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Rajasthan High Court · body

2022 DIGILAW 1651 (RAJ)

Hanif v. Ramesh Bharti

2022-05-18

ANOOP KUMAR DHAND

body2022
JUDGMENT 1. This misc. appeal under Section 173 of the MV Act, has been directed against the impugned judgment and award dated 08.07.2004 passed by the Court of Motor Accident Claims Tribunal (Addl. District and Sessions Judge) (Fast Track), Beawar (Raj.) (hereinafter referred to as 'the Tribunal') in Claim case No.384/2004, by which the claim petition filed by the claimant- appellant has been rejected on the ground that the injured was working under the employment of respondent No.2 i.e. registered owner of jeep No. RJ-01-P-2196, hence, he is not entitled to get compensation under the provisions of Motor Vehicles Act, but liberty was given to the claimant-appellant to file application under the provisions of Workmen's Compensation Act, 1923. 2. Facts, in brief, of the case are that the injured was Khalasi/cleaner on vehicle No. RJ-01-P-2196. On 15.03.1999, he sustained injuries while repairing the radiator, when driver started the vehicle suddenly, in a rash and negligent manner and due to which jeep started and claimant-appellant sustained injuries in his leg. For the above act, FIR No.116/99 was registered with Police Station Beawar City for the offences punishable under Section 279 and 337 IPC and after investigation charge-sheet submitted against the driver of the jeep for the above-mentioned offences. 3. The injured-claimant submitted the claim petition seeking compensation of Rs.2,20,000/- against the driver/owner and Insurance Company of the vehicle before the Tribunal. The Tribunal issued notices to the respondents. Respondent Nos.1 and 2 refused to receive the summons and respondent No.3 filed its reply and denied the averments made in the claim petition and submitted that excess compensation has been claimed. 4. On the basis of pleadings of the parties, the Tribunal framed four issues and decided issue Nos. 1 to 3 in favour of the claimant. But while deciding issue No.4, the Tribunal rejected the claim petition of the claimant-injured by observing that the injured was working under the employment of owner of the vehicle. Hence, he is not entitled to get compensation under the provisions of Motor Vehicles Act, 1988 (for short 'Act of 1988'). However, liberty was given to him to file claim petition under the provisions of Workmen's Compensation Act, 1923 (for short 'Act of 1923'). 5. Feeling aggrieved by the impugned judgment and award dated 08.07.2004, instant appeal has been preferred. 6. However, liberty was given to him to file claim petition under the provisions of Workmen's Compensation Act, 1923 (for short 'Act of 1923'). 5. Feeling aggrieved by the impugned judgment and award dated 08.07.2004, instant appeal has been preferred. 6. Counsel for the appellant submitted that as per the provisions contained under Section 167 of the Act of 1988, the Tribunal could not have rejected the claim petition because the claimant has both options to file claim petition either under 'the Act of 1988' or under the 'Act of 1923'. In support of his contentions, he has placed reliance on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Prembai Patel & Ors. reported in 2005 ACJ 1323 and the judgment of this Court in the case of Devendra & anr. Vs. Sobhag Bai & Ors. reported in 2007 ACJ 877 . 7. Learned counsel further argued that in view of the statutory provisions contained under Section 167 of the Act of 1988 and in view of settled proposition of law, the matter requires reconsideration. 8. Per contra, learned counsel for the respondent opposed the arguments raised by counsel for the appellant and submitted that no illegality has been committed by the Tribunal while rejecting the claim petition. 9. Counsel for the respondent further submitted that while rejecting the claim petition of the claimant, liberty was granted to him to approach the Commissioner, Workmens Compensation to get claim under the Act of 1923. Hence, no interference is required by this Court. 10. Heard counsel for the parties and perused the record. 11. Before proceeding further, it is necessary to quote Section 167 of the Act of 1988, 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." 12. Bare perusal of Section 167 of the Act of 1988, shows that this provision provides for an option to the claimant to submit claim petition either under the provisions of the Act of 1988 or under the provisions of the Act of 1923. 13. Section 167 of the Act of 1988 contains non obstacle clause provided to such option and it deals with "the doctrine of election". Here in the instant case, the claimant has elected and chosen to file the claim petition under the provisions of Act of 1988. 14. The Hon'ble Apex Court in the case of Prembai Patel (supra), has dealt with the issue, which is involved in the present matter in para No.16 & 17 as under:- "16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly. 17. The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid to the claimants (respondent Nos. 3 to 6 herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award." 15. 3 to 6 herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award." 15. Similarly, this Court in the case of Devendra (supra), has dealt with the issue in Para 5 of the judgment, which reproduce as under:- "Thus, from the perusal of the above provisions, it is clear that if death of or bodily injury to any person gives rise to a claim for compensation under the Act of 1988 as well as under the Workmen's Compensation Act of 1923, then in such circumstances person entitled to compensation may file a claim petition under either of those two Acts." 16. In view of the statutory provisions contained under Section 167 of the Act of 1988, which provides both remedies to the claimant to file claim petition either under the provisions of Act of 1923 or under the provisions of Act of 1988. But, it nowhere restricts to file claim petition under a particular Act. The only restriction under this Section is to avail only one remedy and not both. 17. In view of the discussion made hereinabove and looking to the settled position of law given by the Hon'ble Supreme Court in the case of Prembai Patel (supra), the matter requires reconsideration. 18. Resultantly, the impugned judgment and order dated 08.07.2004 is hereby quashed and set aside. The matter is remitted back to the Tribunal for deciding the claim petition afresh after affording opportunity of hearing to both sides. 19. With the above observations, the appeal stands disposed of. 20. Parties are directed to appear before the Tribunal on 27.05.2022. 21. All pending applications stand disposed of. 22. Record of the Tribunal be sent back forthwith.