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2017 DIGILAW 57 (JK)

Nirmala Devi v. Union of India

2017-02-07

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : MP No. 01/2016 in CIMA No. 12/2006 For the reasons stated in the application, same is allowed. Tribunal to carry out the amendment in the cause title of the award. MP disposed of. CIMA Nos. 11/2006, 12/2006 1. These two appeals have been filed by the legal heirs of the deceased Panna Lal and Devi Singh, employees of GREF Department. The accident in this case happened in the following manner: 2. On 26.05.2002 an Army vehicle (Tipper) bearing No. 98E-66285 of 118 RCC was proceeding from Gool Ghulab Garh. The vehicle was being driven in a rash and negligent manner by its driver, it turned turtle and met with an accident. In the offending vehicle on the date of accident fourteen persons were travelling, out of which eleven persons died and three of them suffered grievous injuries. Since they were working in the Defence Department, therefore, for undertaking the funeral and other charges, meager amount was granted to the widows of deceased Panna Lal and Devi Singh, so as to enable them to perform the last rites of the deceased for which acknowledgment has been issued in presence of village sarpanch and other local residents. Along with the aforesaid acknowledgment, a document has also been annexed, which shows that the legal heirs/ widows of the deceased have agreed not to proceed before the Tribunal. The said document bears the thumb impressions of the widows (Nirmala Devi and Dei Devi). 3. Learned counsel for Union of India relies upon the document dated 28.05.2002, stating that appellants had given an option that the claimants wished to receive the compensation under the provisions of Workmen’s Compensation Act and not under the provisions of the Motor Vehicle Act. A small amount of Rs. 1000/- vide receipt dated 30.05.2002 has been granted to the widows/claimants. From the statement of Shri Suneel Malhotra, learned counsel for the Union of India, it appears that consequent upon the widows/legal heirs accepted to get compensation under the provisions of Workmen’s Compensation Act. Certain amounts were deposited before the Workmen Commissioner under the provisions of Workmen’s Compensation Act. Out of the four widows, two of them accepted the proposal and took the amount in terms of the Workmen Compensation Act. Appellants, namely, Dei Devi and Nirmala Devi, did not receive the amount of Rs. Certain amounts were deposited before the Workmen Commissioner under the provisions of Workmen’s Compensation Act. Out of the four widows, two of them accepted the proposal and took the amount in terms of the Workmen Compensation Act. Appellants, namely, Dei Devi and Nirmala Devi, did not receive the amount of Rs. 1,56,577/- and 1,94,226/- deposited in the office of Assistant Labour Commissioner, Kishtwar under the Workmen’s Compensation Act. Instead the two appellants chose to file claim petitions before the Motor Accident Claims Tribunal seeking compensation stating that two dead persons, namely, Panna Lal and Devi Singh died due to the rash and negligence on the part of the driver of the offending vehicle, i.e. Army Tipper. Hence, they are entitled to just compensation in terms of the Motor Vehicles Act. 4. An interim award dated 08.01.2003 was passed by the Tribunal and an amount of Rs. 50,000/- each was paid to the appellants/widows. Thereupon, the Union of India filed OWP No. 132/2004 pleading that the compensation amount has been deposited under the provision of Workmen’s Compensation Act, 1923. The said amount has not been received by the claimants but they have filed the claim petitions before the Motor Accidents Claims Tribunal, which is not legally maintainable. The plea taken by the Union of India in the aforesaid writ petition reads as follow: “It is, therefore, most respectfully prayed that the writ petition may very kindly be allowed and respondent No. 1 be directed to refund Rs. 1,94,226.00 and 156,577.00 deposited vide Cheque No. G-956824 dated 13 July 2002 respectfully with respondent No. 1 by the petitioner for disbursing the amount in favour of respondents No. 3 and 4 as compensation under Workmen’s Compensation Act, 1923 along with interest @ 18% in favour of the petitioner in the interest of justice. Any other writ, order or direction whatever the Hon’ble Court may deem fits under the circumstances of the case may also be passed in favour of the petitioner.” 5. The Union of India wanted to withdraw the deposit made in view of the claimants proceedings under the Motor Vehicle Act. After hearing counsel for the claimants, Mr. R.P. Sapolia, the writ petition (OWP No. 132/2014) was disposed of vide order 09.05.2016 with the following observations: “In pursuance of order dated 07.11.2008, Assistant Labour Commissioner, Kishtwar was directed to transfer the amount of Rs. 1,94,226/- and Rs. After hearing counsel for the claimants, Mr. R.P. Sapolia, the writ petition (OWP No. 132/2014) was disposed of vide order 09.05.2016 with the following observations: “In pursuance of order dated 07.11.2008, Assistant Labour Commissioner, Kishtwar was directed to transfer the amount of Rs. 1,94,226/- and Rs. 1,56,577/- along with interest if any, deposited before him by Union of India and the said amount has been deposited in the Registry of this Court on 02.06.2009. In terms of the said order the Registrar Judicial was directed to keep the said amount in FDR in J&K Bank, High Court Branch and further its release shall be subject to disposal of the appeal filed by the claimants-respondents No. 3 and 4 herein. This writ petition is accordingly disposed of along with connected MP in light of order dated 07.11.2008.” 6. From the aforesaid facts, it is evident that consequent upon the legal heirs of the deceased, GREF Employees filing the claim petitions before the Motor Accident Claims Tribunal and passing of the interim orders, Union of India has taken a specific stand that the amount deposited in the office of Commissioner under Workmen’s Compensation Act should be refunded to them and this Court accepted the plea and directed that the amount be deposited with the Registrar Judicial of this Court on condition that same shall be released, subject to outcome of the present appeals filed by the two legal heirs. 7. In effect the claimants admittedly are not pursuing the claims in terms of the Workmen’s Compensation Act and they have chosen to contest their claims under the provisions of the Motor Vehicle Act. That the claimants have not received the amount from the office of the Workmen Commissioner under Workmen’s Compensation Act is not disputed. It is also not in dispute that claimants have received the interim award in terms of section 140 of the Motor Vehicle Act, 1988. Therefore, the effective proceedings by the legal heirs is under the Motor Vehicle Act. 8. In order to resolve the present controversy, it relevant to reproduce Section 167 of the Motor Vehicle Act as follows: “167. It is also not in dispute that claimants have received the interim award in terms of section 140 of the Motor Vehicle Act, 1988. Therefore, the effective proceedings by the legal heirs is under the Motor Vehicle Act. 8. In order to resolve the present controversy, it relevant to reproduce Section 167 of the Motor Vehicle Act 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.” 9. In the present case though there is a semblance of proceedings under the provisions of Workmen’s Compensation Act, the claimants have not opted to pursue the same. They have, however, claimed the compensation under the provisions of Motor Vehicle Act. Appellants have taken the interim compensation from the Motor Accident Claims Tribunal vide order dated 08.01.2003. The amount deposited with the office of the Commissioner under the Workmen Commissioner Act has not been claimed by them. On the contrary Union of India has withdrawn the amount from the office of Commissioner under Workmen Compensation Act and got it deposited with the Registry of this Court as per orders of the Court at Union of India instance. Therefore, in terms of section 167 of the Motor Vehicle Act claimants are entitled to pursue the claim before the Claims Tribunal under the provisions of the Motor Vehicle Act. 10. The Tribunal was not correct in dismissing the claimants’ claim petitions by misreading the documents that have not been acted upon. The withdrawal of the amount by other two legal heirs, namely, the widow of Bhoopa Ram and the widow of Bahadur Singh will not in any way affect the rights of appellants/widows of Panna Lal and Devi Singh to proceed under the provision of the Motor Vehicle Act to seek compensation. 11. The withdrawal of the amount by other two legal heirs, namely, the widow of Bhoopa Ram and the widow of Bahadur Singh will not in any way affect the rights of appellants/widows of Panna Lal and Devi Singh to proceed under the provision of the Motor Vehicle Act to seek compensation. 11. Therefore, appeals are allowed and the order of the Tribunal insofar as appellants herein is set aside and Tribunal is directed to adjudicate the claims on merits, preferably within a period of eight weeks from the date of receipt of a copy of this order. Parties to lead their evidence before the Tribunal. The amount deposited in the Registry shall be returned back to the Union of India along with interest. 12. Record of the trial court be sent back forthwith along with a copy of this order.