Allahabad High Court
U.P. State Bridge Corporation Ltd. vs Rati Ram Alias Ram Singh And Others on 15 February, 2000
Equivalent citations: 2000(2)AWC1194, 2001 ALL. L. J. 26, 2001 A I H C 871, 2000 ALL CJ 2 1018, (2000) 3 CIVLJ 147, (2000) 2 TAC 639, (2000) 3 ANDHWR 102, (2000) 2 ALL WC 1194, (2000) 39 ALL LR 302
Author: U.S. Tripathi
Bench: U.S. Tripathi
JUDGMENT U.S. Tripathi, J.
1. The first appeal from order has been preferred against the judgment and order/award dated 13.2.1992 passed by Motor Accident Claims Tribunal/1st Additional District Judge. Bijnor in Motor Accident Claim Case No. 175 of 1988 awarding a sum of Rs. 72,000 with Interest at the rate of Rs. 9% per annum from the date of accident, to the claimants-respondents.
2. The deceased Rajendra Kumar aged about 21 years. S/o opposite party Nos. 1 and 2 and brother of opposite party No. 3 was an employee of appellant State Bridge Corporation. On 2.6.1982. the said Rajendra Kumar was going to the site of Bairage of Madhya Ganga Canal Construction Division, on truck No. U.T.B. 2503 owned by the appellant. The truck was loaded with stones and pebbles. Due to rash and negligent driving by the driver of said truck, it suddenly turned, due to which the deceased fell down from the truck and died on the spot. The claimants filed claim petition on account of death of Rajendra Kumar in motor accident. The claimants claimed compensation amounting to Rs. 1,10,000, as the income of the deceased was Rs. 649 per month and he would have survived upto the age of 75 years.
3. The appellant filed written statement admitting the date, time and place of accident and also Ihe involvement of the truck no. U.T.B. 2503 in the accident. It also admitted the ownership of the above truck. The claim petition was conlested on the ground that the accident did not take place due to rash and negligent driving of the driver of the truck, but the above truck was going towards the bairage when a private truck came from opposite direction with an excessive speed. The road was very narrow and the driver of the truck in question tried his best to avoid the accident, but in doing so. he had to take the truck on the strip of the road and since the truck was loaded with stones had become disbalanced and turned, as a result of which Rajendra Kumar came under the stones and died on the spot. It was further contended that the deceased was not a regular employee of the appellant and he was a daily wages worker. He was getting Rs. 9.20 False per day as his daily wage. The claimants/respondents were not dependents on the income of the deceased. The appellant had already paid a sum of Rs. 11,000 to the respondents by way of compensation under the Workmen's Compensation Act, 1923, to the full and final satisfaction of the claim and therefore, the claim petition was not maintainable.
4. The Tribunal framed necessary Issues and on considering evidence of the parties held that the claimants/respondents were legal representatives of the deceased and were entitled to claim compensation. A person as worker may claim compensation under the Workmen's Compensation Act and may also claim compensation under the Motor Vehicles Act. However. the compensation paid under Workmen's Compensation Act was not paid to the claimants/respondents in full and final satisfaction of the claim. The deceased was travelling in the truck under the authority of the appellant and accident took place due to rash and negligent driving of the driver of the truck No. U.T.B. 2503. It further held that monthly income of the deceased was Rs. 300 and on deducting Rs. 100 as his personal expenses, the dependency of the claimants/respondents was assessed at Rs. 200 per month. Applying the multiplier of 30, the Tribunal held that claimants were entitled to Rs. 72,000 as compensation. With these findings the Tribinal awarded a sum of Rs. 72.000 with 9% interest from the date of accident and also ordered that Rs. 11,000 paid earlier shall be adjusted towards the payment of compensation.
5. Aggrieved with the above award, the appellant has preferred this appeal. The respondents have also filed cross-objection for enhancement of the amount of compensation.
6. Heard Sri. N.C. Rajvanshi, learned counsel for the appellant and Sri Deo Raj, leaned counsel for the respondents.
7. The learned counsel for the appellant raised only one point in this appeal that the claimants/ respondents had also preferred claim under Workmen's Compensation Act and according to Section 167 of the Motor Vehicles Act, no claim petition could be filed under Motor Vehicles Act, On the other hand, it was contended by the learned counsel for the respondents that claimants had not filed any claim under Workmen's Compensation Act, but they were paid a sum of Rs. 11.000 on the own accord of the appellant and therefore, their claim for compensation under Motor Vehicles Act was not barred.
8. The accident in question took place in the year 1982. Section 110AA of the Motor Vehicles Act, 1939 (Old Act) provides as under :
"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 (8 of 1923). the person entitled to compensation (may, without prejudice to the provisions of Chapter VII-A, claim such compensation) under either of those Acts but not under both.
9. Similar provision is contained in Section 167 of Motor Vehicles Act, 1988, which reads as under :
"Notwithstanding anything contained in the Workmen's Compensation Act (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 this Act, but not under both."
10. The wording of above Section shows that "claim" under both Act, i.e. Workmen's Compensation Act and the Motor Vehicles Act is barred and claimants may claim compensation under either of the Act, but not under both. The word "claim" means claim of compensation as provided in the above Acts. i.e.. by moving in the manner provided in the Act before the appropriate authority. Under Section 22 of the Workmen's Compensation Act, the application for compensation may be moved to a Commissions for Workmen's Compensation appointed under Section 20 with the particulars enumerated in clauses (a) to (d) of Section 22(2) of the said Act.
11. Unless the claim is preferred according to the provisions of Workmen's Compensation Act, it cannot be said that the claimants had preferred their claim under the said Act, irrespective of the fact that some amount was paid to them by the appellant on its own accord.
12. It has also been held by a Division Bench case of Gujarat High Court in Harivadan Maneklal Modi and another vs. Chandrasinh Chhatrasinh Parmar and others. AIR 1988 Guj 69, that under Section 110AA of the Motor Vehicles Act (Old Act), the person entitled to compensation "may claim" such compensation under either Workmen Compensation Act or Motor Vehicles Act, but not both. The words "may claim" clearly indicate that the person entitled to compensation must take a conscious decision and opt for compensation under one or the other statutes. Deposit of compensation money by a third party in discharge of his obligation under the Workmen's Compensation Act can never tantamount to the option being exercised by the person entitled to compensation. Hence, receipt of compensation money deposited by the employer in discharge of his obligation under Section 4 of the Workmen's Compensation Act without the appellants having made any claim for compensation under the statute cannot debar the appellants from claiming compensation under the Motor Vehicles Act by virtue of Section 110 AA thereof. Such deposit of compensation money and receipt thereof by the dependants of the deceased in discharge of its obligation under the provisions of the Workmen's Compensation Act can never tantamount to the option being exercised by the person entitled to compensation and it will not debar the respondents from claiming compensation under Motor Vehicles Act.
13. In their written statement filed in the motor accident claim petition, the appellants have no where contended that the claimants have made any claim under Workmen's Compensation Act. It simply mentioned in paragraph No. 28 of the written statement that a sum of Rs. 11,000 was paid as compensation to the widow of the deceased which was accepted by claimants as full and final satisfaction of claim and therefore, the claimants were not entitled to further compensation. No document was produced before the Tribunal showing that the claimants or any one of them made any claim under Workmen's Compensation Act as required by the said Act. However, it is admitted to the parties that a sum of Rs. 11,000 was paid to the widow of the deceased but that payment will not amount to "claim" preferred by the claimants/respondents for compensation under Workmen's Compensation Act. However, the Tribunal had ordered adjustment of the said payment towards the compensation assessed under Motor Vehicles Act. In these circumstances, the claim of the claimants/ respondents for compensation under Motor Vehicles Act was not barred by provisions of Section 110 AA of the Motor Vehicles Act (old) or Section 167 of Motor Vehicles Act, 1988 (new).
14. No other point was pressed by the learned counsel for the appellant.
15. So far the cross-objection of the claimants for enhancement of the compensation is concerned, the claimants had alleged that monthly income of the deceased was Rs. 649. The appellant examined Sri Rajesh Bhatt, Assistant Engineer of the appellant, who stated that deceased was a daily wages worker and was getting Rs. 9.20 paise per day as his wage. The documents filed by the claimants/respondents before the Tribunal also showed that the deceased was a daily wages worker working on the project of the appellant and therefore, the Tribunal assessed his monthly income at Rs. 300 per month. After deducting a sum of Rs. 100 per month as the personal expenses of the deceased, the dependency of the claimants/ respondents was assessed at Rs. 200 per month and applying multiplier of 30 compensation was assessed at Rs. 72,000 and as such, the compensation was rightly assessed according to income and age of the deceased . Therefore, there Is no ground for enhancement of compensation.
16. It view of above discussion, the appeal as well as cross-object ion have no force. The appeal as well as cross-objection are, accordingly, dismissed.
17. The appellants are directed to pay/deposit the amount of compensation awarded by the Tribunal within a period of 3 months from today.