Unknown vs Rt on 17 November, 2016

[Cites 36, Cited by 0]

Himachal Pradesh High Court

Unknown vs Rt on 17 November, 2016

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1283 of 2006 a/w CWP No. 1788 of 2007.

Judgment reserved on: 10.11.2016 Date of decision: 18.11.2016

1. CWP No. 1283 of 2006 of National Insurance Co. Ltd. . ..... Petitioner Versus rt State of Himachal Pradesh and Ors. ..... Respondents

2. CWP No. 1788 of 2007 National Insurance Co. Ltd. ..... Petitioner Versus Smt. Dev Mani & Ors. ..... Respondents Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Whether approved for reporting? Yes.

For the petitioner(s): Ms. Devyani Sharma, Advocate, in CWPs No. 1283 of 2006 and CWP No. 1788 of 2007.

For the respondents: Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals with Mr. J.S. Guleria, Assistant Advocate General for respondents No. 1, 2 and 7 in CWP No. 1283 of 2006 and for respondents No. 5 and 6 in CWP No. 1788 of 2007.

Mr. Jagdish Thakur, Advocate, for respondent No. 3 to 5 in CWP No. 1283 of ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 2 2006 and for respondents No. 1 to 3 in CWP No. 1788 of 2007.

Mr. Satyen Vaidya, Senior Advocate, with Mr. Varun Chauhan, Advocate, for .

respondents No. 6 in CWP No. 1283 of 2006 and for respondent No. 4 in CWP No. 1788 of 2007.

_____________________________________________________________ Tarlok Singh Chauhan, Judge of Since common question of law and facts arise for consideration in these appeals, therefore, they were taken up rt together for hearing and are being disposed of by way of this common judgment.

2. The brief facts as pleaded are that one Shyam Sukh son of Shri Chhopal Sukh, who was the husband of respondent No. 3 and father of respondents No. 4 and 5 was engaged as work-charged Mate by the Public Works Department in Karchham Sub Division. On 15.6.2004, the deceased had gone by Bus to the headquarter and while coming back in a private bus owned by respondent No. 6 and insured with the petitioner Company, he met with an accident as the bus fell down in Sutluj river and was washed away. The dead body of the deceased was found near Nathpa on 6.7.2004. The employer of the deceased i.e., the Assistant Engineer, H.P.P.W.D, Karchham Sub Division submitted the accident report to the ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 3 authorities concerned and copy of the same was also sent to the Court of learned Commissioner under the Workmen's Compensation Act-cum-Land Acquisition Collector (in short .

'Commissioner') vide endorsement dated 16.6.2004.

3. The claimants thereof filed an application for compensation in Form-F under Rule 20 of the Workmen's Compensation Rules and the said petition was not resisted by of respondents No. 1 and 2 rather the liability was admitted on their behalf. rt

4. Smt. Dev Mani - respondent No. 3 appeared as her own witness before the Commissioner and submitted various documents in support of her claim. The claim was admitted by the Udai Ram, Junior Engineer of the Division concerned and it was admitted that the compensation be paid to the claimants.

After recording the evidence, learned Commissioner vide his award dated 23.2.2005 allowed the petition by awarding a sum of Rs. 3,38,880/- alongwith interest at the rate of 12% per annum w.e.f. 15.6.2004 to 23.2.2005 amounting to Rs. 28,299/-

and directed the amount to be deposited within two months failing which the award was to carry interest at the rate of 12% till the same was deposited and in addition thereto a further sum not exceeding 50% of such amount was to be recovered as penalty.

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5. In the interregnum i.e. before actually filing the claim petition before the Commissioner, the claimants preferred a petition under Section 166 of the Motor Vehicle Act .

(in short ' M.V. Act') before the Motor Accident Claim Tribunal (in short 'Tribunal'), Kinnaur, which was registered as MACT Case No. 51 of 2004. This petition was filed with respect to the same accident and with regard to the compensation for the of death of Shri Shyam Sukh.

6. This petition came to be decided on 15.3.2015 rt whereby a compensation of Rs. 3,47,040/- was awarded in favour of the claimants and the same was directed to be deposited within two months from the date of award failing which it was to carry simple interest at the rate of 9% per annum from the date of award till its realization. The award was passed against the owner of the vehicle i.e. respondent No. 6 on account of the vehicle being insured with the petitioner. It was ultimately the petitioner, who was held liable to indemnify the insured.

7. In the later case the statement of the claimant was recorded on 28.2.2005 and even till then claimant did not disclose that the statement had already been recorded before the Commissioner under the Workmen's Compensation Act.

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That being so, the petitioner was unaware of any award having been passed by the Commissioner under the Act.

8. On coming to know about the award, the petitioner .

filed review petition before the Motor Accident Claim Tribunal.

In the meanwhile, the State of Himachal Pradesh i.e. respondent No. 2 also filed review before the Commissioner for the review of the award dated 23.2.2005 on the ground that of petitioners have already been awarded compensation by the Commissioner.rt

9. On 20.5.2006, the Commissioner recorded the statement of the claimant regarding the option of claim and the claimants by way of a joint petition under Section 151 C.P.C. stating therein that they wish to receive compensation under the award passed by the Tribunal and not from the Commissioner. Commissioner on the basis of such statement passed an order on 26.8.2006, which reads thus:-

"26.8.2006 Case called.

Present: Shri Liak Ram Claimant Shri Rajiv Kumar JE PWD for PWD Shri H.K. Sharma, for NIC.

The claimants stated on oath and also through their reply that they have preferred claim under MACT-cum- District Judge, Rampur and do not want to get compensation from Commissioner WC Act, though the award under WC Act has already been announced on 23.2.2005 in favour of the claimants. But the claimants do want to get compensation under MACT from D.J., Rampur. The claimants cannot get claim-compensation from both the ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 6 forum. Thus, in view of the option of claimants the award passed by this Forum is directed not to be executed or enforced. The amount of money deposited by the respondent be returned to them through Bank draft.

Announced.

Sd/-

.

Commissioner, Workmen's Compensation Act."

It is this order which found the subject matter of CWP No. 1283 of 2006.

10. After filing of the aforesaid writ petition CWP No. 1283 of 2006, the review petition filed by the petitioner came rt up for consideration before the Tribunal, however, the Tribunal vide its order dated 3.7.2007 held the review petition to be not maintainable and accordingly dismissed the same, which has given rise to CWP No. 1788 of 2007.

11. As regards CWP No. 1283 of 2006, the order passed by the Commissioner has been assailed primarily on the ground that it had no jurisdiction to entertain the review petition. In addition to that, it is averred that since the claimants themselves had elected to resort to the remedy available under the Act, it was this award which was binding upon the claimants, more particularly, when it had been passed earlier to the award passed by the Tribunal and was even otherwise more beneficial to the claimants.

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12. As regards CWP No. 1788 of 2007, it is directed against the order passed by the Tribunal on 3.7.2007 and it is averred that the view of the Tribunal that it had no jurisdiction .

to entertain the review petition is totally based on misconception of law.

I have heard learned counsel for the parties and have gone through the records of the case.

13. It is more than settled that normal principle of law is that once a judgment is pronounced or order made, a Court, rt Tribunal or adjudicating authorities becomes 'functus-officio' ceases to have control over the matter, such judgment or order is 'final' and cannot be altered, changed, verified or modified.

14. It is not in dispute that both the authorities below i.e. Commissioner and Tribunal are specifically constituted under the Act and are not "having plenary powers" but exercising statutory power as conferred under the provisions of the respective Act under which they have been so constituted.

They, therefore, cannot act outside or de hors the Act nor can exercise powers not expressly and specifically conferred by law.

15. It is well settled that the power of review is not an inherent power. Right to seek review of an order is neither ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 8 natural nor fundamental right of any aggrieved party. Such power must be conferred by law, therefore, if there is no power of review the order, cannot be reviewed.

16. In Patel Narshi Thakershi & Ors. vs. Pradyuman Singhji Arjun Singhji, 1971 3 SCC 844, while dealing with the provisions of the Saurashtra Land Reforms Act, 1951 and reference to order 47 Rule 1 of the Code of Civil Procedure, of 1908, the Hon'ble Supreme Court held that there is no inherent power of review with the adjudicating authorities. It was held rt that it is well settled that "the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implications. No provision in the Act was brought to the notice from which it could be covered that the government had power to review its own order. If the government had no power to review its own order, it is obvious that its delegate could have reviewed its order."

17. A Division Bench of this Court in Oriental Insurance Co. Ltd. vs. Kala Devi, 1997 ACJ 17 has held that the Commissioner under the Act has no power to review his order.

It is apt to reproduce the relevant observations, which reads as under:-

"10. There is yet another aspect of the case. Admittedly, the claim petition filed by the claimants was disposed of on June 12, 1984 as ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 9 having been compromised between the parties whereby the claimants had accepted the compensation of Rs. 10,000 in full and final settlement of their claim. The order dated June 12, 1984, dismissing the claim petition as having been compromised was reviewed by the compensation officer and fresh assessment of compensation was made.

.

11. The question which thus arises for consideration is whether the Commissioner under the Act has the power of review.

12. A Division Bench of this Court in East India Hotels Ltd. v. Union of India and Ors., C. W. P. No. 155 of 1986, decided on December 29, 1995, while dealing with the power of competent authority to review its order under the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952 by following the ratio laid down by the Apex Court in Patel Narshi Thakershi and Ors. v.

of Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273, has held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.

13. We have perused the provisions of the Act and we are of the rt opinion that even by implication it cannot be said that the Commissioner under the Act had the power to review. Rather sub- rule (2) of Rule 32 of Workmen's Compensation Rules, 1924 prohibits the review by the Commissioner. This sub-rule provides as under:--

"The Commissioner, at the time of signing and dating his judgment, shall pronounce his decision, and thereafter no addition or alteration shall be made to the judgment other than the correction of clerical or arithmetical mistake arising from any accidental slip or omission."

18. The ratio laid down in the aforesaid judgment was thereafter followed by this Court in National Insurance Co. Ltd.

vs. Khub Ram & Anr., 2015 4 ILR 488.

19. Earlier to this, a Division Bench of this Court in LPA No. 109 of 2007, titled Rajinder & Ors. Vs. Gokal Chand & Anr., decided on 2.5.2015, reiterating the ratio laid down by the Hon'ble Supreme in Patel Narshi Thakreshi's case (supra) that the powers of review is not inherent power observed as under:-

"22. That apart, the order passed by the Deputy Commissioner is factually wrong because while construing clause-11 of the Scheme, he failed to make a note of the fact that the embargo prescribed for transfer of the land under the Scheme as per notification No. Rev.2-A(3)11/77 dated ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 10 11.9.1980 was 20 years as against 15 years. Therefore, once it is concluded that the proforma respondent could not have transferred the land in favour of appellants within the period of 20 years, the Deputy Commissioner had no other option but should have cancelled the land allotted in favour of the appellants and should have thereafter recommended to the government for the resumption of the land.

.

23. The order passed by the Deputy Commissioner in the subsequent review petition cannot otherwise be sustained because it is well settled that power of review is not an inherent power. Right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by the law. If there is no power of review, the order cannot be reviewed.

24. The law on the subject has been succinctly dealt with by the Hon'ble Supreme Court in Kalabharti Advertising vs. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 in the following terms:-

of "12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a rt review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC 1457; and Harbhajan Singh v. Karam Singh & Ors., AIR 1966 SC

641).

13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra Bhan Singh v.

Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapu (U.P.) & Ors., AIR 1987 SC 2186; State of Orissa & Ors. v. Commissioner of Land Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162; and Sunita Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705, this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.

14. Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/ modification/correction is not permissible."

25. There is yet another reason why the subsequent order dated 20.11.2000 passed by the Deputy Commissioner in the review petition cannot be sustained. The Deputy Commissioner after pronouncing, notifying and communicating the initial order dated 26.6.2000 became functus officio and could not thereafter revise/ review/ modify the said order. It is only the higher forum that could have varied the order. In observing so, we draw support from the following observations of Hon'ble Supreme Court in State Bank of India and others vs. S.N.Goyal (2008) 8 SCC 92, wherein it has been held as follows:-

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"25. The learned counsel for respondent contended that the Appointing Authority became functus officio once he passed the order dated 18.1.1995 agreeing with the penalty proposed by the Disciplinary Authority and cannot thereafter revise/review/modify the said order. Reliance was placed on the English decision Re :

VGM Holdings Ltd, reported in 1941 (3) All. ER page 417 wherein it was held that once a Judge has made an order which has been .

passed and entered, he becomes functus officio and cannot thereafter vary the terms of his order and only a higher court, tribunal can vary it. What is significant is that decision does not say that the Judge becomes functus officio when he passes the order, but only when the order passed is 'entered'. The term 'entering judgment' in English Law refers to the procedure in civil courts in which a judgment is formally recorded by court after it has been given.

26. It is true that once an Authority exercising quasi judicial of power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advance Law Lexicon (3rd Edition, Vol.2 Pages 1946-47) gives the following illustrative definition of the term 'functus officio' : "Thus a rt Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision."

27. Black's Law Dictionary (Sixth Edition Page 673) gives its meaning as follows :

"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".

28. We may first refer to the position with reference to civil courts. Order XX of Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Subrule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to section 152 and power of review). The position is different with reference to quasi judicial authorities. While some quasi judicial tribunals fix a day for pronouncement and ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 12 pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in .

an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note on dated 18.1.1995."

20. Ms. Devyani Sharma, learned counsel for the petitioner vehemently contended that though the application rt filed before the Tribunal may have been nomenclatured as review but in substance it was for recalling of the award as the same had been obtained by practicing fraud and it is more than settled that every Court/Tribunal has power to recall such order.

21. In order to buttress her aforesaid submissions, she would rely upon the following observations of the Hon'ble Supreme Court in the United India Insurance Co. Ltd. vs. Rajinder Singh & Ors., AIR 2000, SC 1165, wherein it was held as under:-

"16. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 13 would be limited to the issues formulated from the pleadings made till then.

17. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to .

recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."

22. On the strength of the aforesaid judgment , it is vehemently contended by the learned counsel for the of petitioner that on 15.6.2004 Shyam Sukh the predecessor-in-

    interest     of     the
                        rt     claimants      met        with     an      accident         and

immediately on 16.6.2004 information regarding the accident had already been imparted by the Department to the Commissioner and therefore, it would be 16.6.2004 and not any subsequent date when the claimants may have actually filed the application for compensation in Form-F under Rule 20, (which admittedly had been filed in August, 2004) that would be date to determine institution of proceedings for compensation by claimants for the purpose of determining the 'option' as envisaged under Section 167 of M.V. Act.

23. Whereas, Shri J.S. Guleria, learned counsel for the State i.e. Respondents No. 1 and 2 contended that undoubtedly the respondents had reported the factum of accident to the Commissioner concerned on 16.6.2004 but the claim petition was actually filed by the claimants somewhere in ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 14 late August, by which time the claimant has already filed claim petition before the Tribunal on 16.8.2004.

24. Therefore, in such circumstances, one must first .

consider the starting point or terminus-a-quo visualised and prescribed under the Act. Can the proceedings be said to have commenced on mere receipt of the information from the employer regarding the factum of accident and consequent of notice thereupon to the claimants or is it the date when the claimants actually filed the claim petition in Form-F under Rule rt 20 of the Workmen's Compensation Rule before the Commissioner under the Act. It is only after this question is answered and this Court comes to the conclusion that it is 16.4.2004, which is the terminus-a-quo, that the further question as to whether the claimants had obtained the award by fraud before the Tribunal would alone arise for consideration, as admittedly the claim petition therein had actually been filed earlier to the petition having actually been filed before the Commissioner in Form-F under Rule 20.

25. However, before answering the question, it would be necessary to refer Section 167 of the M.V. Act, which reads thus:-

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"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."

26. A perusal of the aforesaid Section makes it evidently clear that the same gives an option to claimant for claiming a compensation either before the Commissioner or of before the Tribunal, but obviously both the remedies are not available at the same time.

27. The learned counsel for the petitioner would vehemently argue that the proceedings before the Commissioner are deemed to be commenced when he issued notice to the claimants and in response thereto the claimants who were not under any obligation still choose to file the claim petition. Thus, the claim petition relate back and would be deemed to have been filed on 16.6.2004. In support of her contention reliance has been placed upon the following judgments:-

(i) In United India Insurance Co. Ltd. vs. Bhagat Ram and Anr., 1991 ACJ 288, this Court was dealing with the case wherein a claim for compensation had been filed before the Tribunal and another claim on the same cause had also been filed before the Commissioner on account of injuries sustained ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 16 in an accident and the injured stated that he neither put in appearance nor filed any application before the Commissioner and had further stated that he had neither .

received any amount nor intended to receive any amount under the Workmen's Compensation Act and this Court after taking notice of the fact that there was no evidence that the injured himself had exercised this option by filing an application of before the Commissioner, the application before the Tribunal was maintainable. It is apt to reproduce relevant observations, rt which reads as under:-

"6. On coming to know of this award, Bhagat Ram filed an application under Section 110-AA of the Motor Vehicles Act for permitting him to pursue the accident claim petition. In his application, he had clearly stated that neither he had filed any application for claiming compensation under the Workmen's Compensation Act, Nurpur, nor he had appeared before him. He further made it clear that neither he received any amount nor he intended to receive any amount under the Workmen's Compensation Act. The United India Insurance Co. Ltd. filed its reply to the application and asserted that the claim petition under the Workmen's Compensation Act was filed by Bhagat Ram and he had the knowledge of its proceedings and the award of the Commissioner.

12. In the present case, despite their preliminary objection raised in the written statement, the United India Insurance Co. Ltd. did not ask for the issue that the claim petition was barred under Section 110-AA. Their pleadings in this regard were very vague. Even when Bhagat Ram came in the witness-box, they did not care to cross-examine him at all. Though they filed the award dated 30.3.1988, yet they did not care to bring it on record. They did not lead any evidence to show that it was Bhagat Ram who has filed a claim petition before the Commissioner under the Workmen's Compensation Act, Nurpur and that he had knowledge of its pendency or award dated 30.3.1988. When the application under Section 110-AA of Bhagat Ram was allowed and he was permitted to proceed with his claim petition under the Motor Vehicles Act ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 17 vide order dated 26.8.1988, the United India Insurance Co. Ltd. was yet to produce its evidence but neither it challenged the order dated 26.8.1988 in a higher court nor did it lead any evidence before the Motor Accidents Claims Tribunal to prove that Bhagat Ram had, in fact, exercised his option for the remedy under the Workmen's Compensation Act by filing the claim petition before the .

Commissioner under the Workmen's Compensation Act, Nurpur. In these circumstances, there was no reason to disbelieve the specific averment of Bhagat Ram made in his application under Section 110-AA of the Motor Vehicles Act, 1939 and his statement on oath that he did not file any claim petition under the Workmen's Compensation Act.

13.1 have called the record of the Commissioner under the Workmen's Compensation Act, Nurpur and gone through it of carefully. The application is dated 15.11.1986. At its end the words 'Bhagat Ram' are written at two places. There is also one power of attorney on record which is dated 17.11.1986 and the words 'Bhagat Ram' are also written on it at the place meant for the signatures of a rt client. The application was presented before the S.D.M. (C)-cum- Commissioner under the Workmen's Compensation Act on

28.11.1986 not by Bhagat Ram in person but by S.P. Gupta, Advocate, Nurpur. At no stage did Bhagat Ram appear before the Commissioner under the Workmen's Compensation Act, Nurpur. A reply to the claim petition was filed by M/s. Jagat Ram Amrik Chand through its partner, Kulbhushan Sood, who had been attending the proceedings on some dates in person. The reply to the claim petition on behalf of United India Insurance Co. Ltd. was filed through Mr. P.C. Sharma, Advocate, Nurpur. Though issues were framed but no evidence was led as counsel for United India Insurance Co. Ltd., Mr. P.C. Sharma, Advocate, Nurpur, made a statement that compensation might be awarded according to the Schedule under the Workmen's Compensation Act. Both the United India Insurance Co. Ltd. and M/s. Jagat Ram Amrik Chand admitted the status of Bhagat Ram as workman and also his wages at Rs. 600/- per month. Had the United India Insurance Co. Ltd.

cared to bring the application and the power of attorney on record of the Motor Accidents Claims Tribunal and proved these documents, Bhagat Ram would have had an opportunity to admit or deny whether these bore his signatures or not. He might have explained the circumstances under which he signed those documents.

14. Therefore, from the record of the Commissioner under the Workmen's Compensation Act, it is proved on record that Bhagat Ram did not select the remedy under the Workmen's Compensation Act and his claim petition under the Motor Vehicles Act was maintainable. I have no hesitation to hold that it is possible that M/s. Jagat Ram Amrik Chand might have got filed the claim petition under the Workmen's Compensation Act by getting the signatures of Bhagat Ram on a blank paper as well as on power of attorney by not disclosing to him the purpose for which his ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 18 signatures were being obtained. A perusal of the application dated 15.11.1986 clearly shows that the words 'Bhagat Ram' were written first and the application was typed on it later. The words 'Bhagat Ram' are written at the end of the paper on which the application is typed, whereas the application ends earlier and the place for signatures of the applicant is also little above where the words .

'Bhagat Ram' are written."

(ii) In United India Insurance Co. Ltd. vs. Anipeddi Dhanalakshmi and Ors., 1994 ACJ 98, the High Court of Andhra Pradesh was confronted with the situation where on account of of the death of a motor cyclist in accident, the claimant approached the Commissioner and obtained compensation rt and had also filed the claim before the Tribunal and, therefore, the question arose whether the claim petition before the Tribunal was maintainable. It was answered in negative by holding that person was not entitled to compensation before the Tribunal and could also not claim difference of compensation granted by the Tribunal minus the amount of compensation granted by the Commissioner.

(iii) In National Insurance Co. Ltd. vs. Mastan and Anr., 2006 ACJ 528, the Hon'ble Supreme Court was dealing with the question with regard to choice of forum available under Section 167 and Hon'ble Mr. Justice P.K. Balasubramanyan in a separate Court judgment held that under Section 167 of the M.V. Act, a claimant having opted to proceed under Workmen's Compensation Act cannot take recourse or draw ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 19 inspiration from any of the provisions of the MACT Act, 1988 other than what is specifically said by Section 167 of the M.V. Act.

It was further held that since the claimant had not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach Motor Accident Claim Tribunal and of had pursued his claim before the Commissioner till the award was passed, therefore, he was not entitled to invoke the rt provisions of the MACT Act. The relevant observations reads thus:-

"33. On the establishment of claims Tribunal in terms of Section 165 of the Motor Vehicle Act, 1988, the victim of a motor accident has a right to apply for compensation in terms of section 166 of that Act before that Tribunal. On the establishment of the Claims Tribunal, the jurisdiction of the civil Court to entertain a claim for compensation arising out of a motor accident, stands ousted by section 175 of that Act. Until the establishment of the Tribunal, the claim had to be enforced through the civil court as a claim in tort.

The exclusiveness of the jurisdiction of the Motor Accidents Claims Tribunal is taken away by section 167 of Motor Vehicles Act in one instance, when the claim could also fall under the Workmen's Compensation Act, 1923. That Section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the option in that behalf being with the victim or his representative. But section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation both under Motor Vehicles Act, 1988 and under the Workmen's Compensation Act, because of a motor vehicle accident has the choice of proceeding under either of the Acts before the concerned forum. By confining the claim to the authority or Tribunal under either of the Acts, the legislature has incorporated the concept of election of remedies, insofar as the claimant is concerned. In other words, he has to elect whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the section that a claim cannot be made under both the enactments, is a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The principle "where, either of ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 20 two alternative Tribunals are open to a litigant, each having jurisdiction over the matters in dispute and he resorts for his remedy to one of such Tribunals in preference to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter" [See R. v. Evans, (1854) 3 E&B 363] is fully incorporated in the scheme of section 167 of the Motor Vehicles Act, precluding the claimant who has invoked Workmen's compensation Act from .

having resort to the provisions of Motor Vehicles Act, except to the limited extent permitted therein. The claimant having resorted to the Workmen's compensation Act, is controlled by the provisions of that Act subject only to the exception recognized in section 167 of the Motor Vehicles Act.

34. On the language of section 167 of the Motor Vehicles Act and going by the principle of election of remedies, a claimant opting to proceed under the workmen's compensation Act cannot take recourse to or draw inspiration from any of the provisions of the of Motor Vehicles Act, 1988, other than what is specifically saved by section 167 of the Act. Section 167 of the Act vies a claimant even under the Workmen's Compensation Act, 1923 the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as 'no fault' liability in case of an accident. Section 140 of Motor rt Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and section 143 re-emphasises what is emphasized by section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen's Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988.

35. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under Workmen's Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under Workmen's Compensation Act by Section 167 of the Motor Vehicles Act. Claimant-respondent is not entitled to do so. The High Court was in error in holding that he is entitled to do so."

(iv) In Oriental Insurance Co. Ltd. vs. Sudip Ranjan Deb and others, 2009 ACJ 22, the Gauhati High Court was dealing with a case where the claimant had exercised its option under Section 167 by approaching the Commissioner and the award passed in his favour and even the appeal against the same ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 21 had been dismissed and subsequently approached the Tribunal who allowed the compensation by directing the Insurance Company to pay the amount to the claimant after .

deducting the amount already received by him under Workmen's Compensation Act. The question then arose as to whether the claimant who had claimed and had been paid compensation under the Act could subsequently after the of award passed by the Commissioner having attained finality exercise option rt to abandon his claim application for proceeding under the MACT Act. Obviously, the answer to the said proposition was in negative by holding that the claimant had already exercised his option and the same was not available till at a later stage. It was apt to reproduce the relevant observations, which reads thus:

"[8] Thus, Section 13 of Workmen's Compensation Act recognises the claim of the employer to be indemnified for the compensation paid by him to his injured/dead employee by the tortfeasor, who was liable to pay compensation in respect of the same injury. This takes care of the apprehension of learned Counsel for claimant- respondent that the tortfeasor would escape his liability under both the Acts if the injured is barred from claiming compensation from both his employer and the tortfeasor. Section 13 of Workmen's Compensation Act clearly indicates that there is no statutory scheme whittling down the liability of the tortfeasor arising under the Motor Vehicles Act even when compensation is paid by the employer under the provisions of Workmen 's Compensation Act. By virtue of this provision, the employer who has paid the compensation under the Workmen's Compensation Act, will step into the shoes of the claimant and be entitled to recover that much amount from the tortfeasor. The tortfeasor cannot, therefore, take the plea that he cannot be held liable for compensation since the injured has already claimed and was paid the compensation by his employer under Workmen's Compensation Act. This is what has ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 22 been explained by Gujarat High Court in Mahebubanbibi s case,2001 4 GauLR 2950, the case cited by the learned Counsel for claimant-respondent; how this can be of any assistance to his case is incomprehensible. Section 13 of Workmen's Compensation Act only enables the employer to get himself indemnified for the compensation paid by him to the injured employee from a stranger .

including the tortfeasor and does not confer any right upon the injured employee himself to proceed against the insurance company for recovery of damages. However, it is for the employer to proceed against the tortfeasor in an independent proceeding for recovery of the compensation already paid by him to the injured by invoking Section 13 of Workmen's Compensation Act. Thus, the provision of Section 13 of the Workmen's Compensation Act is apparently engrafted in the statute book to prevent unintended benefit to the tortfeasor of retaining the portion of compensation which was paid of by the employer. In my judgment, the foregoing discussion completely dealt with the contention of the learned Counsel for the claimant-respondent on the possibility of the tortfeasor from escaping his liability to pay compensation already received by the rt employee from his employer.

[9] The next question which falls for consideration is whether the claimant-respondent, who has been paid compensation under the Workmen's Compensation Act in terms of the judgment/award dated 18.3.2004 of the learned Commissioner in W.C. Case No. M.18/WC/20 of 2003, can at this stage exercise the option to abandon his claim petition under the Workmen's Compensation Act and proceed with his claim petition under Section 166 of Motor Vehicles Act? Section 167 of Motor Vehicles Act obviously does not prescribe the period within which the person entitled to compensation should exercise his option to claim compensation under either of the two enactments. It may be noted that the order/award dated 18.3.2004 passed by the learned Commissioner has now attained finality when the appeal against the said order was dismissed by this Court in its order dated 2.6.2004 in R.F.A. No. 1 (SH) of 2004. Therefore, no further proceeding is pending before any Tribunal or court in connection with the claim petition filed by the claimant-respondent under the provisions of Workmen's Compensation Act. It is only with respect to the claim petition filed by the claimant-respondent under the Motor Vehicles Act that an appeal is pending before this Court, namely, this appeal filed by the appellant insurance company herein. The appeal before the High Court is a continuation of the original proceeding. In the instant case, as noted earlier, not even an appeal in respect of the claim petition under Workmen's Compensation Act is pending, though the appeal in respect of the claim petition under Motor Vehicles Act is pending before this Court. In this view of the matter, there is no difficulty in holding that the claimant-respondent has already exhausted the option open to him to elect his claim petition under the Motor Vehicles Act. No more choice is open to him at this stage. If both the claim petitions under the two Acts are still pending for adjudication either at the appellate stage or otherwise, it ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 23 can somehow be said that the claimant-respondent has the choice to, opt for one of the pending proceedings. This is sufficiently indicated by the Apex Court in Mastan's case, 2006 ACJ528 (SC), at para 35 of the judgment as under:

"(35) Coming to the facts of the case, the claimant has not .

chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under Workmen's Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under Workmen's Compensation Act by Section 167 of the Motor Vehicles Act. Claimant-respondent is not entitled to do so. The High Court was in error in holding that he is entitled to do so."

of (Emphasis added)

(v) In Gomti Bai and Ors. vs. Dyshyant Kumar and Ors., rt 2012 ACT 2069, a Division Bench of the Chhattisgarh High Court while dealing with the case of election under Section 167 of the M.V. Act, 1988, wherein the claimant had approached the Commissioner and had been awarded compensation which was duly received by the dependents of the deceased workmen. The dependants thereafter filed claim before the Tribunal under Section 167 of the M. V. Act, contended therein that they are entitled to claim compensation because the employer had deposited the compensation amount before the Commission on its own, whereas no application under Section 10 of the Act had been filed by them. The question that arose was whether in such circumstances the claim petition before the Tribunal was maintainable, more particularly, after the claimants had already received the compensation under the ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 24 Workmen's Compensation Act and the question was answered in negative by applying the doctrine of estoppel. It is apt to reproduce relevant observations, which reads thus:-

.

"5. Learned counsel for appellant, placing reliance on judgment of Bombay High Court in the matter of Santabai Parshuram Mule v. Sharda Prasadsingh, 1992 ACJ 270 (Bombay), contended that even after receiving the claim under the 1923 Act, the claimants are entitled to move under Section 166 of 1988 Act, because before the Commissioner the employer, of its own, had deposited the amount and no application under Section 10 of 1923 Act was moved by the claimants-appellants. On the other hand, learned counsel for the respondent has supported the impugned order by of placing reliance on provision contained under Section 167 of 1988 Act.

8. Dealing with the principle 'doctrine of election' as contained in section 167 of the 1988 Act, the Hon'ble Supreme Court in the rt matter of National Insurance Co. Ltd. v. Mastan, 2006 ACJ 528, has held thus in paras 21, 22, 23, 24, 26 and 27:

(21) Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act.

If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accidents Claims Tribunal, having regard to its rights and liabilities vis-a-vis the third person, may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts, cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.

(22) Section 167 of the 1988 Act 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 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim compensation under either of those Acts but not under both. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act.

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(23) The 'doctrine of election' is a branch of 'rule of estoppel', 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. 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. Although there are certain exceptions to the same rule but the same has no application in the instant case.

(24) In Nagubai Ammal v. B. Shama Rao, 1956 AIR(SC) 593 it was stated:

It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its of operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.

(26) Thomas, J. in P.R. Deshpande v. Maruti Balaram rt Haibatti, 1998 6 SCC 507, stated the law thus:

(8) The doctrine of election is based on the rule of estoppel -

the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, 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.

[See also Devashayam v. P. Savithramma, 2005 7 SCC 653.

(27) Respondent No. 1 having chosen the forum under the 1923 Act for the purpose of obtaining the 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.

(Emphasis supplied)

9.In view of the law laid down by the Hon'ble Apex Court in the above referred judgment of National Insurance Co. Ltd. v. Mastan, 2006 ACJ 528 (SC) and applying the said ratio in the facts of the present case wherein the appellant has already received the claim offered by the Commissioner for Workmen's Compensation, this court is of the opinion that the appellants having enforced liabilities of the employer and insurer and having received the benefit/relief under the 1923 Act are precluded/estopped by doctrine of election as envisaged under Section 167 of the 1988 Act to maintain a claim under Section 166 of the Motor Vehicle Act, 1988."

(vi) In Gulamrasul Rehman Malek vs. Gujarat State Road Transport Corporation, 2015 ACJ 20, the Gujarat High Court ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 26 while dealing with the case where the driver had met with an accident due to his own negligence had opted to file claim petition under Motor Vehicle Act and obtained interim award .

under Section 140 of the M.V. Act on account of no fault liability. He approached the High Court with a prayer that he be permitted to approach the forum constituted under the Employees Compensation Act and the said contention was of negated by holding that once the claimant had elected to choose forum he could not turn around and question the rt award passed by the forum elected by him. It is apt to reproduced the relevant observations, which reads thus:-

"15. Moreover, in the case before us, the appellant got the benefit of "No Fault" Liability under section 140 of the M.V. Act. As pointed out by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. v. MASTAN , if a claimant by taking aid of Section 167 of the M. V. Act elects to take resort to the provisions of the M. V. Act he is precluded from resorting to the EC Act. The following observations of the Supreme Court are relevant and are quoted below:

"22. Section 167 of the 1988 Act 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 1923 Act, 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. Section 167 contains a non-ob-stante clause providing for such an option notwithstanding anything contained in the 1923 Act.

23. The 'doctrine of election' is a branch of 'rule of estoppel', 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. 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. Although there ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 27 are certain exceptions to the same rule but the same has no application in the instant case.

24. In Nagubai Ammal v. B. Shama Rao, 1956 AIR(SC) 593, it was stated :

"It is clear from the above observations that the maxim that .

a person cannot 'approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto."

25. In C. Beepathuma v. Velasari Shankaranara-yana Kadambolithaya, 1965 AIR(SC) 241, it was stated :

"The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland-

of "That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights rt that are inconsistent with it."

(see Maitland's lectures on Equity, Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :

"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."

(See also Prashant Ramachandra Deshpande v. Maruti Balaram Haibatti, 1995 Supp2 SCC 539).

26. Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti, 1998 6 SCC 507 stated that the law, thus :

"The doctrine of election is based on the rule of estoppel -

the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, 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. (See also Devasahayam (Dead) by LRs. v. P. Savithramma and Others, 2005 7 SCC 653)

27. The Respondent No. 1 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."

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16. Thus, I am unable to accept the submission of Mr Hakim and hold that after having received the benefit under Section 140 of the M. V. Act and having elected to proceed under Section 166 of the said Act, the petitioner is precluded from approaching the forum constituted under the provision of the EC Act."

(vii) In United India Insurance Co. Ltd. vs. Anthony Selvam and another, 2015 ACJ 1936, High Court of Madras held that the claim in accident arising out of the use of motor of vehicle was entitled to claim compensation either under Motor Vehicle or Workmen's Compensation Act, but not under both rt the Acts as the claimant could not enjoy double benefit and the employees could not be put to double liability. In addition to that it was held that once the driver had filed claim petition before the Commissioner, who had dismissed the claim application on the ground that he was not an employee under the owner he cannot thereafter file claim petition for compensation under the Motor Vehicle Act against the owner and insurance company and the relevant observations reads thus:-

"23. From an analysis of the above said judgments and the reasoning assigned by this court, the principles governing the election provided under Section 167 of the Motor Vehicles Act, 1988 and the corresponding bar can be deduced as follows:

1) In case the accident arises out of the use of the motor vehicle and it results in death or injury, the legal heirs of the deceased or the injured shall be entitled to claim compensation under the provisions of the Motor Vehicles Act, 1988 against the owner, driver and insurer of the offending vehicle on the basis of the tortuous liability which has been made statutory;

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2) In case the owner of the offending vehicle happens to be the employer of the deceased or injured, as the case may be, then the legal heirs of the deceased or the injured may make a claim either under the Motor Vehicles Act, 1988 or under the Employees' Compensation Act, 1923;

.

3) If the claim is made under the Employees' Compensation Act, 1923 and it is allowed by the Commissioner, then the claimants cannot make a claim under the Motor Vehicles Act, 1988;

4) If the claim made under the Employees' Compensation Act is dismissed holding that the deceased or the injured was not a workman under the alleged employer or that the accident did not arise out of and in the course of the of employment of the deceased or injured, then the dismissal of the claim under the Employees' Compensation Act, 1923 will not be a bar for making a claim under the Motor Vehicles Act, 1988;

rt

5) In case the claim is made at the first instance under the Motor Vehicles Act, 1988, there is no possibility of the claim being negatived in toto if the accident had resulted in death or permanent disability attracting the no-fault liability clauses found in the Motor Vehicles Act, 1988. In such cases, the claimants cannot make a claim under the Employees' Compensation Act, 1923 after getting an award in the Motor Accident Claims Tribunal;

6) In case the claim is made under the Motor Vehicles Act, 1988 against the owner of the offending vehicle, who was not the employer of the deceased or injured, as the case may be, and the driver or insurer of the said vehicle, after an award is passed by the Motor Accident Claims Tribunal, a claim against the employer of the deceased or the injured, as the case may be, under the Employees' Compensation Act, 1923, who was not a respondent in the claim will be maintainable, but after ascertaining the amount payable under the Employees' Compensation Act, 1923, the Commissioner shall direct the employer and its insurer to pay only the difference between the amount calculated under the Employees Compensation Act and the amount awarded by the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988, only if the compensation payable under the Employees' Compensation Act exceeds the amount awarded under the Motor Vehicle Act;

7) In case claim is made under the Employees' Compensation Act against the employer and an award is passed and a claim for compensation is made under the Motor Vehicles Act against the owner of the offending vehicle not being the employer of the deceased or injured ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 30 and against the driver and insurer of the offending vehicle on the basis of tort, then while determining the compensation under the Motor Vehicles Act, the amount obtained as compensation under the Employees' Compensation Act, 1923 shall be taken into account and that should be deducted. After deducting the same, the balance .

amount alone shall be awarded as compensation in the MCOP before the Motor Accident Claims Tribunal.

24. The above said principles ensure prevention of the claimants enjoying double benefit and the employers being put to double liability. Applying the above said principles, this court comes to the conclusion that the fact that the first respondent made a claim before the Commissioner for Workmen's Compensation under the Employees' Compensation Act, 1923 in W.C.No.219/2007 on the of file of the Commissioner No.2, Deputy Commissioner of Labour-II, Teynampet, Chennai and the same was dismissed on the ground that he was not an employee under the owner of the auto-rickshaw driven by the first respondent at the time of accident, would not be a rt bar for the maintainability of the claim made by him under the Motor Vehicles Act, 1988 against the second respondent and the appellant herein being the owner and insurer of the other vehicle, which is projected as the offending vehicle, namely lorry bearing Regn. No.TNG 7876. The order of the Commissioner for Workmen's Compensation marked as Ex.P8 will make it clear that the first respondent was not an employee under the owner of the auto-rickshaw involved in the accident and he was only a person who took the auto-rickshaw for hire and he alone was his master, since his liability towards the owner of the vehicle was only to pay particular amount per day as rent for the auto-rickshaw. The same was the reason why the Commissioner for Workmen's Compensation held that he was not an employee under owner of auto-rickshaw and that consequently he was not entitled to maintain a claim under the Employees' Compensation Act, 1923. As the claim made under the Employees' Compensation Act, 1923 was negatived holding that such a claim was not maintainable, the same will not provide a bar for making a claim under the Motor Vehicles Act, 1988 against the different set of persons, namely the owner and insurer of the offending vehicle, namely lorry bearing Regn. No.TNG 7876. Hence first and second points for determination are answered in favour of the claimant-respondent No.1 and against the insurance company, appellant herein."

28. It would be noticed that none of the judgments relied upon by the learned counsel for the petitioner visualises the factual situations obtaining in the instant case.

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29. It is not in dispute that the claimants on their own had never approached the Commissioner for grant of compensation and it is only pursuant to the notice issued to .

them by the Commissioner after receipt of information of accident from the employer vide letter dated 16.6.2004 that they approached and thereafter in late August filed their application for compensation in Form-F under Rule 20 of the of Workmen's Compensation Rule.

30. It is also not in dispute that earlier to that the rt claimants had consciously elected and opted to approach Tribunal for grant of compensation by filing an application under Section 166 of the Motor Vehicle Act on 24.8.2004.

31. The information imparted to the Commissioner under Workmen's Compensation Act with respect to the accident was in discharge of its duty of the employer under Workmen's Compensation Act.

32. Likewise, the information thereafter imparted by the Commissioner to the claimants with regard to the factum of accident and their entitlement to file a claim petition was further in discharge of its duties and obligations cast / fastened upon him under the provisions of the Act.

33. However, the action of the claimant in approaching the Tribunal with the claim petition was not on ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 32 account of any duty of obligation being cast upon them by any statutory or non statutory provision but was an election consciously made by them whereby they opted to approach .

the Tribunal with their claim petition out of their free will and violation. This was a conscious decision on their part and not one of compulsion.

34. The mere fact that the statement of the claimant of and also the award passed by the Commissioner was at an earlier point of time would hardly make any difference as the rt Terminus-a-quo in such like situation, as per my humble understanding would be the date on which the claimants consciously elected to choose the forum and in this case the terminus-a-quo would be 24.8.2004 when the petitioner consciously elected to approach the Tribunal by filing the claim petition under Section 167 of M.V. Act.

35. Therefore, in such circumstances to contend that the award obtained by the claimants before the Tribunal was on account of fraud or to contend that the State i.e. Respondents No. 1 and 2 themselves have contended before the Commissioner that the award obtained by the claimants before him had been obtained by fraud, would rather not even arise for consideration in the present case.

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36. However, at this stage, it needs to be clarified that even the Commissioner had no power to review his earlier order and after having announced his award, he ceased to .

have any jurisdiction and had become 'functus-officio' as he has no jurisdictional authority to review his order as the power of review is not inherent power and had otherwise not been conferred upon him by the statute i.e. Workmen's of Compensation Act.

37. It is, however, needs to be clarified that there is a rt distinction between powers of Court to review on merit and the procedural review where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, this judgment or order can be reviewed on merit only if the Court or quasi judicial authority is vested with the power of review by express provision or by necessary implications.

Whereas, procedural review belongs to a different categories.

In such a review, the Court of quasi judicial authority having jurisdiction to adjudicate proceeds to do so. But in doing so, ascertains whether it had committed a procedural illegality which goes to the route of the matter and invalidate the proceedings itself and consequently the order passed therein (Refer- M/s Sangum Tape Co. vs. Hans Raj, 2005 9 SCC 331 and ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 34 Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning & Weaving Mills Ltd. & Anr. 2005 13 SCC 777).

38. It needs to be clarified that accession review is used .

in two distinct senses, namely (i) procedural review - it is either inherent or implied in a Court or Tribunal whereby it can set aside a palpably erroneous order passed under any misapprehension and (ii) review on merits - where the error of sought to be correct is one of law and is apparent on the face of record. In the case of Patel Narshi Thakershi's case (supra), it rt was held that no review lies on merits unless statute specifically provides for it. Obviously, when a review is sought due to procedural defect, the inadvertent error committed by the Tribunal must be correct 'exddlojutas' to prevent the abuse of its process and such power inheres in every Court or Tribunal.

Section 169 of the M.V. Act, reads thus:-

"169. Procedure and powers of Claims Tribunal -(1) In holding any inquiry under Section 168, the claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."

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39. Applying the test laid down in Thakreshi's case supra, a review application before the Tribunal would be maintainable only when it is sought due to procedural defect .

or inadvertent error committed by the Tribunal to prevent the abuse of its process.

40. Therefore, even if the review filed by the petitioner before the Tribunal is held to be maintainable, the same would of have no power or effect on the merits of these cases, as this Court has categorically come to the conclusion that the rt claimants having consciously elected under Section 167 of the M.V. Act are only entitled then irrespective of it being comparatively less than the one passed by the Commissioner or even the interest therein being awarded at a lesser rate by the Commissioner.

41. Ms. Devyani Sharma, learned Counsel for the petitioner strenuously argued that once it is established on record that the deceased was the employee of the State i.e. Respondents No. 1 and 2, therefore, it is the State who alone should be held responsible and liable to pay the compensation and the same cannot be fastened upon the petitioner only on account of it having insured the vehicle.

42. I am afraid that such contention cannot be accepted. Whereas the claimants had exercised the option ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP 36 under Section 167 of the Motor Vehicle Act and an award passed in their favour whereby the owner of the vehicle is held to be liable then the insurance company being the indemnifier .

has obviously to pay the award amount. Incidentally, in this case, the opposite party is the State, would such a contention be available if the opposite party was an individual. Obviously, the answer would be in negative. That apart, there can be no of gainsaying that the very purpose of insuring the vehicle is to seek indemnity, in case, of unforeseen accident of the present rt kind.

43. In view of the aforesaid discussion, I find no merit in these petitions and the same are accordingly dismissed, leaving the parties to bear their own costs.

(Tarlok Singh Chauhan) Judge 18th November, 2016 (Sanjeev) ::: Downloaded on - 15/04/2017 21:34:13 :::HCHP

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Himachal Pradesh High Court