the amount claimed as compensation was highly excessive, the appellant herein/second respondent (insurance company) prayed for the dismissal of the MCOP. It was further contended that the first respondent herein/claimant invited the accident due to his own negligence and that in any event, he had also contributed towards the accident. Contending further that the amount claimed as compensation was highly excessive, the appellant herein/second respondent (insurance company) prayed for the dismissal of the MCOP. In the additional counter affidavit it was contended that the MCOP was not maintainable, since the first respondent herein/claimant already filed a claim under the Workmen's Compensation Act in W.C.No.219/2007 before the Deputy Commissioner of Labour II, Chennai and the said workmen compensation case was dismissed on merits on 26.11.2007 and that hence the claim made under the Motor Vehicles Act on the same cause of action is barred under Section 167 of the Motor Vehicles Act, 1988. 3. The Motor Accident Claims Tribunal conducted an enquiry, in which two witnesses were examined as PWs.1 and 2 and 11 documents were produced and marked as Exs.P1 to P11 on the side of the first respondent herein/claimant, whereas no witness was examined and no document was marked on the side of the appellant herein/insurance company, which figured as the second respondent in the MCOP. 4. The Tribunal, based on the arguments advanced on both sides, considered the evidence and upon such consideration, passed an award directing payment of a sum of Rs.1,21,500/-as compensation together with an interest on the said amount at the rate of 7.5% per annum from the date of claim till realisation holding that the accident took place due to the rash and negligent driving of the above said lorry belonging to the second respondent herein; that the said lorry at that point of time stood insured with the appellant herein and that the accident resulted in grievous injury to the first respondent herein/claimant, which resulted in permanent disability to the extent of 40%. The second respondent herein and the appellant herein were held jointly and severally liable to pay the said amount to the first respondent herein/claimant, as the owner and insurer respectively of the offending vehicle, namely the lorry bearing Regn. No.TNG 7876. 5. As against the said award dated 28.06.2012, the appellant herein/insurer has brought-forth this civil miscellaneous appeal on various grounds set out in the Memorandum of Grounds of Civil Miscellaneous Appeal. No.TNG 7876. 5. As against the said award dated 28.06.2012, the appellant herein/insurer has brought-forth this civil miscellaneous appeal on various grounds set out in the Memorandum of Grounds of Civil Miscellaneous Appeal. The award of the Tribunal is challenged on the following grounds: "i) The first respondent herein/claimant already exhausted his remedy by making a claim for compensation before the Commissioner for Workmen's Compensation under the Employees Compensation Act, 1923 and hence he is barred from making any claim for compensation under the Motor Vehicles Act, 1988, since such a bar has been provided under Section 167 of the Motor Vehicles Act, 1988. ii) The mere fact that the Commissioner for Workmen's Compensation dismissed the claim made under the Employees Compensation Act will not lift the bar provided under Section 167 of the Motor Vehicles Act, which states that the victim or the legal heirs of the victim can make a claim either under the Employees Compensation Act or under the Motor Vehicles Act and not under both. iii) The amount of compensation awarded by the Tribunal is disproportionate to the injury sustained by the first respondent/claimant and is on the higher side." 6. The points that arise for determination in this appeal are: "1) Whether the claim made by the first respondent herein/claimant for compensation against the second respondent herein and the appellant herein under the provisions of the Motor Vehicles Act, 1988 stands barred under Section 167 of the Motor Vehicles Act, 1988, since the first respondent/claimant had chosen to make a claim under the Employees Compensation Act, 1923 in making a claim for compensation against one Selvi and Oriental Insurance Co. Ltd, the owner and insurer of the other vehicle involved in the accident, namely auto-rickshaw bearing Regn. No.TN-05 H-0388, which was driven by the first respondent herein/claimant at the time of the accident? 2) Whether the bar under Section 167 of the Motor Vehicles Act remains even after the dismissal of claim made against the owner and insurer of the auto-rickshaw bearing Regn. No.TN-05 H0388, came to be dismissed by the Commissioner for Workmen's Compensation? 3) Whether the amount awarded by the Tribunal is excessive requiring downward revision? 7. The arguments advanced by Mr.R.Ravichandran, learned counsel for the appellant and by Mr.U.M.Ravichandran, learned counsel appearing for Mr.S.Sankaralingam, counsel on record for the respondent were heard. The materials available on record were also perused. 8. 3) Whether the amount awarded by the Tribunal is excessive requiring downward revision? 7. The arguments advanced by Mr.R.Ravichandran, learned counsel for the appellant and by Mr.U.M.Ravichandran, learned counsel appearing for Mr.S.Sankaralingam, counsel on record for the respondent were heard. The materials available on record were also perused. 8. The first and foremost contention of the learned counsel for the appellant is that, when an injury sustained in a road accident gives rise to claim for compensation under the Employees Compensation Act, 1923 as well as Motor Vehicles Act, 1988, claim can be made under either of the Acts, but not under both, as section 167 of the Motor Vehicles Act, 1988 provides such an election to be made in case of arisal of right under both the Acts to claim compensation and that since the first respondent/claimant had already elected to make a claim under the Employees Compensation Act, 1923, he shall stand debarred from making a claim under the Motor Vehicles Act, 1988. It is his further contention that in case the claim made under the Employees Compensation Act, 1923 was rejected or the amount awarded as compensation under the Act was inadequate, then the remedy available to the victim of the accident/LRs of the victim in case of death is to file an appeal before the High Court under Section 30 of the Employees Compensation Act, 1923 and that simply because the claim made under the Employees Compensation Act was dismissed or the amount awarded therein was not satisfactory, the claimant cannot fall back on the provisions of the Motor Vehicles Act for making a claim under the said Act in contravention of the election made by him in preferring the claim under the Employees Compensation Act, 1923. 9. In support of his contention, the learned counsel for the appellant has relied on the following judgments of the Hon'ble Supreme Court as well as judgments of the High Courts. 1. National Insurance Co. Ltd. vs. Mastan & another reported in 2005(2) TNMAC (SC) 264; 2. Raja vs. Ajay & another reported in 2008 ACJ 670 (High Court of Madhya Pradesh, Indore Bench); 3. New India Assurance Co. Ltd. Vs. Sushila & Others reported in 2011 ACJ 1024 (High Court of Delhi); 4. North West Karnataka Road Transport Corporation vs. Kulsumbi & Others reported in 2012 ACJ 239 (High Court of Karnataka, Circuit Bench at Dharwad); 5. New India Assurance Co. Ltd. Vs. Sushila & Others reported in 2011 ACJ 1024 (High Court of Delhi); 4. North West Karnataka Road Transport Corporation vs. Kulsumbi & Others reported in 2012 ACJ 239 (High Court of Karnataka, Circuit Bench at Dharwad); 5. New India Assurance Co. Ltd. Vs. Smt.Bidami Devi & Others reported in 2010 (1) TNMAC 645 (Rajasthan High Court) 10. In the first of the judgments cited above, namely National Insurance Co. Ltd. Vs. Mastan & another reported in 2005(2) TNMAC (SC) 264, a cleaner of the lorry involved in the accident made a claim for compensation against the owner of the lorry under the Workmen's Compensation Act (now Employees Compensation Act, 1923). The Commissioner for Workmen's Compensation awarded a sum of Rs.2,70,264/-as compensation and an interest of Rs.33,230/-. The insurer of the vehicle was directed to pay the same to the cleaner by virtue of the policy covering the vehicle involved in the accident. As against the order of the Commissioner for Workmen's Compensation awarding compensation, the insurer preferred an appeal before the High Court under Section 30 of the Workmen's Compensation Act, 1923 and the same was dismissed by the High Court holding that the appellant was not entitled to urge any ground therein, which was not admissible to it in terms of the Motor Vehicles Act, 1988. The question that arose before the High Court was whether the restrictions imposed on the defence available to the insurance company in terms of Section 149(2) of the Motor Vehicles Act, 1988 would be applicable to the proceedings under the Workmen's Compensation Act, 1923 (now Employees Compensation Act, 1923). The High Court, relying on a full bench judgment of the same High Court held that in a claim under the Workmen's Compensation Act, the insurance company could only agitate the violation of any of the conditions of the policy to make a substantial question of law and the question of raising defences available in terms of Section 149 (2) of the Motor Vehicles Act did not arise and that the insurer could not prefer an appeal either challenging the quantum of compensation or the award of compensation on any other ground except the grounds available to the insurer under Section 149(2) of the Motor Vehicles Act, 1988. In view of the above said view expressed by the full bench of the High Court, the High Court in the said case, which came up before the Supreme Court held that an appeal filed by the insurer under Section 30 of the Workmen's Compensation Act, 1923 was liable to be dismissed, as insurance company was not entitled to urge any ground of defence, which was not available to it in terms of Section 149 of the Motor Vehicles Act, 1988. While reversing the said finding, disagreeing with the same, the Hon'ble Supreme Court made a passing reference to Section 167 of the Motor Vehicles Act and expressed the view that a claimant, who had pursued a claim under the provisions of the Workmen's Compensation Act, was precluded from falling back on the provisions of the Motor Vehicles Act, 1988 except chapter-X of the Motor Vehicles Act, 1988, which was specifically given overriding effect. The same was not a direct case, in which claim was made under both the statutes. 11. The judgment of a Division Bench of the Madhya Pradesh High Court Raja vs. Ajay & another reported in 2008 ACJ 670 cited by the learned counsel for the appellant does not support the case of the appellant herein and on the other hand, it supports the case of the first respondent herein/claimant. A similar question as the one that has arisen in this case was considered by the Division Bench of the Madhya Pradesh High Court (Indore Bench) and it was held in favour of the claimant. The claimant therein made a claim of compensation under the Employees' Compensation Act for the injuries suffered by him in an accident, while he was travelling in a truck. The Commissioner for Workmen's Compensation held that he was not a workman and hence dismissed the claim application made under the Employees' Compensation Act. Challenging the order of the Commissioner, an appeal came to be filed before the High court under section 30 of the Employees' Compensation Act, 1923. While supporting the dismissal of the claim application made before the Commissioner for Workmen's Compensation, it was also urged before the High Court that the claimant therein having elected to avail the remedy under the Employees' Compensation Act, could not prefer a claim under the Motor Vehicles Act, 1988. While supporting the dismissal of the claim application made before the Commissioner for Workmen's Compensation, it was also urged before the High Court that the claimant therein having elected to avail the remedy under the Employees' Compensation Act, could not prefer a claim under the Motor Vehicles Act, 1988. The Division Bench of the Madhya Pradesh High Court opined that the finding that the claimant was not a workman under the respondent against whom the claim was made, then the claim application before the Commissioner for Workmen's Compensation under the Employees' Compensation Act would be a proceeding without jurisdiction and void ab initio and that hence the order dismissing the claim under the Workmen's Compensation Act would not debar the claimant from taking resort to the other remedy by approaching the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988. The following observation in the concluding paragraph was made by the Division Bench of the Madhya Pradesh High Court:- "In view of the above discussion, we allow these appeals to the extent notwithstanding the order passed by learned Workmen's Compensation Commissioner, the appellants shall be free to approach the Tribunal under the Motor Vehicles Act. With the above liberty to the appellants, these appeals are disposed of with costs." 12. In New India Assurance Co. Ltd. Vs. Sushila & Others reported in 2011 ACJ 1024 decided by the High Court of Delhi, a driver sustained injuries, as he was hit by another vehicle while he was checking his vehicle during the course of his employment. For the injuries sustained by him he made a claim under the Motor Vehicles Act, 1988 but the claim petition was left to be dismissed for non-prosecution. In the meanwhile, the injured died two years after the accident. A claim was made by the legal heirs of the deceased against the employer and his insurer for compensation under the Employees' Compensation Act, 1923 and the Commissioner allowed the compensation only for the injuries sustained by the deceased holding that there was no direct nexus between the injuries sustained in the accident and the cause of death. A claim was made by the legal heirs of the deceased against the employer and his insurer for compensation under the Employees' Compensation Act, 1923 and the Commissioner allowed the compensation only for the injuries sustained by the deceased holding that there was no direct nexus between the injuries sustained in the accident and the cause of death. The High Court held that the claim made before the Commissioner for Workmen's Compensation was perfectly maintainable, since the claim made before the Motor Accident Claims Tribunal was dismissed for default and no compensation was awarded and no decision on merit was rendered in the proceedings before the Motor Accident Claims Tribunal. Hence the said judgment is also not in favour of the appellant and on the other hand, it shall be in favour of the first respondent/claimant. 13. In North West Karnataka Road Transport Corporation vs. Kulsumbi & Others reported in 2012 ACJ 239 (High Court of Karnataka, Circuit Bench at Dharwad), a mechanic employed under the Karnataka State Road Transport Corporation was fatally knocked down by a bus chassis belonging to the said Transport Corporation while he was walking on the extreme side of the road after finishing the work assigned to him. The mother and wife of the deceased were paid a sum of Rs.1,59,800/- as compensation under the Workmen's Compensation Act, 1923. After receiving the same, the mother and wife of the deceased moved a claim before the Motor Accident Claims Tribunal under Section 166 of the Motor Vehicles Act, 1988. As a claim had been made under the Workmen's Compensation Act and the Commissioner had awarded a sum of Rs.1,59,800/- as compensation, it was contended that the claim made under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal was not maintainable, as it was contrary to Section 167 of the Motor Vehicles Act, 1988. As a claim had been made under the Workmen's Compensation Act and the Commissioner had awarded a sum of Rs.1,59,800/- as compensation, it was contended that the claim made under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal was not maintainable, as it was contrary to Section 167 of the Motor Vehicles Act, 1988. The said contention was rejected by the Division Bench of the High Court opining that simply because the rustic ladies with minor children of the deceased filed application for compensation under the Workmen's Compensation Act, 1923 and the Commissioner had passed an order awarding a compensation, the claim made under Section 166 of the Motor Vehicles Act, 1988 could not be held barred and it would result in irreparable loss and injury to the claimants therein, as they would be denied the benefit of getting adequate compensation towards the death of the sole breadwinner of the family and would be driven to be satisfied with the paltry sum awarded by the Commissioner for Workmen's Compensation. The said judgment also does not support the contention of the learned counsel for the appellant and on the other hand, it shall be in favour of the first respondent/claimant. 14. In New India Assurance Co. Ltd. Vs. Smt.Bidami Devi & Others reported in 2010 (1) TNMAC 645 (Jodhpur Bench of the Rajasthan High Court), a driver of a truck, which collided with another vehicle (trailer) died in the accident. The wife and children of the deceased made a claim against the owner, driver and insurer of the other vehicle, namely trailer bearing Regn. No.HR-55 0707, as the tort feasors and the insurer of the tort feasors under the Motor Vehicles Act before the Motor Accident Claims Tribunal, Jodhpur. The Tribunal awarded a sum of Rs.4,60,333/- as compensation and the same was paid by the respondents therein (tort feasors). Thereafter, the wife and children of the deceased preferred a claim before the Commissioner for Workmen's Compensation against the employer of the deceased, namely the owner of the truck bearing Regn. No.RJ19/1G-3189 and the insurer of the said vehicle, which incidentally happened to be the insurance company with which the other vehicle, namely trailer bearing Regn. No.HR-55-0707 had been insured. The Commissioner for Workmen's Compensation allowed their claim and awarded a sum of Rs.3,46,368/- and an interest of Rs.1,93,866/-. No.RJ19/1G-3189 and the insurer of the said vehicle, which incidentally happened to be the insurance company with which the other vehicle, namely trailer bearing Regn. No.HR-55-0707 had been insured. The Commissioner for Workmen's Compensation allowed their claim and awarded a sum of Rs.3,46,368/- and an interest of Rs.1,93,866/-. Such an order awarding compensation came to be passed rejecting the contention of the respondents therein that the award of the Motor Accident Claims Tribunal obtained against the owner, driver and insurer of the other vehicle as tort feasors, would not disentitle the claimants therein from making a claim against the employer of the deceased and the insurer under the provisions of the Workmen's Compensation Act, 1923. As against the order of the Commissioner for Workmen's Compensation, an appeal came to be filed before the High Court on the question of maintainability of the claim made under the Employees' Compensation Act after having obtained an award and received compensation against the tort feasors, namely the owner, driver and insurer of the other vehicle involved in the accident. The High Court held that the claimants having been awarded and having received compensation under the provisions of the Motor Vehicles Act, 1988 for the death of the deceased, were not debarred from making a claim against his employer under the provisions of the Workmen's Compensation Act, 1923 before the Commissioner for Workmen's Compensation. The reasons assigned were that the respondents in the two proceedings were different; that the claim was made against the tort-feasors before the Motor Accident Claims Tribunal under Section 166 of the Motor Vehicles Act, 1988; that the proceedings under the Workmen's Compensation Act, 1923 was against a different person, namely the employer of the deceased and that the insurer was liable in respect of both the claims, as the contracts of insurance were two different contracts. The said judgment also does not support the contention of the learned counsel for the appellant and in fact it is in favour of the first respondent/claimant. 15. On the other hand, the learned counsel for the first respondent/claimant, besides relying on the judgment of the Rajasthan High Court which was discussed above, also relied on a judgment of a Division Bench of the High Court of Kerala, which was scripted by His Lordship Hon’ble Justice K.T.Thomas as he then was in New India Assurance Co. 15. On the other hand, the learned counsel for the first respondent/claimant, besides relying on the judgment of the Rajasthan High Court which was discussed above, also relied on a judgment of a Division Bench of the High Court of Kerala, which was scripted by His Lordship Hon’ble Justice K.T.Thomas as he then was in New India Assurance Co. Ltd vs. Pennamma Kurien reported in 1995 (1) TAC 270 (Ker). In the said judgment, His Lordship held that a claim of compensation made under the Workmen's Compensation Act, 1923 after dismissal of the application made before the Tribunal under the Motor Vehicles Act, 1988 was perfectly maintainable. However, His Lordship held that the amount received under the 'no fault' liability clause under the Motor Vehicles Act, should be given credit to while fixing the amount of compensation payable under the Workmen's Compensation Act, 1923. The said observation was made while interpreting Section 110-AA of the old Act, namely Motor Vehicles Act, 1939 corresponding to Section 167 of the new Act, namely Motor Vehicles Act, 1988. Section 110AA of the old Motor Vehicles Act, 1939 was as follows: "Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death 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 VII-A, claim such compensation under either of those Acts but not under both." The corresponding provision, namely Section 167 in the new Motor Vehicles Act, 1988, reads as follows: "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. " 16. It should be noted that Section 110-AA of the old Act has been re-numbered as Section 167 in the new Motor Vehicles Act, 1988 with necessary change; that chapter VII-A referred to in the old Act has been changed to Chapter X of the new Act. " 16. It should be noted that Section 110-AA of the old Act has been re-numbered as Section 167 in the new Motor Vehicles Act, 1988 with necessary change; that chapter VII-A referred to in the old Act has been changed to Chapter X of the new Act. Chapter VII-A of the old Act dealt with "liability without fault in certain cases" in case of death or permanent disablement resulting in an accident arising out of the use of a motor vehicle or motor vehicles. The owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Chapter X of the new Act corresponds to Chapter VII-A of the old Act. Chapter X contains Sections 140 to 144. Section 140 makes it clear that the compensation payable on the basis of no fault liability as an interim compensation in case of death or permanent disablement has been provided for. Section 141 makes it clear that the right to claim compensation under Section 140 shall be in addition to any other right except the right to claim under the scheme referred to in Section 163-A, which is another provision providing compensation without the necessity to plead and prove fault on the part of the respondent, and it made available to a class of people depending upon the income. However, the very same provision says that when compensation is awarded in accordance with the right on the principle of 'fault', and the compensation payable on the basis of principle of no fault liability under Section 140 of the Motor Vehicles Act, 1988 is less than the amount of compensation calculated based on the principle of fault, the respondent shall be liable to pay the amount mentioned in the 'no fault' liability clause, namely Section 140 of the Motor Vehicles Act, 1988 and the amount if any being the difference between the amount payable on the principle of fault and the principle of no fault liability under Section 140. In case the amount payable under Section 140 is equal to more than the amount payable on principle of fault, the respondent in the claim petition shall not be liable to pay the liability on the principle of fault and the claimant should be content with the amount payable under Section 140. Section 141 provides for disposal of the claim for compensation under Section 140 in the first place when the claim is made under Section 166 of the Motor Vehicles Act, 1988. 17. Section 168 of the Motor Vehicles Act, 1988 provides as follows: 168. Award of the Claims Tribunal. (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be : Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. 18. Sub clause (1) of Section 163-A of the Act states that notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay compensation as indicated in the Second Schedule to the legal heirs of the victim in case of death or to the victim in case of permanent disablement due to accident arising out of the use of motor vehicle. Sub Clause (2) of the section says that in any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement, in respect of which claim has been made, was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or of any other person. 19. Section 163-B says where a person is entitled to claim compensation under Section 140 and 163-A of the Motor Vehicles Act, 1988, he shall file the claim under either of the said sections and not under both. Considering the scope of all the above sections, it has been laid down that the compensation payable under Section 140 of the Motor Vehicles Act, 1988 is interim in nature, whereas the compensation under Section 163-A of the Motor Vehicles Act, 1988 is not interim, but a full and final award of compensation. It has also been made clear that when a person relies on the 'no fault liability' clause as provided under Section 163-A seeking compensation under the structured formula provided under the Second Schedule, he shall not be entitled to make a claim for interim compensation under Section 140 of the Motor Vehicles Act, 1988. 20. In New India Assurance Co. Ltd vs. Pennamma Kurien reported in 1995 (1) TAC 270 (Ker), while interpreting Section 167 of the Motor Vehicles Act, 1988 (corresponding to Section 110AA of the Motor Vehicles Act, 1939), his Lordship Justice K.T.Thomas speaking for the Division Bench, made an observation that one could not have multiplied or double advantage with the same cause of action; that if the person had obtained a relief through a remedy provided in one of the two statutes, he was debarred from availing himself of the remedy provided in the other statute. However, their Lordships went further and stated that, if the person, who filed the application under the one Act was non-suited on any ground, must be taken as a consequence of a finding that he had no valid claim to be made under that Act and that if no valid claim could be made, the necessary corollary was that the claim was not recognisable under law and there would be no bar in making a claim under the other statute. 21. In New India Assurance Co. Ltd. Vs. 21. In New India Assurance Co. Ltd. Vs. Smt.Bidami Devi & Others reported in 2010 (1) TNMAC 645 an extreme proposition came to be made by the Jodhpur Bench of the Rajasthan High Court to the effect that though the legal heirs of the deceased had made a claim under the Motor Vehicles Act, 1988 against the owner and insurer of the offending vehicle, obtained an award and received the amount awarded as compensation, the same would not be a bar for them to make a claim against the employer of the deceased and the insurer of the vehicle owned by the employer of the deceased under the Employees' Compensation Act, 1923. The said view came to be expressed without even considering whether the Motor Accident Claims Tribunal took into consideration the amount of compensation to which the claimants would be entitled under the Employees' Compensation Act and awarded compensation after deducting the same from the compensation calculated under the Motor Vehicles Act. The intention of the Legislature in providing Section 167 of the Motor Vehicles Act, 1988 prescribing an election to the claimant was also not considered in the said case. Similar is the scope of the decision in the case decided by the Delhi High Court in New India Assurance Co. Ltd. Vs. Sushila & Others reported in 2011 ACJ 1024 dealing with the maintainability of the claim made by the legal representatives of the deceased against the employer for the injuries sustained by the employee before this death. In the light of the dismissal of the claim petition made by the employee while he was alive under section 166 of the Motor Vehicles Act was considered and it was decided in favour of the claimants therein. In North West Karnataka Road Transport Corporation vs. Kulsumbi & Others reported in 2012 ACJ 239 (High Court of Karnataka, Circuit Bench at Dharwad), while upholding the maintainability of a claim made under the Motor Vehicles Act, after having opted to claim compensation under the Employees' Compensation Act, the court chose to assess the compensation under Section 166 of the Motor Vehicles Act, 1988, reduced it by the amount awarded by the Commissioner for Workmen’s Compensation and awarded the balance amount as compensation in the MCOP. The said procedure adopted by the Karnataka High Court was aimed at preventing the claimants enjoying a double benefit and at the same time protecting the interest of the victim in case of injury/interest of the LRs of the victim in case of death. 22. The views expressed by the Division Bench of the Karnataka High Court in In North West Karnataka Road Transport Corporation vs. Kulsumbi & Others reported in 2012 ACJ 239 (High Court of Karnataka, Circuit Bench at Dharwad), and the Division Bench of the Kerala High Court in New India Assurance Co. Ltd vs. Pennamma Kurien reported in 1995 (1) TAC 270 (Ker) seem to be based on a proper and purposive interpretation of the provisions of the statute concerned, taking into account the intention of the Legislature in providing the option under Section 167 of the Motor Vehicles Act, 1988. The intention of the Legislature in providing Section 167 of the Motor Vehicles Act, 1988 (corresponding to Section 110AA of the erstwhile Motor Vehicles Act, 1939) was to prevent a single person facing proceedings before more than on forum and made to incur liability to pay compensation in both the proceedings which will be equivalent to a double jeopardy. Besides preventing such double liability, the claimants availing double benefit has also been sought to be prevented by the enactment of the said provision. If a proper interpretation is made, then the view expressed by the Division Bench of the Kerala High Court in New India Assurance Co. Ltd vs. Pennamma Kurien reported in 1995 (1) TAC 270 (Ker), which was also supported by the view of Madhya Pradesh High Court (Indore Bench) in Raja vs. Ajay & another reported in 2008 ACJ 670 , wherein it was held that where a person was non-suited on the ground that the basic foundation to avail the benefit under the Employees' Compensation Act was non-existent, then Section 167 of the Motor Vehicles Act, 1988 would not be a bar for making a claim for compensation under the Motor Vehicles Act. 23. 23. From an analysis of the above said judgments and the reasoning assigned by this court, the principles governing the election provided under Section 167 of the Motor Vehicles Act, 1988 and the corresponding bar can be deduced as follows: 1) In case the accident arises out of the use of the motor vehicle and it results in death or injury, the legal heirs of the deceased or the injured shall be entitled to claim compensation under the provisions of the Motor Vehicles Act, 1988 against the owner, driver and insurer of the offending vehicle on the basis of the tortuous liability which has been made statutory; 2) In case the owner of the offending vehicle happens to be the employer of the deceased or injured, as the case may be, then the legal heirs of the deceased or the injured may make a claim either under the Motor Vehicles Act, 1988 or under the Employees’ Compensation Act, 1923; 3) If the claim is made under the Employees' Compensation Act, 1923 and it is allowed by the Commissioner, then the claimants cannot make a claim under the Motor Vehicles Act, 1988; 4) If the claim made under the Employees' Compensation Act is dismissed holding that the deceased or the injured was not a workman under the alleged employer or that the accident did not arise out of and in the course of the employment of the deceased or injured, then the dismissal of the claim under the Employees' Compensation Act, 1923 will not be a bar for making a claim under the Motor Vehicles Act, 1988; 5) In case the claim is made at the first instance under the Motor Vehicles Act, 1988, there is no possibility of the claim being negatived in toto if the accident had resulted in death or permanent disability attracting the no-fault liability clauses found in the Motor Vehicles Act, 1988. In such cases, the claimants cannot make a claim under the Employees' Compensation Act, 1923 after getting an award in the Motor Accident Claims Tribunal; 6) In case the claim is made under the Motor Vehicles Act, 1988 against the owner of the offending vehicle, who was not the employer of the deceased or injured, as the case may be, and the driver or insurer of the said vehicle, after an award is passed by the Motor Accident Claims Tribunal, a claim against the employer of the deceased or the injured, as the case may be, under the Employees' Compensation Act, 1923, who was not a respondent in the claim will be maintainable, but after ascertaining the amount payable under the Employees' Compensation Act, 1923, the Commissioner shall direct the employer and its insurer to pay only the difference between the amount calculated under the Employees Compensation Act and the amount awarded by the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988, only if the compensation payable under the Employees' Compensation Act exceeds the amount awarded under the Motor Vehicle Act; 7) In case claim is made under the Employees' Compensation Act against the employer and an award is passed and a claim for compensation is made under the Motor Vehicles Act against the owner of the offending vehicle not being the employer of the deceased or injured and against the driver and insurer of the offending vehicle on the basis of tort, then while determining the compensation under the Motor Vehicles Act, the amount obtained as compensation under the Employees' Compensation Act, 1923 shall be taken into account and that should be deducted. After deducting the same, the balance amount alone shall be awarded as compensation in the MCOP before the Motor Accident Claims Tribunal. 24. The above said principles ensure prevention of the claimants enjoying double benefit and the employers being put to double liability. After deducting the same, the balance amount alone shall be awarded as compensation in the MCOP before the Motor Accident Claims Tribunal. 24. The above said principles ensure prevention of the claimants enjoying double benefit and the employers being put to double liability. Applying the above said principles, this court comes to the conclusion that the fact that the first respondent made a claim before the Commissioner for Workmen’s Compensation under the Employees’ Compensation Act, 1923 in W.C.No.219/2007 on the file of the Commissioner No.2, Deputy Commissioner of Labour-II, Teynampet, Chennai and the same was dismissed on the ground that he was not an employee under the owner of the auto-rickshaw driven by the first respondent at the time of accident, would not be a bar for the maintainability of the claim made by him under the Motor Vehicles Act, 1988 against the second respondent and the appellant herein being the owner and insurer of the other vehicle, which is projected as the offending vehicle, namely lorry bearing Regn. No.TNG 7876. The order of the Commissioner for Workmens Compensation marked as Ex.P8 will make it clear that the first respondent was not an employee under the owner of the auto-rickshaw involved in the accident and he was only a person who took the auto-rickshaw for hire and he alone was his master, since his liability towards the owner of the vehicle was only to pay particular amount per day as rent for the auto-rickshaw. The same was the reason why the Commissioner for Workmen’s Compensation held that he was not an employee under owner of auto-rickshaw and that consequently he was not entitled to maintain a claim under the Employees' Compensation Act, 1923. As the claim made under the Employees Compensation Act, 1923 was negatived holding that such a claim was not maintainable, the same will not provide a bar for making a claim under the Motor Vehicles Act, 1988 against the different set of persons, namely the owner and insurer of the offending vehicle, namely lorry bearing Regn. No.TNG 7876. Hence first and second points for determination are answered in favour of the first respondent/claimant and against the appellant herein/insurance company. 25. No.TNG 7876. Hence first and second points for determination are answered in favour of the first respondent/claimant and against the appellant herein/insurance company. 25. In the accident, the first respondent herein/claimant sustained the following injuries: "1) A laceration on the right knee measuring 8 x 6 x 2 cm 2) A lacerated injury on the right eyebrow 3) A lacerated injury over the right jaw 4) Injury on the right side of the head 5) Injury over the right shoulder" X-Ray films reveal fracture of tibia plateau and displacement of right shoulder. The same is evident from Ex.P14-Discharge Summary. The X-Ray taken for assessing the tibia fracture and displacement of right shoulder has been marked as Ex.P9. The receipt for payment of charges for taking X-Ray has been produced and marked as Ex.P10. The Disability Certificate issued by Kr.K.J.Mathiazhagan has been marked as Ex.P11. He found pain and stiffness on the right knee as well as right shoulder joints. He also noticed restriction of movements of the joints and assessed disability at 55% and certified the same to be permanent. The said Medical Officer, who issued the disability certificate, figured as PW2 and gave evidence confirming the assessment of disability made by him. There is nothing on record to discredit his evidence. Though the Medical Officer who came to the court and deposed as PW2 assessed the disability at 55%, the Tribunal, without assigning any valid reasons, substituted its own assessment of disability at 40%. Except stating that the assessment of disability at 55% by PW2 was on the higher side, no other reason has been assigned by the Tribunal. 26. The first respondent herein/claimant was aged 27 years. As an auto-rickshaw driver, he could have earned more amount and the disability with which he is found may be viewed as a disability making him unable to do the work of driving auto-rickshaw. If the multiplier method is adopted, more amount could have been awarded as compensation. On the other hand, the Tribunal chose to award a lumpsum compensation at the rate of Rs.2,000/-per 1% of disability towards the loss of comforts in living and loss of earning capacity. Thus the Tribunal has arrived at the figure Rs.18,000/- as compensation on the said head. A sum of Rs.30,000/- was awarded by the Tribunal towards pain and suffering, which cannot be termed either disproportionate or excessive. Thus the Tribunal has arrived at the figure Rs.18,000/- as compensation on the said head. A sum of Rs.30,000/- was awarded by the Tribunal towards pain and suffering, which cannot be termed either disproportionate or excessive. A sum of Rs.3,000/- towards transportation, Rs.2,000/-towards extra nourishment and Rs.3,000/- towards loss of income during the period of treatment and Rs.6,000/-towards monetary loss during the period of two months after the treatment during which he could have been immobalised, cannot be termed either unreasonable or excessive. A sum of Rs.500/-awarded towards the damages to clothes and personal belongings also is reasonable. Strictly speaking the above said damages assessed by the Tribunal is only on the lower side, which cannot be successfully assailed by the appellant. On the other hand, a proper assessment would have resulted in the award of even a higher amount than what was awarded by the Tribunal as compensation. But the first respondent/injured claimant has not chosen to prefer any appeal or cross objection in respect of the disallowed portion of his claim. Hence, there shall be no question of enhancing the compensation. As the contention of the appellant that the amount awarded is unreasonable and excessive has not been substantiated and on the other hand, this court is of the view that the amount awarded by the Tribunal is only on the lower side, the third point for determination is answered against the appellant and in favour of the respondent/claimant. 27. In view of the answers given to the points for determination, all against the appellant and in favour of the first respondent/claimant, the Civil Miscellaneous Appeal deserves to be dismissed as there is no merit in it. In the result, the civil miscellaneous appeal is dismissed with cost.