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Allahabad High Court · body

2017 DIGILAW 2781 (ALL)

Kaisar Bano v. Vikram Chand Verma

2017-11-30

SALIL KUMAR RAI, VIKRAM NATH

body2017
JUDGMENT : Salil Kumar Rai, J. 1. Case taken up in the revised list. Learned counsel for the claimants-appellants as well as learned counsel for Oriental Insurance Company Limited-respondent No. 3 are present. Shri D.K. Srivastava representing respondent No. 2 is not present. Respondent No. 2 is the driver of the vehicle involved in the accident. Respondent No. 1 is the owner of the said vehicle. The vehicle was insured with respondent No. 3. 2. Perused office report dated 17.9.2016. As per office report there is deemed service on respondent No. 1, but no one has put in appearance on behalf of respondent No. 1. 3. In view of the aforesaid, we proceed to hear the present appeal finally with the consent of the learned counsel for the parties present. 4. The present First Appeal From Order has been filed by the claimants-appellants against the judgment and award dated 30.3.2013 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No. 1 (hereinafter referred to as, 'Tribunal') Bhadohi, Gyanpur in Motor Accident Claim Petition No. 32 of 2010. 5. The claim petition was filed by the claimants instituting MACP No. 32 of 2010 alleging that on 6.11.2009 Mohd. Basir, alongwith his son Mohd. Sahjad was going to his workplace by motorcycle No. M.P. 53 MA 5778. While on his way a truck hywa No. U.P. 64E 5388 (hereinafter referred to as, 'offending vehicle'), which was being driven by its driver negligently, hit Mohd. Basir as a consequence of which Mohd. Basir suffered injuries and subsequently died as a result of said injuries. It was stated in the claim petition that Mohd. Basir was employed as Field (Foreman) with J.P. Mineral Limited, Singrauli, Madhya Pradesh. Claimant No. 1 is the wife of the deceased-Mohd. Basir, claimant Nos. 2 to 4 are the sons of Mohd. Basir and claimant No. 5 is the daughter of Mohd. Basir. Claimants No. 2 to 5 were minor at the time of institution of claim petition and were thus represented by their mother and natural guardian. 6. Before the Tribunal the respondent No. 1 did not appear to contest the claim petition, and therefore, the case proceeded ex parte against respondent No 1. Basir. Claimants No. 2 to 5 were minor at the time of institution of claim petition and were thus represented by their mother and natural guardian. 6. Before the Tribunal the respondent No. 1 did not appear to contest the claim petition, and therefore, the case proceeded ex parte against respondent No 1. Respondent No. 2 i.e. the driver of the offending vehicle contested the claim petition by filing his written statement wherein he denied the incident narrated in the claim petition and also denied his liability for payment of compensation on the ground that he had a valid driving license at the time of accident and also because the offending vehicle was insured with the Oriental Insurance Company Limited. For the aforesaid reason, respondent No. 2 stated, that liability to pay compensation for the alleged accident was on the insurance company i.e. respondent No. 3. 7. Respondent No. 3 also contested the claim petition before the Tribunal and filed its written statement denying its liability to pay compensation. In its written statement respondent No. 3 stated that as the claimants had been awarded compensation under the Employees Compensation Act, 1923 (hereinafter referred to as 'Act, 1923') vide order dated 24.7.2012 passed by the Commissioner for Employees Compensation, Sidhi, Madhya Pradesh (hereinafter referred to as 'Commissioner'), therefore, by virtue of Section 167 of Motor Vehicle Act, 1988 (hereinafter referred to as 'Act, 1988), proceedings under the Act, 1988 for the same incident are not maintainable and the claimants are not entitled to get any compensation under the Act, 1988. In its written statement, respondent No. 3 further pleaded that the alleged accident had occurred due to negligence of the deceased-Mohd. Basir and for the said reason also the claimants are not entitled to get any compensation under the Act, 1988. In addition, respondent No. 3 also pleaded in its written statement that at the time of alleged accident the offending vehicle did not have proper fitness certificate, and thus, the insurance company is not liable to pay compensation on behalf of respondent No. 1 i.e. the owner of the offending vehicle. 8. On the pleadings of the parties, the following issues were framed by the Tribunal for adjudication of MACP No. 32 of 2010 :- (i) Whether Mohd. 8. On the pleadings of the parties, the following issues were framed by the Tribunal for adjudication of MACP No. 32 of 2010 :- (i) Whether Mohd. Basir had died as a result of injuries on his head as a consequence of the accident caused due to the rash and negligent driving of the offending vehicle by its driver on 6.11.2009? (ii) Whether the driver of the offending vehicle had a valid driving license on the date of the accident? (iii) Whether on the date of accident the offending vehicle was insured with Oriental Insurance Company Limited-respondent No. 3 and the documents relating to the insurance of the offending vehicle were valid? (iv) Whether the claimants were entitled to any compensation and, if yes, the respondent liable to pay compensation? (v) Whether the claimants had instituted any claim in the Court of Commissioner for Employees Compensation and received the award from the said Court and whether MACP No. 32 of 2010 was not maintainable, if compensation was disbursed to the claimants by the Commissioner for Employees Compensation due to death of Mohd. Basir? 9. Documentary evidence were filed by the parties to prove their respective cases and the claimants-appellants had also produced oral witnesses to prove the accident as stated by them in their claim petition as well as their entitlement to compensation under the Act, 1988. 10. The claimant-appellant No. 1 herself appeared as plaintiff-witness No. 1 while the father-in-law of the deceased i.e. the father of the claimant-appellant No. 1 appeared as plaintiff-witness No. 2 before the Tribunal. Mohd. Sahjad i.e. claimant-respondent No. 3 deposed as plaintiff-witness No. 3 before the Tribunal. 11. Amongst the documentary evidence that were filed by the parties to prove their respective cases, the documents relevant for the purposes of the decision of the present appeal are the statement of one Ashok Kumar Gupta given in Case No. 380 of 2010 (State Vs. Suresh Kumar) instituted under Section 279/304A I.P.C., which was marked as paper No. 14x@21 in the Tribunal in MACP No. 32 of 2010 and order dated 24.7.2012 passed by the Commissioner in Incident No. 30/2010 W.C. Act (Fatal), which was marked as papers No. 52x@1 to 52x@4 in the Tribunal in MACP No. 32 of 2010. 12. Suresh Kumar) instituted under Section 279/304A I.P.C., which was marked as paper No. 14x@21 in the Tribunal in MACP No. 32 of 2010 and order dated 24.7.2012 passed by the Commissioner in Incident No. 30/2010 W.C. Act (Fatal), which was marked as papers No. 52x@1 to 52x@4 in the Tribunal in MACP No. 32 of 2010. 12. On issues No. 2 and 3, the Tribunal held that at the time of accident the driver of the offending vehicle had a valid driving license and on the said date the offending vehicle was insured with Oriental Insurance Company Limited-respondent No. 3. However, issues No. 1, 4 and 5 were decided against the claimants-appellants resulting in dismissal of the claim petition vide judgment dated 30.3.2013. The claim petition has been rejected by the Tribunal on two grounds (i) that the claimants had already been paid compensation of Rs. 3,50,580/-under the Act, 1923 by the employer of the deceased, and therefore, the claim petition was barred under Section 167 of the Act, 1988 and (ii) also on the ground that the claimants-appellants have not been able to prove the accident as stated in the claim petition and as deposed by the witnesses before the Tribunal. 13. Learned counsel for the appellants has argued that from the oral testimony of the appellants-witnesses, it was proved that Mohd. Basir died due to injuries caused by rash and negligent driving of the offending vehicle by its driver and in any case the appellants were entitled to compensation from respondents No. 1 and 3 even on the findings recorded by the Tribunal on issue No. 1 to the effect that Mohd. Basir had died due to injuries caused as a result of coal loaded on the offending vehicle falling on him. It has further been argued by learned counsel for the appellants that the findings recorded by the Tribunal on issues No. 4 and 5 are also erroneous inasmuch as order dated 24.7.2012 passed by the Commissioner under the Act, 1923 was not an order passed on a petition filed by the claimants-appellants, but was an order disbursing the amount of compensation deposited suo motu by the employer of Mohd. Basir under the Act, 1923. Basir under the Act, 1923. On the aforesaid reasoning, learned counsel for the appellants has argued that the findings recorded by the Tribunal against the claimants-appellants are contrary to the oral and documentary evidence on record and are not legally sustainable, and therefore, liable to be set aside and the claim petition filed by the claimants-appellants is liable to be allowed. 14. In response to the aforesaid arguments of the learned counsel for the claimants-appellants, learned counsel for the insurance company has argued that it is evident from the oral testimony of the witnesses produced by the claimants as well as from the documentary evidence on record the claimants-appellants were not able to prove that the death of Mohd. Basir had resulted due to injuries caused as a result of rash and negligent driving of the offending vehicle by its driver, and therefore, claim petition was liable to be rejected and the Tribunal has rightly rejected the same. Further, learned counsel for the respondent No. 3-insurance company has argued that as the claimants-appellants had already been given compensation under the Act, 1923, therefore, claim petition was barred under Section 167 of the Act, 1988 and the Tribunal has rightly dismissed the same as being barred by Section 167 of the Act, 1988. 15. In view of the argument advanced by the learned counsel for the parties, two issues have to be decided in the present appeal. Firstly whether, in MACP No. 32 of 2010, the claimants-appellants were able to prove that Mohd. Basir had died due to injuries caused by rash and negligent driving of the offending vehicle by its driver and whether on the findings of the Tribunal itself on issue No. 1, the claimants-appellants were entitled to compensation under the Act, 1988 and secondly whether claim petition was barred under Section 167 of the Act, 1988 as compensation had been disbursed to the claimants-appellant under the Act, 1923 by order dated 24.7.2012 passed by the Commissioner. It is relevant to point out that learned counsel for respondent No. 3-insurance company has not challenged the findings of the Tribunal recorded on issue No. 1. 16. Heard learned counsel for the parties and perused the judgment passed by the Tribunal as well as records of the case. 17. The claimants-appellants had produced their witnesses to prove the accident as alleged by them in the claim petition. 16. Heard learned counsel for the parties and perused the judgment passed by the Tribunal as well as records of the case. 17. The claimants-appellants had produced their witnesses to prove the accident as alleged by them in the claim petition. However, P.W. 1 and P.W. 2 were not eye-witness to the accident, and therefore, their evidence are not relevant to decide whether the accident had occurred as alleged in the claim petition. Mohd. Sahjad-claimant-respondent No. 3 who is an alleged eye-witness deposed before the Tribunal as plaintiff-witness No. 3 and reiterated the facts relating to the accident as alleged in the claim petition instituting MACP No. 32 of 2010. However, deposition of plaintiff-witness No. 3 has also been disbelieved by the Tribunal. The Tribunal relying on the statement of one Ashok Kumar Gupta given in Case No. 380 of 2010 as well as the statement of Sahjad i.e. (plaintiff-witness No. 3) claimant-appellant No. 3 given in Case No. 380 of 2010, has recorded a finding that deceased-Mohd. Basir died due to injuries caused to him by the coal loaded on the truck which under certain circumstances fell on Mohd. Basir on a turn and not due to negligence of the driver of the vehicle. On the said finding the Tribunal has decided issue No. 1 against the claimants-appellants. We are not entering into the details of the testimony given by the plaintiffs-witnesses to prove that death of Mohd. Basir occurred due to injuries caused by the negligence of the driver of the offending vehicle in view of our opinion given subsequently that the claimants-appellants were entitled to compensation from respondents No. 1 and 3 on the findings recorded by the Tribunal itself on issue No. 1. 18. On the findings of the Tribunal itself on issue No. 1 the claim petition was liable to be allowed inasmuch as the aforesaid findings were sufficient to entitle the claimants-appellants for compensation under the Act, 1988. In this regard certain provisions of Motor Vehicle Act are relevant and are quoted below :- “140. Liability to pay compensation in certain cases on the principle of no fault. In this regard certain provisions of Motor Vehicle Act are relevant and are quoted below :- “140. Liability to pay compensation in certain cases on the principle of no fault. – (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicles 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 this section.” (emphasis added) Even though the aforesaid provisions relate to no fault liability, but even then the phrase emphasised in the aforesaid provision is relevant for the views expressed subsequently. “163-A. Special provisions as to payment of compensation on structured formula basis.-(1) 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 in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. (emphasis added) Explanation. – For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923. (2) 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 the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 165. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 165. Claims Tribunals.-(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claim Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. (emphasis added) Explanation. – For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 [and section 163-A]. 166. Application for compensation. – (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made – (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c)where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be : (emphasis added) Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.” 19. A perusal of the aforesaid provisions especially phrases emphasized show that the liability of the owner or the insurance company to pay compensation arises when there is death or bodily injury including permanent or temporary disablement as well as damage to the property of a third party due to any accident arising out of the use of a motor vehicle. The word 'accident' has not been defined in the Act, 1988. The word 'accident' has not been defined in the Act, 1988. “But in common parlance 'accident' means an unexpected and undesirable event often physically injurious.” 'Accident' according to shorter Oxford Dictionary means an event especially an unforeseen contingency, a disaster. 20. In Rita Devi (Smt.) and Others Vs. New India Assurance Co. Ltd. and Another (2000) 5 SCC Page 113, in paragraph 9, the Hon'ble Supreme Court while dealing with Section 163-A of the Act, 1988 held that, “under Clause (1) and (2) of Section 163A of the Act, 1988 Victim or his heirs are entitled to claim from the owner/Insurance Company a compensation for death or permanent disablement suffered due to accident 'arising out of' the use of the motor vehicle, without having to prove wrongful act or neglect or default of any one. Thus it is clear, if it is established by the claimants that the death or disablement was caused due to an accident 'arising out of' the use of motor vehicle then they will be entitled for payment of compensation.” 21. A perusal of Sections 140, 163A, 165 and 166 of the Act, 1988 show that the liability of the Insurance Company/owner for payment of compensation arises in case of death, bodily injury, disablement or damage to any property of a third party due to an accident 'arising out of the use of motor vehicle'. The liability is not restricted merely to a case where the aforesaid contingencies are caused by the motor vehicle. The definition between 'caused by' and 'arising out of' as well as connotation of the phrase 'arising out of' was considered in Shivaji Dayanu Patil and Another Vs. Vatschala Uttam More (Smt.) (1991) 3 SCC Page 530. In paragraphs 34 to 36 of the aforesaid judgment, the Supreme Court held as under :- “In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. This distinction has been lucidly brought out in the decision of the High Court of Australia in Government Insurance Office of N. S.W. v. R.J. Green's, case wherein Lord Barwick, CJ has stated: "Bearing in mind the general purpose of the Act I think the expression 'arising out of' must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words 'caused by'. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression 'arise out of' as used in the Act and in the policy." In the same case, Windeyer, J. has observed as under: "The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence." This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.” (emphasis added) 22. This construction of the expression "arising out of the use of a motor vehicle" in section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment.” (emphasis added) 22. In the aforesaid case the Hon'ble Supreme Court while dealing with Section 92-A of the Act, 1988 which used the phrase 'arising out of the use of motor vehicle' in para 21 also referred to the opinion as recorded in Elliott Vs. Grey (1959) 3 All ER 733 that the word 'use' has a wider connotation and means 'to have the advantage of a vehicle as a means of transport including for any period or time between the journeys'. 23. It is obvious that coal loaded on the offending vehicle in the present case was an advantage being taken of the offending vehicle as means of transport and the coal falling on Mohd. Basir injuring him was an accident as it was an unforeseen contingency and unexpected. Thus, when the coal loaded on the offending vehicle fell on Mohd. Basir, the incident was an accident arising out of the use of motor vehicle making the respondents No. 1 and 3 i.e. owner and insurance company liable to pay compensation to the claimants. We are not able to agree with the reasoning of the Tribunal that the claimants-appellants are not entitled to compensation under the Act, 1988, as the death of Mohd. Basir had occurred due to the fact that the coal loaded on the offending vehicle fell on him and not due to any rash or negligent driving of the offending vehicle by its driver. In view of the aforesaid, the Tribunal clearly erred in law in rejecting the claim petition of the appellants by deciding against them on issue No. 1. For the aforesaid reason findings of the Tribunal on issue No. 1, are set aside and it is held that the claimants-appellants were entitled to compensation. 24. The other reasons given by the Tribunal to dismiss MACP No. 32 of 2010 is that the claimants-appellants had already been paid compensation of Rs. 3,50,580/-under the Act, 1923 by the employer of the deceased, and therefore, the claim petition was barred under Section 167 of Act, 1988. We are afraid, we cannot agree with the reasoning of the Tribunal. The other reasons given by the Tribunal to dismiss MACP No. 32 of 2010 is that the claimants-appellants had already been paid compensation of Rs. 3,50,580/-under the Act, 1923 by the employer of the deceased, and therefore, the claim petition was barred under Section 167 of Act, 1988. We are afraid, we cannot agree with the reasoning of the Tribunal. Section 167 of Act, 1988 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.” (emphasis added) 25. In view of the aforesaid provision, the question that had to be decided by the Tribunal and now by this Court in the present appeal is whether the claimants-appellants had 'claimed' any compensation under the Act, 1923. Before deciding the said question it is necessary to refer to certain provisions of Act, 1923:- “3. Employer's liability for compensation.-(1) If personal injury is caused to a [employee] by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:” Section 4 of Act, 1923 relates to the amount of compensation, and therefore, is not relevant for the purpose of the present case. However, Section 4(1)(a) of Act, 1988 provides for compensation, where death results from the injury caused by accident arising out of and in the course of employment. The said provision is being referred merely to show that the employer is liable to pay compensation for the death of his employee caused due to injuries as a result of accident arising out of and in the course of the employment. 26. Section 4-A of Act, 1923 is reproduced below as the same is relevant to decide the issue as stated above :- “4-A. Compensation to be paid when due and penalty for default.- (1) Compensation under section 4 shall be paid as soon as it falls due. 26. Section 4-A of Act, 1923 is reproduced below as the same is relevant to decide the issue as stated above :- “4-A. Compensation to be paid when due and penalty for default.- (1) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the [employee], as the case may be, without prejudice to the right of the [employee] to make any further claim. [(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. Explanation-For the purposes of this sub-section, scheduled bank means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). [(3A) The interest and the penalty payable under subsection (3) shall be paid to the 44 [employee] or his dependent, as the case may be.” 27. Perusal of aforesaid section shows that the employer is liable to pay compensation under Section 4 as soon as the same falls due and the same has to be deposited before the Commissioner and on the failure of the employer to so deposit, additional liabilities have been imposed on the employer. 28. Perusal of aforesaid section shows that the employer is liable to pay compensation under Section 4 as soon as the same falls due and the same has to be deposited before the Commissioner and on the failure of the employer to so deposit, additional liabilities have been imposed on the employer. 28. As to the method of payment of compensation by the employer under the Act, 1923 Section 8 clearly provides that the said compensation shall be paid only by depositing the same with the Commissioner and no payment of a lump sum as compensation to a woman or a person under a legal disability made directly by an employer would be a payment of compensation. Section 8 of Act, 1923 is reproduced as under :- “8. Distribution of compensation.-(1) No payment of compensation in respect of a [employee] whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation: [Provided that, in the case of a deceased [employee], an employer may make to any dependent advances on account of compensation [of an amount equal to three months' wages of such [employee] and so much of such amount] as does not exceed the compensation payable to that dependent shall be deducted by the Commissioner from such compensation and repaid to the employer.] (2...) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto. (3...) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.] (4) On the deposit of any money under sub-section (1), [as compensation in respect of a deceased [employee]] the Commissioner [***] shall, if he thinks necessary, cause notice to be published or to be served on each dependent in such manner as he thinks fit, calling upon the dependents to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependent exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made. [(5) Compensation deposited in respect of a deceased [employee] shall, subject to any deduction made under sub-section (4), be apportioned among the dependents of the deceased [employee] or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependent. (6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto. (7...) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependent of the 65 [employee] or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the [employee]. (8...) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependent or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependent is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case: Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependent of any sum already paid to him.” 29. A perusal of aforesaid Provision shows that on the death of his employee due to injuries caused by accident arising out of and in the course of his employment, the employer has to deposit the compensation before the concerned Commissioner. It would be a suo motu deposit. On the aforesaid deposit the Commissioner is enjoined to issue notice to the dependents and only after due inquiry distributes the compensation to the dependents. Under Section 8(5) of the Act, 1923, the Commissioner has the power to apportion the compensation amongst several dependents of the deceased or may allot the compensation to anyone dependent. The only inquiry to be conducted by the Commissioner under Section 8(4) of the Act, 1923 is regarding the question whether the claimants-appellants before the Commissioner, who appeared in pursuance to the notice issued by him are the dependents of the deceased or not and whether the compensation has to be apportioned amongst several dependents under Section 8(5) of the Act, 1923 or is to be allotted to anyone dependent or managed and invested under Sections 8(7) and 8(8) of the Act, 1923. The aforesaid inquiry can be conducted only in presence of the dependents for which notices are required to be issued under Section 8(4) of the Act, 1923. The aforesaid inquiry can be conducted only in presence of the dependents for which notices are required to be issued under Section 8(4) of the Act, 1923. Thus, deposits of compensation by the employer under Section 8 of the Act, 1923 is not a result of any 'claim' made by the dependents of the deceased. 30. Section 10 of the Act, 1923 relates to case where the dependents of the deceased employee 'claim' compensation from the employer of the deceased. Section 10(1) of the Act, 1923 is reproduced 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 [employee] 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 [employee] to absent himself from work, the period of two years shall be counted from the day the [employee] gives notice of the disablement to his employer: Provided further that if [an employee] 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].” 31. A reading of the aforesaid provision shows that the dependents of the deceased employee has to serve a notice of the accident to the employer of the deceased before the claim petition is instituted by them under the Act, 1923 claiming compensation from the employer. It is only when the dependents of the deceased employee institute a case under Section 10 of the Act, 1923 that they can be said to 'claim' compensation under the Act, 1923. The aforesaid view is also supported by the judgment of the Hon'ble Supreme Court delivered in Oriental Insurance Company Limited Vs. Dyamavva and others 2013 ACJ 709 . Paragraph 12 of the aforesaid judgment reads as under :- "The issue to be determined by us is, whether the acceptance of the aforesaid compensation would amount to the claimants having exercised their option, to seek compensation under the Workmen's Compensation Act, 1923. The procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer "suo motu", and as such, in our view cannot be considered as an exercise of option by the defendants/claimants to seek compensation under the provisions of the Workmen's Compensation Act, 1923. The position would have been otherwise, if the dependents had raised a claim for compensation under Section 10 of the Workmen's Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependents at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmen's Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmen's compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents-claimants having never exercised their option to seek compensation under Section 10 of the Workmen's Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988." 32. In the above view of the matter, it can be stated that the respondents-claimants having never exercised their option to seek compensation under Section 10 of the Workmen's Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988." 32. The question to be decided is whether order dated 24.7.2012 passed by the Commissioner, which was marked as papers No. 52x@1 to 52x@4 in the Tribunal in MACP No. 32 of 2010 is an order passed under Section 8 of the Act, 1923 consequent to a suo motu deposit by the employer or is a result of case instituted by the claimants-appellants under Section 10 of Act, 1923. 33. It was argued by the learned counsel for respondent No. 3 that it is evident from the array of the parties as recorded in the order dated 24.7.2012 passed by the Commissioner, that the said order is a result of a case instituted by the claimants-appellants as dependents of the deceased. 34. We have perused the record. The array of the parties recorded in the order dated 24.7.2012 passed by the Commissioner does show that the case has been titled as Smt. Keshar Bano Vs. Jai Prakash Associates. But the aforesaid fact is not sufficient to decide whether the order of the Commissioner is a result of a case instituted by the dependents of the deceased under Section 10 of the Act, 1923 or is merely an order distributing and apportioning the compensation suo motu deposited by the employer of the deceased under Section 8 of the Act, 1923. 35. A perusal of the aforesaid order of the Commissioner shows that no case number as such has been given in the order and no case has been registered but the said order has been passed in Incident No. 30 of 2010 (W.C. Act (Fatal). It also shows that notices were issued to the dependents in pursuance to a deposit of Rs. 3,50,580/-made by the employer and expenses for the said notice had also been deducted from the compensation paid to the dependents of the deceased. A perusal of the contents of the order also shows that on receipt of said notice claimants-appellants had appeared before the Commissioner and an affidavit was filed by the father-in-law of Mohd. Basir giving the names of the dependents of the deceased-Mohd. Basir. A perusal of the contents of the order also shows that on receipt of said notice claimants-appellants had appeared before the Commissioner and an affidavit was filed by the father-in-law of Mohd. Basir giving the names of the dependents of the deceased-Mohd. Basir. A reading of the order of the Commissioner clearly shows that the said order is merely an inquiry conducted by the Commissioner under Section 8(4) and 8(5) of the Act, 1923 and is not an order under Section 10 of the Act, 1923 in any case instituted by the dependents of the deceased. The array of parties as descried in the title of the case is not relevant to decide whether the order is an order passed under Section 8 or 10 of the Act, 1923. Thus, it is clear that order dated 24.7.2012 is not an order passed on any claim made by the dependents of the deceased under Section 10 of the Act, 1923. In the aforesaid circumstances the claimants-appellants could not have been denied their entitlement to claim compensation from respondents No. 1 and 3 under the Act, 1988 because of the order dated 24.7.2012 passed by the Commissioner. 36. There is another fact which is to be noted while considering the correctness of the judgment of the Tribunal on issues No. 4 and 5. The claim petition under the Act, 1988 was filed by the claimants-appellants on 19.5.2010, while the deposit by the employer of the deceased was made on 14.9.2010 and on the said deposit notices were issued to the dependent i.e. claimant-appellant No. 1 on 14.9.2010 itself. The aforesaid fact would be evident from the notices issued by Commissioner (annexed as annexure R.A. 1 to the rejoinder affidavit) as well as from the order of the Commissioner itself. As MACP No. 32 of 2010 was instituted by the claimants-appellants before the institution of any alleged 'case' before the Commissioner under the Act, 1923, therefore, the claim petition under the Act, 1988 was the first claim for compensation raised by the claimants-appellants and the same was filed before any case was allegedly registered under the Act, 1923. The aforesaid fact also shows that the claimants-appellants had exercised their option to seek compensation under the Act, 1988, and therefore, bar of Section 167 of the Act, 1988 is not applicable in the present case. 37. The aforesaid fact also shows that the claimants-appellants had exercised their option to seek compensation under the Act, 1988, and therefore, bar of Section 167 of the Act, 1988 is not applicable in the present case. 37. For the aforesaid reason, we hold that the judgment of the Tribunal dismissing the claim petition filed by the claimants-appellants on the ground that the same was barred by Section 167 of the Act, 1988 is erroneous and is liable to be set aside. The findings on issues No. 4 and 5 given by the Tribunal in MACP No. 32 of 2010 are hereby set aside and it is held that MACP No. 32 of 2010 was not barred under Section 167 of the Act, 1988. 38. On the aforesaid reasoning the present appeal is allowed and the judgment and award dated 30.3.2013 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No. 1, Bhadohi, Gyanpur in Motor Accident Claim Petition No. 32 of 2010 is hereby set aside. Issues No. 2 and 3 were decided in favour of the owner-respondent No. 3. We have already held that the findings and opinion of the Tribunal on issues No. 1, 4 and 5 were erroneous and the same have been set aside by holding that MACP No. 32 of 2010 was not barred under Section 167 of the Act, 1988 and on the findings of the Tribunal itself on issue No. 1 the claimants-appellants were entitled to compensation from respondent Nos. 1 and 3 i.e. the owner of the vehicle and the insurance company as the death of Mohd. Basir was a result of injuries caused to him in an accident arising out of the use of motor vehicle of respondent No. 1, i.e. offending vehicle U.P. 64E 5388. The only question that remains to be decided is the amount of compensation to be paid to the claimants-appellants. The said question depends on the proved income of the deceased at the time of his death or his notional income to be assessed by the Tribunal and the multiplier to be applied depending on the age of the deceased. Further, other heads under which compensation may be granted to the claimants-appellants are also to be decided by the Tribunal. The matter is, therefore, remanded back to the Tribunal to decide the quantum of compensation payable to the claimants-appellants in accordance with law. Further, other heads under which compensation may be granted to the claimants-appellants are also to be decided by the Tribunal. The matter is, therefore, remanded back to the Tribunal to decide the quantum of compensation payable to the claimants-appellants in accordance with law. The Tribunal shall make every endeavour to decide the claim petition within a period of six months from the date a certified copy of this judgment is produced before it. The office is directed to send back the records of the case to the concerned Tribunal immediately. 39. With the aforesaid direction, the appeal is allowed. However, parties shall bear their own costs.