Madras High Court
National Insurance Co. Ltd vs Manimegalai on 19 December, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.12.2018
Delivered on : 11.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
C.M.A.Nos.2405 & 3065 of 2018
and
CMP.Nos.18307 & 23222 of 2018
CMA.No.2405 of 2018
National Insurance Co. Ltd.,
2nd floor, No.81-D,
North Car Street,
Tiruchengode 637 211. ... Appellant
Vs
1.Manimegalai
2.Marimuthu
3.P.Krishnamoorthy ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment passed in W.C.No.271 of
2016 dated 19.12.2016 on the file of the learned Commissioner for
Employees Compensation at Coonoor, Nilgiris – District.
http://www.judis.nic.in
2
CMA.No.3065 of 2018
National Insurance Co. Ltd.,
2nd floor, No.81-D,
North Car Street,
Tiruchengode 637 211. ... Appellant
Vs
1.Saraswathy
2.Sabarish
3.Karthick
4.Sivamalai
5.P.Krishnamoorthy ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment passed in W.C.No.859 of
2015 dated 28.09.2016 on the file of the learned Commissioner for
Employees Compensation at Coonoor, Nilgiris – District.
(In both cases)
For Appellant : Mr.J.Chandran
For Respondents : Mr.C.Thangaraju
for R1 & R2 in CMA.2405 of 2018 &
for R1 to R4 in CMA.3065 of 2018
COMMON JUDGMENT
Since the issue to be decided in both the appeals involves one and the same, by consent of both parties, both the appeals are taken up for disposal.
http://www.judis.nic.in 3
2.CMA.No.2405 of 2018 has been filed by the appellant/ Insurance Company challenging the award passed by the Commissioner for Employees Compensation at Coonoor, dated 19.12.2016.
3.CMA.No.3065 of 2018 has been filed by the appellant/Insurance Company challenging the award passed by the Commissioner for Employees Compensation at Coonoor dated 28.09.2016.
4.The facts leading to the filing of the above appeals are in brief as follows:
On 13.06.2014 at about 11.00 p.m. during the course of employment, one Saravanan @ Sivakumar, son of respondents 1 and 2 in CMA.No.2405 of 2018, and one Siddeswaran, husband of 1 st respondent in CMA.No.3065 of 2018, father of respondents 2 and 3 and son of 4th respondent were engaged in removing the puncher tyre of the lorry bearing Registration No.TN-34-F-5626 in which they were working as drivers, at near Rajupalem on the Naidupettai to Gudur Main Road, Andhra Pradesh, an Eicher lorry bearing Registration http://www.judis.nic.in 4 No.AP-03-TA-0274 driven by its driver without following the traffic rules, rashly and negligent manner, hit against both Saravanan @ sivakumar and Siddeswaran and they were succumbed to the injuries sustained by them on account of the accident.
5.For the death of Saravanan @ Sivakumar, his legal heirs/dependants – respondents 1 and 2, who are the parents of Saravanan, filed a claim petition in W.C.No.271 of 2016 before the Commissioner for Employees Compensation at Coonoor and an award of Rs.8,15,400/- had been passed by the Tribunal with interest at the rate of 12% per annum from the 31st day of accident till the date of deposit. The same legal heirs of Saravanan @ Sivakumar earlier, filed MCOP.No.338 of 2014 before the MACT/Subordinate Judge, Bhavani against tortfeasor of the vehicle bearing registration No.AP-03-TA- 0274 and the insurer of the vehicle and the said MCOP.No.334 of 2014 came to be settled before National Lok Adalat on 12.11.2016 against the owner, driver and insurer for a sum of Rs.8,50,000/-. After claiming the compensation before MACT, the same claimants again claimed compensation before the Commissioner for Employees Compensation at Coonoor against his employer and his insurer which is agitated by the insurer in this appeal in CMA.No.2405 of 2018. http://www.judis.nic.in 5
6.In CMA.No.3065 of 2018, the legal heirs of Siddeswaran, mentioned above, who are the wife, children and mother of Siddeswaran, who lost his life in the above accident, mentioned hereinabove, filed W.C.No.859 of 2015 in which an award was passed on 28.09.2016 for a sum of Rs.5,42,240/- with interest at the rate of 12% from the 31st day of accident till the date of deposit. In this case also, earlier, the claimants filed MCOP.No.929 of 2014 before MACT/ Principal District Judge, Namakkal against tortfeasor of the vehicle and the insurer, wherein an award of Rs.5,53,000/- was passed with interest at the rate of 7.5% from the date of petition viz. 19.06.2015 till date of realization. Contending that the very same claimants cannot file a claim petition again before the Commissioner for Employees Compensation at Coonoor the insurer filed CMA.No.3065 of 2018.
7.Learned counsel for the Insurance Company in both appeals contended that the respondents in both the appeals/ the claimants, had claimed two sets of compensation, for one and the same cause of action, one before MACT Tribunal and another before Commissioner for Employees Compensation at Coonoor, which is impermissible in law. Learned counsel drew the attention of this Court to Section 167 of the http://www.judis.nic.in 6 Motor Vehicles Act, wherein option had been provided for claiming compensation. According to the learned counsel for the appellants in both appeals, for one and the same cause of action, no person could be allowed to get compensation on different forum. To substantiate his stand, learned counsel appearing for the Insurance Company, relied upon the judgments (1) judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd., v. Dyamvva and others (2013 1 TNMAC 161 (SC), (2)judgment of High Court of Himachal Pradesh in National Insurance Co. Ltd., v. State of Himachal Pradesh and others (2017 2 TNMAC 576 (HP). Learned counsel further submitted that the fact that the claimants in both cases had already awarded compensation before MACT Tribunal as well was brought to the notice to the Commissioner for Employees Compensation at Coonoor, by way of filing review application, the Tribunal erred in dismissing the review application stating that it has no power. Lerned counsel pointed out that in the case of National Insurance Co. v. State of Himachal Pradesh (2017 2 TNMAC 576), (cited supra) the award of W.C. Commissioner was re- called by filing a review application. Learned counsel further argued that in the case of National Insurance Co. Ltd. v. Mastan and another (2005 (2) TNMAC (SC) 264, the Hon'ble Apex Court of India, it had been categorically stated that under 1923 Act, negligence is not http://www.judis.nic.in 7 required to be proved and under Chapter XI of 1998 Act negligence required to be proved in terms of S.166 of M.V. Act, and when two remedies available for the same relief, aggrieved party has option to elect either of them but not both.
8.Learned counsel for the Insurance company had further argued that in the case of Mastan's case (cited supra), the 1st respondent therein was a cleaner and the 2 nd respondent was an owner of the said lorry, the said lorry was involved in an accident resulting in sufferance of injuries by the 1st respondent therein which led to his disability to the extent of 45% to 50%. The question raised in that case was whether an insurer, while defending an action initiated under the Workmen's Compensation Act 1923 is precluded from raising any defence as envisaged in under Sub-section (2) of Section 149 of the Motor Vehicles Act and the Hon'ble Apex Court, after analyzing the issue in detail, referring to various decisions held that the claimant having elected forum under one Act in preference to other, cannot be permitted to raise contentions available to him only in other.
9.Learned counsel for the Insurance Company further submitted that in Dyamavva case (2013 1 TNMAC 161 (SC) (cited supra) the http://www.judis.nic.in 8 employer suo motu deposited the amount for the death of his employee, recording the statement of the widow, the Workmen's Compensation Commissioner by an order dated 29.04.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow and the daughter. In that case, the procedure under Section 8 initiated at the behest of the employer 'suo motu' cannot be considered as an exercise of option by the dependents/claimants to seek compensation. In that case, claim petition under Section 166 filed on 30.05.2003 and the compensation deposited by employer suo motu on 04.11.2003. It was held that filing of claim petition under Section 166 constitutes option to seek compensation under Motor Vehicles Act. The Motor Accidents Claims Tribunal, Bagalkot, awarded a sum of Rs.11,44,444/- ordered a deduction therefrom of a sum of Rs.3,26,140/- paid to the claimants under the Workmen's Compensation Act, 1923. Aggrieved, he preferred an appeal before the High Court which also confirmed the view of the Tribunal. The Hon'ble Apex Court, concluded holding that the said deduction gives full effect to Section 167 of the Motor Vehicles Act, 1988 inasmuch as, it awards compensation to the respondents/claimants under the enactment based on the option first exercised, and also ensures that the respondents/claimants are not allowed dual benefit under the two enactments. Learned counsel http://www.judis.nic.in 9 pointed out that in the case on hand, the claimants themselves have exercised both their options, which is bad in law. Relying on those judgments, the learned counsel for the Insurance Company submitted that having availed the benefit under MACT, the claimants in these appeals should not be allowed to get the benefit of compensation under the provisions of Workmen's Compensation Act also.
10.Per contra, learned counsel for the claimants/respondents in both appeals submit that the claimants in both appeals, before the Motor Accidents Claims Tribunal they claimed compensation against the driver, owner and the insurer of the tortfeasor vehicle and they claimed compensation against the employer and the insurer of the vehicle where the deceased performed duties, while they died during the course of employment and as such there would be no bar under Section 167 of M.V.Act. Learned counsel for the respondents/claimants relied on the decisions (1) Judgment of Bombay High Court in Inspector General of Police v. Sayed Adam 1998 (79) FLR 68, (2)Judgment of Gujarat High Court in Nasimbanu v. Ramjibhai Bahubhai Ahir 2005 (1) TNMAC (Guj) 461, (3)Judgment in New India Assurance Co. Ltd., v. Bidami 2010 (1) TNMAC 615 (Raj) 645 and (4)Divisional Manager, New India Assurance Co. Ltd., v. Astalingam http://www.judis.nic.in 10 (2018-2-TNMAC 517) to substantiate his claim.
11.Learned counsel for the respondents/claimants in both appeals submit that the option under Section 167 of the M.V. Act is only against the employer, who being a tortfeasor and the above option is not applicable to independent tortfeasor. He had further argued that the option under Section 167 has to be exercised by the claimants/victim or the LRs of the deceased at their willingness and not by employer or any other person. Learned counsel submits that the abovesaid provision is introduced in the Act by the Parliament for the benefit of the victims i.e. Injured or the LRs of the deceased. Learned counsel for the respondents/claimants made an illustration before this Court that a State Transport Corporation Bus met with an accident, hitting against a tree, both the driver, aged 34 years and the conductor aged 34 years got sustained injuries and succumbed to death. In that case, the driver, a wrong doer can have compensation under the provisions of Workmen's Compensation Act only. But whereas the conductor can exercise his option under Section 167 of the Motor Vehicles Act and filed a claim before Motor Vehicles Tribunal or can claim compensation before the Commissioner for Employees Compensation at Coonoor, under the provisions of Employees http://www.judis.nic.in 11 Compensation Act against his employer. The learned counsel pointed out that the LRs of the driver can get a limited amount around Rs.8,00,000/- as per Employees Compensation Act, whereas the LRs of the conductor by invoking Section 167 of M.V. Act can get a sum of Rs.40,00,000/- which is very much beneficial to the victims. Further he submits that if Section 167 is not included in the provision, the LRs of the conductor cannot claim compensation before MACT Tribunal because bar under Section 3(5) and 19 of Employees Compensation Act. That is the reason why the phrase “notwithstanding anything contained in the Workmen's Compensation Act, 1923” i.e. Non obstente clause gives the power to safeguard the litigants to avail more compensation from the Motor Vehicles Act. He further submits that Section 167 is not introduced for benefit of employer or tortfeasor.
12.I have given my careful consideration to the arguments advanced by the learned counsel appearing on either side. I perused all the records including supporting judgments filed by both the counsel.
13.To proceed with further, it would be opt to extract the http://www.judis.nic.in 12 provision of Section 167 of Motor Vehicles Act, which is extracted hereunder:
“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....”
14.At the outset, it can be said that the issue to be decided has to be gone into detail upon analyzing the decisions cited by both counsels. With due respect, I can say that the decision of the Hon'ble Apex Court in Mastan case (cited supra) (2005-2-TNMAC (SC) 264 is not applicable to the case on hand. The decision rendered in Mastan case (cited supra) is on a different footing. In the case on hand, the employer and the wrong doer are different and distinct persons. Learned counsel for the respondent cited the decision in Inspector General of Police/employer on the ground of disability sustained by him due to the accident arising out of and in the course of his employment. An award was passed by Workmen's Commissioner for a sum of Rs.12,096/- as the compensation payable to the applicant and aggrieved by the said award, an appeal was filed. Before the learned http://www.judis.nic.in 13 single Judge, the point was raised as to the maintainability of the application before the Commissioner for Workmen's Compensation on the ground that the claimant had sought his remedy by making a claim before the Accident's Claim Tribunal at Panaji and had obtained an amount of Rs.50,000/- as compensation from the Insurance Company which had insure the owner of the truck and the truck with which the jeep driver by the applicant therein, collided at the relevant time. Before MACT, Panaji against the tortfeasor and against him and when the same was negatived, Letters Patent Appeal was preferred. After going through various judgments it was observed as follows:
“... 13. With great respect we find ourselves unable to agree with the aforesaid decision rendered by the Hon'ble Division Bench of the Allahabad High Court. In our opinion from the reading of the Section, it is clear that it is only in the cases were the tortfeasor and the employer happens to be one and the same person that the workman or the claimant would have the choice and it is only in such a situation that the workman or the claimant has to exercise his option, namely, he can either proceed against his employer before the Accidents Claims Tribunal or he can proceed against the employer under the provisions of the Workmen's Compensation Act. So far as a tortfeasor other than the employer is concerned it is clear that the workman can never proceed against such a tortfeasor under the provisions of the Workmen's Compensation Act.
http://www.judis.nic.in 14 We see absolutely no logic or reason to bar the remedy of the claimant or the workman against his employer or the tortfeasor when in the facts and circumstances of the case he could proceed against the tortfeasor only under the provisions of the Motor Vehicles Act and against the employer only under the provisions of the Workmen's Compensation Act.....” “14.In view of the aforesaid, we are in complete agreement with the views of the learned Judge in the judgment and the order impugned before us. Accordingly, we do not find any merit in this appeal and the Letters Patent Appeal No.24 of 1990 is dismissed with costs.”
15.As pointed out by the learned counsel for the respondents/claimants, the employer and the tortfeasor on the case on hand are different persons. In Nasim Banu case (cited supra) the LRs of the deceased obtained an award of Rs.2,12,000/- with interest at 12% before MACT. Before Workmen's Compensation, an award was passed for Rs.80,664/- with the offering of an undertaking by the claimants confining the claim amount as stated above. When the same came to be questioned, the Hon'ble Division Bench, had gone into the subject and upon analyzing the decision of Smt.Gayatri Devi v. Tani Ram and others AIR 1976 HP 78, wherein at paragraphs 13, 14, 15 stated as follows:
http://www.judis.nic.in 15 Chief Justice Shri R.S.Pathak (as His Lordship then was) speaking for the Division Bench of High Court of Himachal Pradesh in Smt.Gayatri Devi v. Tani Ram and Ors. (AIR 1976 HP 75) said in paragraphs 13, 14 and 15 that:
“13.In Radhabai Bhikaji v. Baluram Daluram, 1970 Acc CJ 403 (M.P.) the Madhya Pradesh High Court held that duplication of proceedings occasioned by a claim instituted under the Workmen's Compensation Act and a claim filed under the Motor Vehicles Act was intended to be avoided and therefore, Section 3(5) of the Workmen's Compensation Act was enacted. With great respect, it seems difficult to accept the reasons which have found favour with that Court. WhenSection 3(5) of the Workmen's Compensation Act was enacted, the Legislature could not have had in mind the Motor Vehicles Act, which was enacted in 1939. Indeed, in 1923, there was no statute which provided for any other tribunal for entertaining claims in respect of such injuries or death. None has been pointed out to us. It seems that when Section 3(5) of the Workmen's Compensation Act was enacted, the Legislature could have had in mind the ordinary courts only as an alternative forum for entertaining a claim for damages. It will be noted in particular that Section 3(5) speaks of a 'suit' and as has been well settled a suit is 'a civil proceeding instituted by the presentation of a plaint'. That was laid down by the Privy Council in Hans Raj Gupta v. Dehna Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 PC 63. A proceeding for compensation made http://www.judis.nic.in 16 under the Workmen's Compensation Act or under the Motor Vehicles Act cannot be confused with a suit. That ingredient of Section 3(5) has apparently not been noticed by the learned Judges in the cases cited before us. Moreover, when the Madhya Pradesh High Court in Radhabai Bhikhaji (supra) spoke of a duplication of proceedings it was apparently not pointed out to the learned Judges that there is no duplication in the true sense, and that the claim under the Workmen's Compensation Act is based on a statutory liability while that under the Motor Vehicles Actrests on liability in tort. In Shardaben v. M. I. Pandya, 1971 Acc CJ 222 = (AIR 1971 Guj 151) the Gujarat High Court identified Claims Tribunal as a court, and that is also the view which appears to have been taken by the Madhya Pradesh High Court in Krishan Gopal v. Dattatraya, 1971 Acc CJ 372 = (AIR 1972 Madh Pra 125) and again in Mangilel v. Union of India, 1973 Acc CJ 352 = (AIR 1974 Madh Pra 159) (FB).
Reliance has been placed by the respondents on Jaswant Rai v. National Transport & General Co. Ltd., 1972 Acc CJ 21 (Punj), but in that case it was not specifically considered that a claim could not lie directly under the Workmen's Compensation Act if a claim had already been made under the Motor Vehicles Act. If the decision in that case can be construed as the respondents would have it, I regret I am unable to agree with the law laid down by it. Following the view taken by the Madhya Pradesh High Court in Radhabai Bhikaji (supra), the Mysore High Court held in Yellubai Torappa Kadam v. Mujawar & Co., 1973 Acc CJ 242 (Mys) http://www.judis.nic.in 17 that a Claims Tribunal under the M. V. Act could be described as a 'court of law' in the sense used in Section 3(5) of the Workmen's Compensation Act, and therefore, a claimant could file a claim either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both. The view proceeds on the assumption that because Section 110-F excludes a civil court from adjudicating on claims falling within the jurisdiction of the Claims Tribunals, it is intended that Claims Tribunals could substitute for civil courts and can therefore be regarded as 'courts of law'. With respect, the assumption is not justified The purpose of Section 110-F of the Motor Vehicles Act has already been discussed above, and in my opinion the exclusion of the civil court does not make a Claims Tribunal a court of law, notwithstanding that the Claims Tribunal exercises some of the powers of a civil court under the Code of Civil Procedure, I may also add that, as was observed by the Madhya Pradesh High Court in Radhabhai Bhikaji (supra), there is no material distinction relevant to the point before us between the expression 'civil court' and the expression 'court of law' used in Section 3(5) of the Workmen's Compensation Act.
14. Having regard to the manner in which the law has developed, to which reference has already been made, I find myself unable to accept the proposition that a claimant, to whom Section 110-AA of the Motor Vehicles Act does not apply, cannot claim compensation both under the Workmen's Compensation Act and the Motor Vehicles Act. http://www.judis.nic.in 18
15. I am of opinion that neither Section 3(5) nor Section 19 of the Workmen's Compensation Actoperates as a bar to the consideration of the claim made by the appellants under the Motor Vehicles Act. That claim was maintainable before the Claims Tribunal, and therefore the present appeal is maintainable. The institution of a claim under the Workmen's Compensation Act does not bar the present appeal.
Holding so, the Division Bench concluded as follows:
“8... Therefore, the result of aforesaid discussion is that First Appeal No.3656 of 1998 – The New India Assurance Company Limited v. Nasimbanu, widow of Sirajuddin Amruddin Kaji and Ors. - is rejected. First Appeal No.407 of 1998 – Nasimbanu, widow of Sirajuddin Amruddin Kazi and Ors. v. Ramjibhai Bachubhai Ahir and Ors. is allowed. The claimants are held entitled for total compensation of Rs.4,07,000/- (enhanced compensation of Rs.1,95,000/-) payable with interest at the rate of 12% p.a. from 6.4.1988 till the date of payment....”
16.The learned counsel for the respondents/claimants referred to the case in New India Assurance Co. Ltd., v. Bidami and ors. (2010 1 TNMAC – 645 (Rsj) wherein the claimants obtained compensation before the MACT and again filed petition seeking compensation under the provisions of Workmen's Compensation Act. In the said case, it had been held that the benefit accruing and flowing from two different enactments and claim having been made against two different parties, employer in one case and tortfeasor other than employer in another http://www.judis.nic.in 19 case, one compensation does not militate or offend against other compensation and claimants are entitled to both compensation. Learned counsel further submitted that the case on hand will squarely apply to the case mentioned above. In the abovesaid case Bidami, (cited supra), the Masthan case, heavily relied on by the learned counsel for the appellants, had been referred to and it had been distinguished. Upon referring to various decisions, the Division Bench had come to the conclusion as under:
“..22. Thus, from the legal position emerging out of aforesaid case laws quoted extensively and on a thoughtful consideration, this Court is of the opinion that the claimants having been awarded and received compensation under the provisions of Motor Vehicles Act, 1988 for the death of Pappu Ram in an accident which took place on 29.7.2003, in January, 2006 were not debarred from making claim against the employer Gopi Ram under the provisions of Workmen's Compensation Act, 1923 before the Workmen Compensation Commissioner. Obviously, not only the respondents in two proceedings are different, namely tortfeasor in claim under Section 166 of the Motor Vehicles Act and employer in the proceedings under the Motor Vehicles Act, 1923, but insurance contracts in question are also two different contracts, of course with the same insurance company, New India Assurance Company. In one case, the same insurance company - appellant herein insured the employer against the claim arising under the http://www.judis.nic.in 20 Workmen's Compensation Act in respect of his employees meeting death or injury during the course of employment and other the owner of the vehicle or tortfeasor insured to pay compensation to third party in case of accident resulting in the death or injury to such third party.
23. The intention of creating bar of estoppel in the form of doctrine of election in Section 167 of the Motor Vehicles Act, 1988 is also only to save same person viz. the employer where such employer happens to be tortfeasor also, being vexed twice over for the same cause of action.
Intention of bar created either under Section 167 of the Motor Vehicles Act, 1988 akin to Section 110-AA of the old Motor Vehicles Act, 1939 or Section 3(5) of the Workmen's Compensation Act, 1923 or Section 53 of the ESI Act, 1948 is the same. Said bar nowhere provides nor it could be possibly intended to provide for any exemption or immunity to other tort-feasor even if he was negligent and liable in tort law to pay damages for causing death or bodily injury to other person or the claimants. Even if the injured or the deceased person as workmen have received compensation under the provisions of Workmen Compensation Act, 1923 or the ESI Act, 1948, there is no question of same cause of compensation i.e. death or injury resulting in double benefit to the claimants if separate compensation under Motor Vehicles Act is also given to such claimants. Such two sets of compensation if provided by two separate legislations against different persons under different contracts of insurance enures to the benefit of the claimants, there is no http://www.judis.nic.in 21 prohibition in law nor it can be said to be amounting to unjust enrichment or unfair and excessive or double compensation to the claimants. The payment of just and fair compensation under the provisions of Motor Vehicles Act as determined by the Tribunal does not impede, curtail, restrict or prohibit in any manner, the compensation payable to the claimants for the same death or injury under the provisions of Workmen's Compensation Act or the ESI Act. The payment of compensation under the one Act at prior point of time or later depending upon the forum the claimants choose to first approach also does not matter. Since the benefits accruing and flowing from two different enactments flow in two different streams and such claim is made against two different parties; employer in one case and tort-feasor other than employer in another case, one compensation does not militate or offend against other compensation. The claimants also are rightly entitled to both the compensations in such cases and one cannot be set off or deducted from the other.
24. The judgments of Punjab & Haryana High Court and Gauhati High Courts cannot be followed in view of contra views expressed by Bombay High Court and Gujarat High Court and ratio of Supreme court decisions cited supra.
25. Therefore, in the considered opinion of this Court, in the present case, doctrine of election under Section 167 of the Motor Vehicles Act, 1988 did not apply qua the claimants and the claimants Smt. Bidami and ors. though having received compensation for death of Pappu Ram http://www.judis.nic.in 22 under the provisions of Motor Vehicles Act, could also be awarded and given compensation under the provisions of Workmen's Compensation Act, 1923 against the employer and his insurer and therefore, there is no error in the impugned award of the Workmen's Compensation Commissioner dtd.31.3.2008. The insurer would naturally pay such compensation under separate contract of insurance with the employer Sh. Gopi Lal and cannot claim any deduction or set off of the compensation already paid to the claimants under the award of the Motor Accident Claims Tribunal, which was paid under a separate contract by the tortfeasor. Had the tortfeasor before MACT and Workman Compensation Commissioner been the same person, namely the employer and owner of Truck which Pappuram, deceased was driving, the claimants, legal representatives of Pappuram would have been debarred from claiming compensation again before the Workman Compensation Commissioner against the same tortfeasor employer from whom they had received compensation under the award of Motor Accident Claims Tribunal, but since such compensation was paid by other tortfeasor, the owner of the other vehicle, the Trailer under MACT award, therefore there is no bar in law for the claimants to claim compensation from the ownder employer of the truck in the forum of Workman Compensation Commissioner under the Workman Compensation Act, 1923.”
17.The learned counsel for the respondents then relied upon the http://www.judis.nic.in 23 recent decision of a Co-ordinate Bench of this Court in Divisional Manager, New India Assurance Co. ltd., v. Astalingam (2018 2 TNMAC
517) wherein the LRs of the deceased filed MCOP and the claim settled before Lok Adalat for Rs.3,75,000/- and thereafter filed claim under W.C. Act and obtained compensation of Rs.2,88,144/-. Aggrieved, the Insurance Company came up before this Court in CMA(MD)No.443 of 2013 in which, after analyzing decisions in Nasimbanu v. Ramjibhai Bachubhai Ahir (cited supra) and New India Assurance Co. Ltd. v. Bidami (cited supra) it had been held as follows:
“....11.As rightly held in Nasimbanu's case relied on by the claimants, where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, he is not debarred from claiming compensation under the Motor Vehicles Act agaisnt the tortfeasor. In Bidami's case relied on by the claimants also, it has been held that since the benefits accruing and flowing from the two different enactments flow in two different streams and such claim is made against different parties; employer in one case and tortfeasor other than employer in another case, one compensation does not militate or offend against other compensation and that the claimants are entitled to both compensation and one cannot be set off or deducted from the other.
12.In the present case on hand, the claimants have rightly filed MCOP case against the owner of Lorry who is http://www.judis.nic.in 24 not the employer and insurer of the Lorry which hit the deceased and obtained compensation through Lok Adalat and also filed WC case against the employer of the deceased and obtained compensation which in my considered opinion does not amount to double compensation or double jeopardy to the employer in the light of the above judgments......”
18.Learned counsel for the appellant Insurance company, heavily relied upon the decision of Mastan case (cited supra). In that case the employer and the tortfeasior are one and the same and with due respect, I take the view that it is not applicable to the facts and circumstances of the case on hand since in the facts of the case on hand, the claimants filed petition under the provisions of Workmen's Compensation Act against employer and his insurer and claimed compensation under the M.V. Act against the driver, owner and insurer of the tortfeasor.
19.Lastly, the learned counsel for the appellants lays legs on the decision of National Insurance Co. Ltd., v. State of Himachal Pradesh and others 2017 2 TNMAC 576 (HP). In that case, suo motu deposit was made by the employer before Workmen's Compensation Act and it was withdrawn subsequent to the filing of the claimants a claim http://www.judis.nic.in 25 petition before the Tribunal. Those facts are not applicable to the case on hand, as stated already, the employer, tortfeasor and the insurance companies are different and distinct with other.
20.As observed earlier, the claimants/respondents have rightly filed MCOP against the owner of the lorry tortfeasor and the insurer of the said vehicle and obtained compensation through Lok Adalat and subsequently filed W.C. Petition against the employer of the deceased, who succumbed to the injuries caused during the course of employment and obtained compensation. In my considered view, the action of the respondents/claimants would not amount to double compensation or double jeopardy to the employer in the light of the observations made in the catena of the decisions mentioned above.
21.Awarding of compensation to the claimants is only for the sake of giving solace to the claimants who lost their breadwinner due to the accident. If their tears are not wiped off by the Courts of law, there will be little meaning in awarding compensation. Applying the principles of doctrine of election and following the decisions cited supra, I am in entire agreement with that the compensation claimed in MCOP claims by the respondents/claimants against lorry tortfeasor and http://www.judis.nic.in 26 W.C. claim against the employer during the course of employment, who is not a tortfeasor, would not amount to double compensation and answered the issue accordingly.
22.In the result:
(a) both the Civil Miscellaneous Appeals in
CMA.Nos.2405 and 3065 of 2018 are dismissed by
confirming the award passed by the learned Commissioner for Employees Compensation, Coonoor;
(b) The respondents/claimants in both the appeals are permitted to withdraw the compensation by filing proper application before the Commissioner for Employees Compensation, Coonoor. No costs. Consequently, connected miscellaneous petitions are closed.
11.03.2019
vs
Index : Yes
Internet : Yes
To
1.The Commissioner for Employees Compensation, Coonoor, Nilgiris District.
2.The Section Officer, V.R. Section, High Court, Madras.
http://www.judis.nic.in 27 M.V.MURALIDARAN, J.
vs Pre-delivery Judgment made in C.M.A.Nos.2405 & 3065 of 2018 and CMP.Nos.18307 & 23222 of 2018 11.03.2019 http://www.judis.nic.in