Bombay High Court
Smt. Abedabi Mohammed Mustaq And Others vs Femida Bano Sheikh Israil And Others on 1 August, 2017
fa912.16.J.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.912 OF 2016
1] Smt. Abedabi Mohammed Mustaq,
Aged about 77 years,
Occ: Housewife.
2] Badrnnisa Mohammed Khalil,
Aged about 41 years,
Occ: Housewife.
3] Mohammed Shakir Mohamed Khalil,
Aged about 22 years,
Occ: Nothing.
4] Mohammed Samir Mohamed Khalil,
Aged about 21 years,
Occ: Nothing.
5] Samrin Mohamed Khalil,
Aged about 19 years,
Occ: Nothing.
6] Amrin Mohamed Khalil,
Aged about 17 years,
Occ: Nothing (Minor).
7] Mohammed Soheb Mohamed Khalil,
Aged about 16 years,
Occ: Nothing.
Appellants Nos.6 and 7 are minors
represented by their natural guardian
mother appellant No.2
All R/o Kalamb Chowk, Yavatmal,
Tahsil & District Yavatmal. ....... APPELLANTS
ORIGINAL CLAIMANTS
...V E R S U S...
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fa912.16.J.doc 2
1] Femida Begum Sheikh Israil,
Aged about 38 years,
Occ: Don't know.
2] Sumaiya Firdous Sheikh Israil,
Aged about 16 years,
Occ: Don't know.
3] Mubassera Firdous Sheikh Israil,
Aged about 14 years,
Occ: Don't know.
4] Sheikh Saad Sheikh Israil,
Aged about 13 years,
Occ: Don't know.
5] Shaikla Bano Sheikh Ismail
Aged about 68 years,
Occ: Don't know.
6] Sheikh Ismail Bhai,
Aged about 70 years,
Occ: Don't know.
Respondent Nos.2 to 4 minor
represented through natural guardian
mother respondent No.1.
All R/o Shinde Nagar, Yavatmal,
Tahsil & District Yavatmal.
7] The New India Assurance Co. Ltd.,
through its Branch Manager, Office at
Yerawar Building, Yavatmal,
Tahsil & District Yavatmal. ....... RESPONDENTS
ORIGINAL OPPPONENTS
-------------------------------------------------------------------------------------------
Shri Abdul Subhan, Advocate for Appellants.
Shri A.C. Chaphale, Advocate for Respondent No.7.
-------------------------------------------------------------------------------------------
CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE: st
1 AUGUST, 2017.
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fa912.16.J.doc 3
ORAL JUDGMENT
1] A very peculiar question of law raised in this appeal is; if a petition filed under section 166 of the Motor Vehicles Act is dismissed on the ground that it was not maintainable as the accident has occurred due to the rash and negligent driving of the deceased himself, whether the subsequent petition under section 22 of the Workmen's Compensation Act, 1923 is maintainable? 2] For answering this question of law, one has to consider the facts of this appeal, which is filed under section 30 of the Employee's Compensation Act, 1923 challenging the judgment and order dated 23.07.2015 passed by the Commissioner, Workmen's Compensation, Yavatmal thereby rejecting the claim petition of the appellant herein, filed under section 22 of the said Act.
3] Brief facts of the appeal are to the effect that, appellant No.1 is the mother, appellant No.2 is the widow and appellant Nos.3 to 7 are the children of deceased Mohd. Khalil, who was working as a Driver on the Truck bearing MH-29 6337 and belonging to one Sheikh Israil. Respondent Nos.1 to 6 are the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 4 legal heirs of Sheikh Israil. The said truck was validly insured with respondent No.7.
4] On 23.08.2002 while deceased Mohd. Khalil was proceeding on the said truck towards Yavatmal, at about 04:00 a.m. when the truck reached near Imampur village on National Highway No.7, due to focus of the light of other vehicles coming from opposite direction, deceased could not see the road properly. As a result, he lost control over the truck and it resulted in turtling and over turning of the truck. Deceased sustained the grievous injuries in the said accident and died on the spot. 5] As the appellants lost their only source of income and suffered loss of love and affection and also loss of the income, they filed Claim Petition No.50/2003 before the Motor Accident Claims Tribunal, Yavatmal under Section 166 of the M.V. Act 1988. Along with the said petition, the appellants also preferred an application under section 140 of the M.V. Act, which was allowed and the appellants received an amount of Rs.50,000/- towards 'no fault liability'. The petition u/s 166 M.V. Act however, came to be dismissed by the Tribunal vide its judgment and order dated 19.09.2007 holding that as the cause of the accident was ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 5 the rash and negligent driving of the deceased himself, the liability cannot be fixed upon the owner of the truck under section 166 of the Motor Vehicles Act. It was therefore, held that the petition under section 166 of the M.V.Act, cannot be maintainable in law. Accordingly, the said petition came to be dismissed. 6] According to appellants, as they were having no alternate remedy, they preferred claim petition under section 22 of the Workmen's Compensation Act, 1923 before the Labour Court, Yavatmal. In support of their claim, they also adduced the evidence. However, the Labour Court has also, vide its impugned judgment and order dated 23.07.2015, dismissed the said claim petition, holding that, when the appellants had elected the remedy of approaching the Tribunal under section 166 of the Motor Vehicles Act, the petition under section 22 of the Employee's Compensation Act cannot be maintainable. Therefore, though it was held that the appellants are entitled to get the compensation of Rs.3,34,580/- for the death of the deceased, it was held that, as they have already elected and attempted to pursue the remedy under section 166 of the Motor Vehicles Act, their petition is barred by res judicata and therefore, it is not maintainable. Accordingly, it came to be dismissed. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 6 7] While challenging this judgment and order of the Labour Court, the submission of learned counsel for appellants is that the learned Trial Court has failed to appreciate properly the legal issues involved in the case. It is urged that the claim petition filed by the appellants before the Tribunal under section 166 of the M.V. Act came to be dismissed on the sole ground that it is not maintainable and in such situation, the remedy provided to the appellants under the Employee's Compensation Act, in view of section 3 sub-clause (5) cannot be barred. It is urged that the appellants had not received any amount of compensation in the claim petition u/s 166 of M.V. Act except for the amount of Rs.50,000/-, which was paid to them towards 'no fault liability' u/s 140 of the said Act. It is urged that the case would have been different if the claim of the appellants was allowed under the M.V. Act and again they have sought the compensation under the Employees Compensation Act. It is urged that the object and reason of both M.V. Act and E.I. Act and the remedies provided under both the Act are totally different and hence the bar of res judicata cannot be attracted in the instant case. In support of his submission learned counsel for appellants has relied upon the various judgments of this Court and also of the Apex Court. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 7 8] Per contra, according to learned counsel for respondent No.7, the claim petition of the appellants before the Tribunal under section 166 of the M.V. Act was not dismissed on any technicality, but it was dismissed on merits as they failed to prove negligence on the part of the truck owner and accident was proved to have occurred due to rash and negligent driving of the deceased himself. It is submitted that, once the appellants had elected the remedy of approaching the Tribunal under M.V. Act by filing petition under section 166 of the said Act and that remedy is exhausted, they cannot again avail another remedy, provided under the Employee's Insurance Act. It is submitted that the Tribunal has also in its judgment in Claim Petition No.50/2003, has held that the appellants have closed the doors for themselves, even to come under section 163-A of the Act as they have availed the interim compensation towards 'no fault liability' under section 140 of the M.V. Act. It is thus submitted that after becoming unsuccessful in one proceeding, and that too, after availing certain benefit of Rs.50,000/-provided under that proceeding, the appellants cannot approach another forum to get more amount of compensation.
::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 8 9] Learned counsel for respondent No.7 has also in support of his submission relied upon the judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Mastan and another (2006) 2 SCC 641 and that of the Gujarat High Court in the case of Gulamrasul Rehman Malek V. Gujarat State Road Transport Corporation 2015 ACJ 20.
10] Thus, the only point which necessarily arises for my determination in this appeal is, about the maintainability of the petition filed before the Labour Court under section 22 of the Employee's Insurance Act, in view of the dismissal of the earlier petition filed by the appellants before the Claims Tribunal under section 166 of the Motor Vehicles Act.
11] For deciding this point, it would be useful to reproduce section 167 of the Motor Vehicles Act and also section 3 sub-clause (5) of the Workmen's Compensation Act, which read as follows:
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 ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 9 entitled to compensation may, without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
3. Employer's liability for compensation (1)...
(2)...
(3)...
(4)...
(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury--
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.
Thus, it can be seen that section 167 of the M.V. Acts provides an option to the claimant, one that of, filing a petition either under section 166 of the Motor Vehicles Act or under section 22 of the Workmen's Compensation Act, but with a rider that he will not be entitled to compensation under both the provisions.
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12] Section 3 sub-clause (5) of the Workmen's Compensation Act also provides that, if any suit for compensation in respect of any injury suffered by the workman in the course of his employment, is filed by said workman in the Civil Court, his claim petition under Section 22 of the Workmen's Compensation Act cannot be maintainable.
13] Both these statutory provisions came up for their interpretation in number of the decisions of the Apex Court and various High Courts. The foremost of such decisions, relied upon by learned counsel for respondent No.7 is, that of National Insurance Co. Ltd. Vs. Mastan and another (2006) 2 SCC 641, wherein the Apex Court has explained the "doctrine of election" as a branch of "rule of estoppal" 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. It was held that, 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. It was further held, that when the cause of action arises under different statutes and the claimant elects the forum under one Act in preference to ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 11 the other, he cannot be thereafter permitted to raise a contention, which is available to him only in the former.
14] While dealing with the provisions of section 167 of the M.V. Act it was observed that, "the said section 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 Employee'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". It was further held that, "once the claimant has pursued his claim for compensation till the order was passed and thereafter invoked the provisions of Motor Vehicle Act, he is not entitled to do so having elected one forum.
15] In my considered opinion, as regards the "doctrine of election" which is explained in this authority, there can hardly be any two opinions about the same. However, one has to consider the context in which this doctrine was invoked. It can be seen that the question, which was raised before the Apex Court in this case was, as laid down in para 2 thereof. It was to the effect, "whether ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 12 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, 1988".
16] Therefore, the question raised in this appeal before the Hon'ble Apex Court was totally different. In para 5 of the judgment it was again reiterated that the question referred to the Full Bench was, "whether the restrictions on the defences available to an insurance company in terms of section 149(2) of the Motor Vehicles Act have any application to the proceedings under the Workmen's Compensation Act?"
17] Thus, the question, which was placed for consideration before the Hon'ble Apex Court in this decision, was entirely different than the question which is raised for consideration in this appeal. While deciding the said question as to whether the defences or contentions available under one proceeding can be invoked in another proceeding the Hon'ble Apex Court was pleased to hold in para 29 of the judgment that, "when the cause of action arises under different statutes and the claimant elects the forum under one Act in preference to the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 13 other, he cannot thereafter be permitted to raise a contention, which is available to him only in the former. Having regard to the different provisions of the two Acts, he can enforce the liability of insurer only under one Act. He has to elect for one. It was further held that, the first respondent therein having chosen the forum under Workmen's Compensation Act for the purpose of obtaining compensation against his employer, cannot now fall back upon the provisions of the M.V. Act therefor, in as much as the procedure laid down under both the Acts is different". 18] Ultimately, it was held that in a proceeding where the right of insurer to raise a defence is limited in terms of section 149 (2), an appeal preferred by it against an award of the M.A.C.T. must be confined or limited to that extent.
19] Thus, on perusal of the entire judgment of the Apex Court in this case, it can be seen that having regard to the issue involved in the said matter as to whether the defence as provided under section 149 of the M.V. Act can be raised, while defending an action initiated under the Workmen's Compensation Act, 1923, the Hon'ble Apex Court has made above said observations. In my considered opinion therefore, the question, which is involved in ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 14 the present appeal, as to when the appellants who have failed to prove their claim under section 166 of the M.V. Act, can approach or avail the remedy under Workmen's Compensation Act, was not raised for consideration before the Hon'ble Apex Court in the said case.
20] As regards the reliance placed by learned counsel for respondent No.7 on the judgment of Gulamrasul Rehman Malrek V. Gujarat State Road Transport Corporation (supra), the facts of the said judgment reveal that the workman who was a driver in the said case, met with an accident due to his own negligence when he dashed his bus against a tree and sustained injuries. It was held that, he had the choice of filing claim either under Motor Vehicles Act or under Employee's Compensation Act but not under both. The claimant with expectation to get more amount opted to obtain compensation under Motor Vehicles Act, knowing that under Employee's Compensation Act, even without proving negligence, he could get the benefit. The proceeding under Motor Vehicles Act however, came to be dismissed on merit as he failed to prove negligence of employer, which is a sine qua non for maintaining such application. He then preferred appeal against the said judgment and while that appeal was pending. He filed an ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 15 application, seeking permission to withdraw the proceedings at appellate stage, by taking aid of Order 23, Rule 1 of the Code of Civil Procedure, in order to enable him to file fresh proceedings under Employee's Compensation Act. Hence, in that context it was held that after having elected to proceed under section 166 of the M.V. Act and having received benefit u/s 140 of the said Act, the claimant was precluded from approaching the forum constituted under the Employee's Compensation Act, especially on account of the fact that his claim petition before the M.V. Act was dismissed as he has failed to prove the negligence of employer. 21] This judgment also therefore, is not applicable to the facts of the present case. In this judgment of the Gujarat High Court, the claim petition filed before Tribunal under M.V. Act was dismissed, on account of failure of claimant to prove negligence of the employer, which is a sine qua non for maintaining such application. The appellant thereafter has sought permission to withdraw the said proceedings pending in appeal so as to file fresh proceedings under Employee's Insurance Act and therefore, it was held that such permission cannot be granted, as he has failed on merit to prove his case.
::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 16 22] As against it, in the instant case it may be true that the appellants have availed the benefit of compensation for no fault liability under section 140 of the M.V. Act, but their petition filed before the Tribunal under section 166 of the M.V. Act was not dismissed on merit, on the ground that the appellants have failed to prove the negligence of employer, but on the count that the accident has occurred on account of the rash and negligent driving of the deceased himself. Hence the petition under section 166 M.V. Act was held not maintainable. Therefore, the facts of the present appeal need to be distinguished from the facts of this judgment of Gujarat High Court also.
23] In this context, learned counsel for the appellants has relied upon the judgment of this Court in the case of Neelabai Mahadeo Salunke and others vs. Shamrao Tatoba Pawar and others 1994 Mh.L.J. 1656. In the said case also, the accident has resulted into the death of the driver of a tractor during the course of his employment. The claim for compensation filed by driver's dependants under section 110A of Motor Vehicles Act was rejected, as accident had occurred due to driver's negligence and therefore no compensation was awarded. The claimants thereafter claimed compensation under the Workmen's Compensation Act, ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 17 but the same was disallowed by the Commissioner for Workmen's Compensation by invoking section 110AA of the Motor Vehicles Act, which prohibited the claimants from making double recovery of compensation by invoking the Motor Vehicles Act and the Workmen's Compensation Act. When the appeal came before this Court, it was held that the bar under section 110AA of M.V. Act cannot be applicable. Even if the deceased was himself negligent in driving the tractor leading to the accident, the claim for compensation under Workmen's Compensation Act would still be maintainable against the employer concerned or against the insurance company, if the deceased died as a result of an accident, which took place during the course of employment of the deceased. It was held that the criteria to be applied for determination of application for compensation under the Workmen's Compensation Act, 1923 is somewhat different than the criteria to be applied for determination of the claim for compensation under section 110AA of the Motor Vehicles Act, 1939.
24] According to learned counsel for respondent No.7, this judgment of the Court is prior to the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Mastan and ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 18 another (supra) and therefore, cannot be made applicable. However, I have already held that the judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Mastan, deals with a different context and is answering a very different issue framed for its consideration. Therefore, this judgment, of our own High Court which deals with more or less the same facts, as the present appeal, can be considered for deciding the issue involved herein. 25] Learned counsel for appellants has then also placed reliance on the judgment of Single Judge of Gujarat High Court in United India Insurance Co. Ltd. Vs. Fatmaben Jamalbhai 2009 Law Suit (Guj) 474, wherein also the driver of the tempo had died in an accident involving the tempo and a truck. The claim petition was filed by legal heirs of the tempo driver against the insurer, in which the award was passed. Thereafter, the same legal heirs of tempo driver filed an application for compensation under the Employee's Compensation Act. The question raised was whether bar under section 167 of M.V. Act prohibits proceedings under both the Acts. It was held that the provision of section 167 of the M.V. Act will not bar proceedings under both the Acts. After relying on earlier decisions of the Court it was held that whatever amount of compensation was received by the claimants under the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 19 Motor Vehicles Act can be deducted while passing order under Workmen's Compensation Act as both the petitions can be maintainable.
26] Learned counsel for appellants has then placed reliance on the judgment of Madras High Court in the case of United India Insurance Co. Ltd. Vs. Anthony Selvam 2014 (2) TN MAC 227, wherein the claim made under Employee's Compensation Act was dismissed on the ground that claimant was not employee of the owner of auto-rickshaw. Thereafter the claimant filed the petition under section 166 of the M.V. Act, which was challenged on the ground of maintainability. However, it was held that the said petition can be maintainable. 27] In my considered opinion, the decision, which directly covers the present controversy, is that of our own High Court in the case of New India Assurance Co. Ltd. Vs. Bharati Adhik Patil & ors. 2016(4) Bom.C.R. 73. In that case the claimant had filed the claim for Rs.10,10,000/- before Motor Accident Claims Tribunal under section 166 of the M.V. Act. Subsequently that claim was converted under section 163-A of the M.V. Act. However, vide its judgment and order dated 06.09.2007, the Tribunal held that ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 20 deceased was getting the income of more than Rs.40,000/- per annum which is a pre-requisite condition for the claim under section 163-A of the Motor Vehicles Act and therefore, the petition under section 163-A of the M.V. Act cannot be maintainable. It was further held that the evidence on record revealed that the accident took place due to the rash and negligent driving of the deceased alone. Hence, the said petition cannot be maintainable and accordingly it was dismissed. The claimant thereafter, filed claim petition under the Workmen's Compensation Act. In the said petition, the Insurance Company raised the point of maintainability on the count that once a claim preferred under the M.V. Act for compensation is rejected then, another subsequent claim cannot be filed by the claimants under the Workmen's Compensation Act, as it is barred under section 167 of the M.V. Act. The said objection was turned down by the learned Commissioner on the ground that the dependents or the claimants had not receive any compensation from the Motor Accident Claims Tribunal and therefore, the application under Workmen's Compensation Act for compensation was maintainable. Accordingly, the application was partly allowed. 28] When this order of the Commissioner was challenged ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 21 before the Single Judge of this Court in the above said judgment, this Court took note of the relevant provisions of 167 of M.V. Act and Section 3(5) of the Workmen's Compensation Act and also the decision of the Apex Court referred above, that of National Insurance Co. Ltd. Vs. Mastan and another and several other decisions like the decision in the case of Oriental Insurance Co. Ltd. Vs. Dyamavva, the decision of Andhra Pradesh High Court in the case of United India Insurance Company Ltd. Vs. Kore Lakshmi & Ors. and also the decision of this Court in the case of Smt.Neelabai referred above (supra). Thereafter it was held that, as the claim petition was dismissed by Motor Accident Claims Tribunal on two grounds, one the deceased was driving in a rash and negligent manner and, second, on the ground that he was having a salary of more than Rs.40,000/-, per year. Hence the other option was chosen by the claimant to approach the Commissioner for Workmen's Compensation under Workmen's Compensation Act can be very much available. It was held that, the liability under the Motor Vehicles Act is out of torts, however, under the Workmen's Compensation Act, it is a strict statutory liability. The sum and substance of both these provisions namely, section 167 of M.V. Act and section 3(5) of Workmen's Compensation Act is that the person should not get benefit of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 22 compensation twice out of the same cause. Therefore, if the claim petition is rejected on certain technicalities before one forum, then, denying other forum will lead to depriving dependents of the compensation for which they are otherwise entitled. It was observed that both the Workmen's Compensation Act and Motor Vehicles Act are social legislations. Hence, the sections cannot be interpreted in such a manner so that the object of legislation will be frustrated. It was held that though the claim is filed before one forum and is rejected and later on, the claim is filed before the other forum, then, giving compensation under the said Act is not a deviation from the ratio laid down in either the case of Mastan (supra) or in the case of Dyavamma (supra) as the person is not receiving double benefit.
29] In para 28 of the judgment, this Court has considered in a very effective manner as to how it would be absolutely unjust to close the other option to the dependents of the deceased, as follows:
28. It will be absolutely unjust to close the other option which is available to the dependents of the deceased. The deceased has left behind a widow and a minor daughter and parents. The employee-employer relationship is proved and the fact that the accident has taken place in the course of his employment is also established. Therefore, only because application was filed earlier and was rejected, hence, applying the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 23 doctrine of election, the claimant cannot be estopped from filing this application. The claimants need money to survive. The minor dependents need money for their education and future. Ignorance of law is not a defence, however, the Court cannot shut eyes to the realities and practical difficulties faced by the litigants. The proceedings are filed by legal experts who are the lawyers and due to some wrong notions, the litigants cannot be deprived of their right to get justice and fair compensation. The words 'filing claim' is to be read with implication of 'receiving compensation'. Thus, considering the core of the ratio of the judgments of the Supreme Court and the High Courts referred above, the claimant is prohibited to enjoy double benefit and therefore, the relevant provisions are made in the Workmen's Compensation Act and also Motor Vehicles Act.
30] In the facts of the present case also, it is true that the appellants have initially chosen the option of approaching the Tribunal under Motor Vehicles Act for seeking compensation under section 166 of the said Act. It is also true that they had received certain amount of compensation i.e. Rs.50,000/- towards 'no fault liability' under section 140 of the said Act. However, on the evidence produced before the Tribunal, it was found that the cause of action was the rash and negligent driving of the deceased and in view thereof the Tribunal has, on that sole ground held that the petition under section 166 of the Motor Vehicle Act cannot be maintainable.
31] Thus, the only ground on which the petition came to ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 24 be rejected was that it was not maintainable under section 166 of the Motor Vehicles Act as the rash and negligent driving of the deceased was found to be the sole cause of accident. In-directly it indicates that the said petition was not decided on merit. The issue which is sine quo-non for deciding the claim petition under the Workmen's Compensation Act, that of the relationship between the employer and employee was not at all considered in that petition. Hence as held in the above said authority of New India Assurance vs. Bharati Adhik Patil, when the petition is dismissed on technical ground, of it being not maintainable under section 166 of the M.V. Act, then it would be absolutely unjust to close the door of another forum, which is available to appellants. 32] Especially in the facts of the present case, it is pertinent to note that the Commissioner, Workmen's Compensation has in his impugned judgment held that the deceased was working as driver with the owner of the truck and he was also getting salary of Rs.5000/- per month. It was further held in the impugned judgment that the appellants therefore, become entitled to get the compensation of Rs.3,34,580/- with interest. However the only ground on which the Commissioner has rejected the claim was that the appellants had already ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 25 approached the Tribunal under Motor Vehicles Act and their petition was rejected by the tribunal. In my considered opinion, when the two remedies are independently available and under one remedy the petition came to be dismissed on technical ground of being not maintainable, then another remedy cannot be fore- closed, especially on the ground of res judicata. The finding of the Commissioner to that effect is definitely erroneous and in the light of the legal position, as discussed above, the impugned order of the Commissioner therefore rejecting the claim petition needs to be quashed and set aside.
33] As learned Commissioner has already held the appellants entitled for the amount of Rs.3,34,580/- and as the appellants have already received the amount of Rs.50,000/- towards 'no fault liability', deducting the said amount from the amount of Rs.3,34,540/-, the appellants become entitled to get the amount of Rs.2,84,580/- towards compensation from respondent Nos.1 to 6 and respondent No.7 jointly and severally with interest at the rate of 7.5% per annum from the date of filing of the petition.
34] As a result, the appeal is allowed. The impugned ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 ::: fa912.16.J.doc 26 judgment and order of the Commissioner, Workmen's Compensation is set aside.
35] The appellants are held entitled to get the amount of Rs.2,84,580/- with interest at the rate of 7.5% per annum from the respondent Nos.1 to 6 and 7 jointly and severally, from the date of filing of the petition before the Commissioner Workmen's Compensation till realization of the amount.
36] In the circumstances, the parties are left to bear their own costs.
JUDGE NSN ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:38:22 :::