Bombay High Court
Anthony Lobo vs C.M. Merchant on 11 July, 1978
JUDGMENT Vaidya, J.
1. The above first appeal under Section 30 of the Workmen's Compensation Act, 1923 raises an interesting point with regard to the effect of Section 110AA of the Motor Vehicles Act, 1939, which runs as follows:
Notwithstanding anything contained in the Workmen's Compensation Act, 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 claim such compensation under either of those Acts but not under both.
2. The point which is raised in the appeal is that whereas the persons entitled to compensation under the Motor Vehicles Act are only the legal representatives of the deceased under Section 110A(1)(c), the persons entitled to compensation under the Workmen's Compensation Act are not the same as the legal representatives, inasmuch as even the dependents as defined in Section 2(1)(d) can make an application for compensation under Section 22 of the Workmen's Compensation Act and the dependents are not merely the legal representatives but also other relatives, including minor brothers or sisters as per Section 2(1)(d) of the Workmen's Compensation Act, 1923.
3. In the present case, it is not disputed that the deceased workman Basteao Anthony Lobo was the son of appellant No. 1 Anthony Lobo and the brother of. appellants Nos. 2, 3 and 4, who are minors represented by their father, next friend and natural guardian Anthony Lobo, all of whom claim to be dependents on the earnings of the deceased Basteao. It is also not disputed that Anthony Lobo had filed an application before the Motor Accidents Claims Tribunal claiming compensation not only on his own behalf but on behalf of his wife Anna, his son Marshall, who was eighteen years of age, as well as appellants Nos. 2, 3 and 4, who were shown as brothers and sister of the deceased and it is undisputed that in the case before the Motor Accidents Claims Tribunal the compensation was awarded to the father Anthony and the mother Anna.
4. The question in the present case is whether Anthony could file the application before the Commissioner for Workmen's Compensation, notwithstanding the award of compensation passed by the Motor Accidents Claims Tribunal and the provisions contained in Section 110AA of the Motor Vehicles Act, 1939.
5. In suport of his argument that Section 110AA does not bar the application made by Anthony as the guardian of the minor brothers and sister, who were dependents on the deceased Basteao, Mr. Mascarenhas submitted that under Section 42 of the Indian Succession Act, which applied to the deceased who died intestate, it was only the father who could succeed to the property; and, therefore, he was the only legal representative who could make the application under the Motor Vehicles Act, Section 110A(i)(c).
6. He, therefore, submitted that although the father got compensation and he may not be able to make another application in view of the provisions of Section 110AA of the Motor Vehicles Act, as the appellants Nos. 2 to 4 were not entitled to compensation, as legal representatives, under the Motor Vehicles Act, Section 110AA did not bar the present application on their behalf under Section 22 of the Workmen's Compensation Act, 1923.
7. In other words, what Mr. Mascarenhas contended was that although Anthony could not claim for himself compensation before the Motor Accidents Claims Tribunal as well as before the Commissioner for Workmen's Compensation, he could claim compensation on behalf of the minor brothers and sister of the deceased workman under the Workmen's Compensation Act.
8. The argument of Mr. Mascarenhas has to be rejected because of the words "notwithstanding anything contained in the Workmen's Compensation Act, 1923" in Section 110AA of the Motor Vehicles Act, 1939. The words "notwithstanding anything contained in the Workmen's Compensation Act, 1923" must also include the provisions with regard to the definition of the dependents contained in Section 2(1)(d) of that Act.
9. At least so far as the present case is concerned, since the application was made by appellant No. 1 on behalf of appellants Nos. 2 to 4 also, he could not file the present application on behalf of appellants Nos. 2 to 4 again under the Workmen's Compensation Act, even if Section 110AA is held to be not applicable because of the difference in the persons who are entitled to compensation under the two Acts, the general principle of res judicata must apply, as substantially the two applications are filed by one person, namely, the father Anthony Lobo.
10. Merely because before the Commissioner for Workmen's Compensation, he claims to be the guardian and before the Motor Accidents Claims Tribunal as representing appellants Nos. 2 to 4, it cannot be said that the parties in the two proceedings are different or that the decision of the Motor Accidents Claims Tribunal will not bar the claim before the Commissioner for Workmen's Compensation.
11. The father having chosen to make the application on behalf of himself and the other appellants before the Motor Accidents Claims Tribunal must be held to be barred from making an application before the Commissioner for Workmen's Compensation under Section 110AA of the Motor Vehicles Act or, in any event, under the general principles of res judicata.
12. In the result, the first appeal is dismissed. But in the facts and circumstances of the case, the parties to bear their own costs.