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2014 DIGILAW 216 (CHH)

Kalin Bai v. S. A. Singh

2014-05-15

PRITINKER DIWAKER

body2014
ORDER Pritinker Diwaker, J. 1. This appeal arises out of the award dated 29.3.2003 passed by Additional Motor Accident Claims Tribunal (for short the "Tribunal") Balod District Durg in Claim Case No. 16/2000 dismissing claim case of the appellant/claimant filed under Section 166 of the Motor Vehicle Act. Facts of the case in brief are that on 3.4.2000 a claim case was filed by the appellant/claimant under Section 166 of the Motor Vehicle Act claiming compensation of Rs. 5,70,000/- inter alia pleading that at the relevant time she was working as attendant in the Bhilai Steel Plant (BSP) hospital, that on 21.4.1999 she along with other persons had gone to the hospital at Dallirajhara for celebrating the hospital day and while returning therefrom in the minibus of BSP, respondent No. 1 namely Dr. S.A. Singh sat on the driver's seat and on account of his rash and negligent driving the vehicle turned turtle as a result of which she sustained number of injuries on her body including chopping off her right hand. 2. Respondents No. 1 namely Dr. S.A. Singh contested the claim on the ground that at the relevant time he was not driving the vehicle. He took a plea that even assuming that he was driving the vehicle he was holding a valid driving licence for the said purpose and that being so the liability would be of respondent No. 3/insurance company to pay compensation to the claimant. Respondent No. 2 (BSP) took a preliminary objection in its written statement that under the Workmen Compensation Act, an amount of Rs. 1,19,851/- was already given to the claimant and therefore the application filed by her under Section 166 of the Motor Vehicle Act is not maintainable. Apart from this, other general grounds were also taken by the BSP. Similarly, respondent No. 3/insurance company also denied its liability on several general grounds including that as the claimant did not file all the relevant documents in support of her claim, it is not liable to satisfy the claim. 3. After recording the evidence of the witnesses, claim of the appellant/claimant has been rejected by the Tribunal holding that she had already received a sum of Rs. 1,19,851/- from the BSP, her claim under Section 166 of the Motor Vehicle Act is not tenable. It is this award which is under challenge in this appeal. 4. 3. After recording the evidence of the witnesses, claim of the appellant/claimant has been rejected by the Tribunal holding that she had already received a sum of Rs. 1,19,851/- from the BSP, her claim under Section 166 of the Motor Vehicle Act is not tenable. It is this award which is under challenge in this appeal. 4. Counsel for the appellant/claimant submits as under: "(i) That the claimant had not filed any application under Section 10 of the Workmen's Compensation Act before the Commissioner, Workmen's Compensation and therefore it cannot be said that she had exercised one of the options among the two available to her under Section 167 of the Motor Vehicle Act. (ii) That respondent No. 2 (BSP) has deposited a sum of Rs. 1,19,851/- of its own before the Commissioner, Workmen's Compensation without any application filed by the claimant and thus the claimant cannot be made to suffer and she has every right to file a separate application under Section 166 of the Motor Vehicle Act. (iv) That even if the claimant has withdrawn the amount deposited by the BSP before the Commissioner. Workmen's Compensation, it will not affect her legal right to file claim under Section 166 of the Motor Vehicle Act. (v) In support of his submissions, reliance is placed on the decision of Madhya Pradesh High Court in the matter of Raja v. Ajay : 2007(2) MPHT 225 (DB), that of this Court in the matter of The Union of India v. Arvind Kr. and others : 2008(2) CGLJ 234 (DB), that of Bombay High Court in the matter of Shantabai Parshuram Mule and others v. Sharda Prasad Singh and others : 1992 ACJ 270 and that of the Apex Court in the matter of Oriental Insurance Company Limited v. Dyamavva and others: (2013) 9 SCC 406 ." 5. Supporting the impugned award it has been argued by the counsel for the respondents in particular BSP and the insurance company as under: "(i) That once the claimant has withdrawn the amount deposited before the Commissioner, Workmen's Compensation, she cannot claim any amount under the Motor Vehicle Act for same cause of action. (ii) That under the principle of estoppel also, the claimant is not entitled to prosecute the case under Section 166 of Motor Vehicle Act." 6. Heard counsel for the parties and perused the material available on record. 7. (ii) That under the principle of estoppel also, the claimant is not entitled to prosecute the case under Section 166 of Motor Vehicle Act." 6. Heard counsel for the parties and perused the material available on record. 7. Before weighing the rival submissions of the counsel for the parties in the light of evidence available on record, this Court feels it proper to take note of the provisions of Section 167 of the Motor Vehicle Act 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." 8. Undisputedly, the claimant has not filed the claim under Section 10 of the Workmen's Compensation Act before the Commissioner Workmen's Compensation and the BSP has deposited an amount of Rs. 1,19,851/- of its own as provided in Section 8 of the Workmen's Compensation Act. BSP suo motu deposited the said amount without any initiation from the appellant claimant and mere Withdrawal of the said amount by the claimant after receiving the notice from the Commissioner Workmen's Compensation it cannot be said that she has exercised her option to seek compensation under Section 10 of the Workmen's Compensation Act. For ready reference Section 10 of the Workmen's Compensation Act reads as under: "10. For ready reference Section 10 of the Workmen's Compensation Act reads as under: "10. Notice and claim--(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death within two years from the date of death: Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable the accident shall be deemed to have occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease: Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the workman to absent himself from work the period of two years shall be counted from the day the workman gives notice of the disablement to his employer: Provided further that if a workman who having been employed in an employment for a continuous period specified under sub-section (2) of section 3 in respect of that employment ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment the accident shall be deemed to have occurred on the day on which the symptoms were first detected: Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim -- (a) if the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer or at any place where the workman at the time of the accident was working under the control of the employer or of any person employed by him and the workman died on such premises or at such place or on any premises belonging to the employer or died without having left the vicinity of the premises or place where the accident occurred, or (b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred: Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given or the claim has not been preferred in due time as provided in this sub-section if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened and shall be served on the employer or upon any one of several employers or upon any person responsible to the employer for the management of any branch of the tread or business in which the injured workman was employed. (3) The State Government may require that any prescribed class of employers shall maintain at these premises at which workmen are employed a notice book in the prescribed form which shall be readily accessible at all reasonable times to any injuries workman employed on the premises and to any person acting bona fide on his behalf. (4) A notice under this section may be served by delivering it at or sending it by registered post addressed to the residence or any office or place of business of the person on whom it is to be served or where a notice book is maintained by entry in the notice-book." 9. A bare reading of this section makes it clear that either the employer can suo motu deposit the amount or it can be awarded on the basis of application filed by the claimant also. In this case no such application was made by the claimant seeking compensation before the Commissioner, Workmen's Compensation and the amount was deposited by the employer of its own. 10. The next question to be decided by this Court is whether acceptance of the amount deposited by the employer would amount to exercise of option by the claimant to seek compensation under the Workmen's Compensation Act. Procedure under Section 8 of the Workmen's Compensation Act is initiated at the behest of employer suo motu and as such it cannot be considered as an exercise of option by the claimant to seek compensation under the provisions of Workmen's Compensation Act. 11. Tribunal while rejecting the claim of the claimant had accepted the submission made on behalf of BSP and Insurance Company that the compensation has been awarded under the Workmen's Compensation Act to the claimant and therefore she is precluded from raising any claim under the Motor Vehicle Act. 12. 11. Tribunal while rejecting the claim of the claimant had accepted the submission made on behalf of BSP and Insurance Company that the compensation has been awarded under the Workmen's Compensation Act to the claimant and therefore she is precluded from raising any claim under the Motor Vehicle Act. 12. According to the respondents, the option was available to the claimant to seek compensation either under the Workmen's Compensation Act or under the Motor Vehicle Act and having exercised their option by withdrawing money she has no right to again file an application under Section 166 of the Motor Vehicle Act. If this proposition put forth by the respondents is upheld, in many cases the employer can defeat the legitimate claim of the claimant, by depositing the amount before the Commissioner, Workmen's Compensation. The law governing award of compensation under the Workmen's Compensation Act and the Motor Vehicle Act is different. In the cases under Workmen's Compensation Act, the compensation is determined on the basis of schedule provided therein whereas in the cases under the Motor Vehicle Act different consideration is provided for the said purpose keeping in view the facts and circumstances of each case. 13. In view of the aforesaid factual and legal position this Court is of the view that the impugned award passed by the Tribunal cannot be sustained. It is accordingly set aside. 14. Matter is remitted to the Court below with a direction to award compensation to the claimant on the basis of evidence adduced by the parties. The Tribunal would be at liberty to adjust the amount of Rs. 1,19,851/- while passing the final award. As the claimant is suffering since the year 2000, the Tribunal to decide the case as expeditiously as possible preferably within three month from the receipt of the record.