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Rajasthan High Court · body

2018 DIGILAW 2118 (RAJ)

Chaturbhuj Nagar v. Kamal wife of Vijendra

2018-10-23

DINESH CHANDRA SOMANI

body2018
ORDER : 1. The non-claimant/appellant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, against the order/award dated 22.03.2012 passed by the Judge, Motor Accident Claims Tribunal, Baran (hereinafter referred as “the Tribunal”) in Miscellaneous Claim Case No.112/2011 titled as Smt. Kamal & Ors. versus Shantilal & Ors, whereby the learned Tribunal has granted compensation of Rs.50,000/- to the claimants under Section 140 of the Motor Vehicles Act, 1988 with direction to the appellant to deposit the amount within two months, failing which it will carry interest @ 7.5% per annum from the date of filing of the claim petition. 2. Facts necessary for disposal of this appeal are that the claimants/respondents No.1 to 4 filed a claim petition before the Tribunal under Section 166 and 140 of the Motor Vehicles Act, 1988 on 09.06.2011 for compensation on account of death of Vijendra allegedly occurred in road accident on 08.08.2005, when the deceased was going from Piplod to Kota, driving a tractor No.RJ-28-R-3871. It is also stated that when the deceased reached near village Mandola, an another tractor bearing No.RJ- 28-R-0510 came with fast speed and dashed against the tractor driven by the deceased Vijendra, resultantly he died due to grievous injuries sustained in the accident. 3. It is brought to the notice of the learned Tribunal that the claimants have earlier filed a claim petition before the Workmen’s Compensation Commissioner, Baran being WC Case No.3/2006, wherein an award of Rs.5,76,120/- was passed alongwith penalty of Rs.50,000/- and interest @ 12% per annum, and argued that the present claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 is not maintainable in the garb of second claim petition. 4. Learned Tribunal decided the application under Section 140 of the Motor Vehicles Act, 1988 and awarded compensation as mentioned above relying upon the judgment of Coordinate Bench of this Court passed in the case of New India Assurance Co.Ltd. versus Smt. Bidami & Ors. reported in 2010 R.A.R. 485 (Raj.) 5. Being dissatisfied with the order passed by the learned Tribunal, the non-claimant/appellant has preferred this appeal. 6. Learned counsel for the appellant submits that the claimants have earlier filed a claim petition under Workmen’s Compensation Act, 1923, which has been decided by the Workmen’s Compensation Commissioner, Baran and an award for compensation of Rs.5,76,120/- alongwith penalty and interest has ? Being dissatisfied with the order passed by the learned Tribunal, the non-claimant/appellant has preferred this appeal. 6. Learned counsel for the appellant submits that the claimants have earlier filed a claim petition under Workmen’s Compensation Act, 1923, which has been decided by the Workmen’s Compensation Commissioner, Baran and an award for compensation of Rs.5,76,120/- alongwith penalty and interest has ? been passed on 27.07.2009, which is not disputed by the claimants. The claimants did not disclose the fact of earlier claim petition with regard to the same accident. The appellant filed copy of the award passed by the Workmen’s Compensation Commissioner, Baran before the learned Tribunal but the learned Tribunal has overlooked this fact. It is also stated that the claimants can choose either of the forums i.e. under Workmen’s Compensation Act, 1923 or under Motor Vehicles Act, 1988 but can not invoke both the forums. 7. In support of his submissions, learned counsel for the appellant gave reference of judgment of Hon’ble Apex Court in the case of National Insurance Co. Ltd. versus Mastan & Anr. reported in (2006) 2 Supreme Court Cases 641. Learned counsel also submits that the judgment passed by the Coordinate Bench of this Court in the case of New India Assurance Company Limited versus Smt. Bidami & Ors (supra). has been set aside by the Apex Court in SLP (C) No.1271/2010 decided on 17.04.2014. The prayer is to accept the appeal and set aside the impugned order and award passed by the learned Tribunal. 8. I have given my anxious consideration to the submissions of learned counsel and perused the material available on record. 9. From perusal of record of the learned Tribunal, it reveals that a claim petition bearing No.WC 3/2006 titled as Smt. Kamal versus Richard was filed by the claimants in the Court of Workmen’s Compensation Commissioner, Baran for compensation on account of death of Vijendra George, occurred in an accident on 03.08.2005 during course of his employment. The claim petition has been accepted by the Workmen’s Compensation Commissioner on 27.02.2009 and an award of Rs.5,76,120/- has ? been passed directing the employer of the deceased and insurer of the vehicle to pay the compensation alongwith the penalty of Rs.50,000/- and interest @ 12% per annum. A copy of the ? judgment passed by the Workmen’s Compensation Commissioner, Baran has been placed on record by the appellant herein. been passed directing the employer of the deceased and insurer of the vehicle to pay the compensation alongwith the penalty of Rs.50,000/- and interest @ 12% per annum. A copy of the ? judgment passed by the Workmen’s Compensation Commissioner, Baran has been placed on record by the appellant herein. From perusal of copy of the judgment and award, it reveals that the claimants have earlier filed a claim petition under the Act of 1923, which has been allowed by Workmen’s Compensation Commissioner, Baran, and the present claim petition has been filed without disclosing the fact of earlier claim petition. 10. For ready reference in this respect, provisions of Section 140 and 167 of the Motor Vehicles Act, 1988 are quoted hereunder:- “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 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 this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under subsection (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in subsection (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.” “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.” 11. In view of the provisions of Section 167 of the Motor Vehicles Act, 1988, the claimant who opted to proceed under Workmen’s Compensation Act, 1923 cannot take recourse to provisions of Motor Vehicles Act, 1988. Section 167 of the Act provides two remedies to the claimants either to invoke remedy under Workmen’s Compensation Act, 1923 or under Motor Vehicles Act, 1988 but Section 144 of the Act of 1988 gives the provisions of Chapter X of the Motor Vehicles Act, 1988 an overriding effect. To deal with the controversy, sub-Section (5) of Section 140 of the Act of 1988 is relevant here. According to proviso to sub-Section (5) of Section 140 of the Act of 1988, amount of compensation, which may be given under any other law, shall be reduced from the amount of compensation payable under Section 140 or under Section 163A of the Act of 1988. In the instant case, the claimants have obtained an award from Workmen’s Compensation Commissioner for compensation of Rs.5,76,120/-, which amount is ? higher than the compensation payable under Section 140 of the Act of 1988. Therefore, overriding effect of Chapter X of the Act of 1988 will have no application to the instant case. 12. Relevant paras of the judgment of the Apex Court in the case of National Insurance Company Ltd. versus Mastan & Anr. (supra) are quoted hereunder:- “22. higher than the compensation payable under Section 140 of the Act of 1988. Therefore, overriding effect of Chapter X of the Act of 1988 will have no application to the instant case. 12. Relevant paras of the judgment of the Apex Court in the case of National Insurance Company Ltd. versus Mastan & Anr. (supra) are quoted hereunder:- “22. Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, 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. Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. 23. The “doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. 27. The first Respondent having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof. 34. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen’s Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen’s Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Section 167 of the Act gives a claimant even under the Workmen’s Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as “no fault” laibility in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 140 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasises what is emphasised by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under Workmen’s Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988 an overriding effect. 35. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen’s Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under the Workmen’s Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen’s Compensation Act by Section 167 of the Motor Vehicles Act. The respondent claimant is not entitled to do so. The High court was in error in holding that he is entitled to do so.” 13. In view of the above, it is clear that Section 167 of the Motor Vehicles Act, 1988 provides for an option to the claimants, where the death of or bodily injury to any person gives rise for a claim for compensation under the Act of 1923 as also under the Act of 1988. The person entitled to claim compensation may claim such compensation under either of those Acts, but not under both. 14. The claimant/respondents have earlier filed a claim petition and chosen forum under the Act of 1923 for obtaining compensation from employer of the deceased, therefore, now they cannot invoke the provisions of the Act of 1988. 15. The judgment passed by the Coordinate Bench of this Court in the case of New India Assurance Co. 14. The claimant/respondents have earlier filed a claim petition and chosen forum under the Act of 1923 for obtaining compensation from employer of the deceased, therefore, now they cannot invoke the provisions of the Act of 1988. 15. The judgment passed by the Coordinate Bench of this Court in the case of New India Assurance Co. Ltd. versus Smt. Bidami & Ors. (supra) has been set aside by the Apex Court vide order dated 17.04.2014 passed in SLP (C) No.1271/2010, therefore the impugned order passed by the learned Tribunal in the light of judgment in Smt. Bidami & ors. (supra), cannot survive. 16. In view of the discussions made above, we allow this appeal and set aside the impugned order dated 22.03.2012 passed by the learned Tribunal.