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2020 DIGILAW 162 (ALL)

New India Assurance Company Ltd. v. Bilkisan

2020-01-14

KAUSHAL JAYENDRA THAKER

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ORDER : Kaushal Jayendra Thaker, J. 1. Heard Sri Rakesh Bahadur, learned counsel for the appellant and perused the record. None appeared on behalf of the respondents. 2. This appeal, at the behest of the New India Assurance Co. Ltd., challenges the judgment and award dated 28.11.2008 passed by Workmen Compensation Commissioner/Assistant Labour Commissioner, Shahjahanpur (hereinafter referred to as 'Commissioner') in Case No. 51 WCA of 2007 awarding a sum of Rs. 3,47,000/- as compensation against the appellant. 3. The judgment in National Insurance Co. Ltd. v. Mastan and another, 2006 (1) TAC 321 (SC) : ( AIR 2006 SC 577 ) will apply in full force is the submission of Sri Rakesh Bahadur, learned counsel for the appellant. 4. The factual scenario of the case is that the claimants filed claim petition on 5.2.2007 before the Motor Accident Claims Tribunal namely thereby electing to avail the remedy available to them under the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act, 1988') instead of Workmen's Compensation Act, 1923 (hereinafter referred to as the 'Act, 1923'). Immediately after six months, they elected to move Workmen Compensation Commissioner for whatever reasons best known to the them. The said fact was disclosed. The claimants did not pursue the remedy under Section 163 or 166 of the Act, 1988. Their evidence was closed. They could have very well withdrawn the said claim petition They were even permitted assistance of an advocate as per the Act, 1988. The Tribunal, in the absence of the claimants, closed the stage of leading evidence. When the stage of evidence arises? Is normally after the issues are framed and the issues are framed when the matter is ripe. Therefore, can it be said that the claim petition before the Tribunal was permitted to be dismissed as the claimants were pursuing another remedy? The answer is 'No'. 5. Before the Tribunal, the claimants did, not lead any evidence and the Tribunal dismissed the claim petition on 8.8.2008 which was much after the claimants filed their petition before the Commissioner. The Commissioner, before hearing the claimants, permitted them to lead evidence and granted benefit vide order dated 28.11.2008. This Court while admitting the appeal considered these facts. 6. The Commissioner has not considered this aspect though urged before it. The doctrine of election under Section 167 of Act, 1988 was always there. The Commissioner, before hearing the claimants, permitted them to lead evidence and granted benefit vide order dated 28.11.2008. This Court while admitting the appeal considered these facts. 6. The Commissioner has not considered this aspect though urged before it. The doctrine of election under Section 167 of Act, 1988 was always there. There are certain exceptions to the said Rule. The paragraphs 28 and 30 of the judgment in Mastan and another ( AIR 2006 SC 577 ) (supra) which are as under will also come in the aid of the counsel for the appellant: "28. 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. 30. Mr. P.R. Ramasesh is not correct in contending that both the Acts should be read together. A party suffering an injury or the dependents of the deceased who has died in course of an accident arising out of use of a motor vehicle may have claims under different statutes. But when cause of action arises under different statutes and the claimant elects the forum under one Act in preference to the other, he cannot be thereafter permitted to raise a contention which is available to him only in the former". 7. The respondent-claimants had chosen to pursue the remedy under the Motor Vehicles Act and thereafter abandoned their right under the said Act. It was not subsequent event which took place that the claimants, after dismissal of their claim petition on non-prosecution, moved to the Commissioner. They had filed the petition before the Commissioner when the Tribunal was seisin with the matter. 8. It goes without saying that the claimants tried to take the advantage of the provisions of the Act. They might have been misguided by the legal advisers and they just abandoned their action under the Motor Vehicles Act, 1988. Had they been twice benefited, recovery should have been allowed. The judgment in Mastan and another ( AIR 2006 SC 577 ) (supra) will apply to the facts of the case. The doctrine of election being part of Rule of Estoppel will give rise to the applicability of the provisions of the Statute. Had they been twice benefited, recovery should have been allowed. The judgment in Mastan and another ( AIR 2006 SC 577 ) (supra) will apply to the facts of the case. The doctrine of election being part of Rule of Estoppel will give rise to the applicability of the provisions of the Statute. The provisions of both the Acts cannot be read together. The paragraph of the aforesaid judgment will apply in full force. The claimant has not been benefited twice. They are rustic person and, therefore, exception to the provisions may not be rebutted. They did not even give any evidence before the Tribunal. The case would have been different had they been given the compensation. 9. In that view of the matter, the appeal on this question requires to be allowed. The amount has been deposited. The claimants have been unrepresented throughout. Unfortunately, while depositing the entire amount, the amount was directed to be invested in Fixed Deposit and they were granted interest. 10. What would be the practical solution now left as the amount has already been deposited? The Tribunal has dismissed the claim petition for default may be after framing of the charges which could not have been done. However, this Court is not concerned with the same. The Insurance Company may recover the said amount from claimants if the amount has been twice paid. Normally, the motor accident claim petition should not be dismissed for default or for want of prosecution. Subject to their right under the law, as far as compensation is concerned, this Court does not think that any interference is required as the claimants would be at least entitled to one set of damages under either of the Acts and which would meet the ends of justice. 11. The record and proceedings be sent back to the Tribunal forthwith. The claimants have suffered agony of losing their sole bread winner. The Tribunal also did not decide the matter rather dismissed it for default. 12. The Insurance Company may proceed as per law and as per Section 174 of the Act, 1988. The Record and proceedings be sent back to the Commissioner who shall disburse the amount.