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Even otherwise, there is no force in the submissions raised by the learned counsel for the appellant-Insurance Company. Section 110A of Motor Vehicles Act, 1939 is applicable to a person who has two remedies against the joint tort feaser(s) while object of Section 3(5) of the Workmen's Compensation Act, 1923, is to save the employer from double jeopardy, meaning thereby, from multiplicity of litigation, one under the Workmen's Compensation Act, 1923, and other under the Motor Vehicles Act, 1939. Where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, 1923, he is not debarred from raising / claiming compensation under the Motor Vehicles Act, 1939, against the tort feaser. Present is a case where claimants are receiving compensation from the employer who is statutorily bound to pay the same on the death of deceased being his Master. This is separate relationship and liability and has nothing to do with the liability of a tort feasor under the Motor Vehicles Act, 1939. In the claim petition before the Claims Tribunal, employer and insurer of Tanker are not party, therefore, no claim has been raised against them. Submission raised by the appellant, if accepted, would mean that claimants should feel satisfied with whatever is paid to them under the Workmen's Compensation Act, 1923, by the employer, and thereby, tort feaser escaping liability under the Motor Vehicles Act, 1939, which remedy is independently available to the claimants as third party qua the offending vehicle.

Chief Justice Shri R.S. Pathak (as His Lordship then was) speaking for the Division Bench of High Court of Himachal Pradesh in Smt. Gayatri Devi v. Tani Ram and Ors. (AIR 1976 HP 75) said in paragraphs 13, 14, and 15 that:

"13. In Radhabai Bhikaji v. Baluram Daluram, 1970 Acc CJ 403 (M.P.) the Madhya Pradesh High Court held that duplication of proceedings occasioned by a claim instituted under the Workmen's Compensation Act and a claim filed under the Motor Vehicles Act was intended to be avoided and therefore, Section 3(5) of the Workmen's Compensation Act was enacted. With great respect, it seems difficult to accept the reasons which have found favour with that Court. When Section 3(5) of the Workmen's Compensation Act was enacted, the Legislature could not have had in mind the Motor Vehicles Act, which was enacted in 1939. Indeed, in 1923, there was not statute which provided for any other tribunal for entertaining claims in respect of such injuries or death. None has been pointed out to us. It seems that when Section 3(5) of the Workmen's Compensation Act was enacted, the Legislature could have had in mind the ordinary courts only as an alternative forum for entertaining a claim for damages. It will be noted in particular that Section 3(5) speaks of a `suit' and as has been well settled a suit is `a civil proceeding instituted by the presentation of a plaint'. That was laid down by the Privy Council in Hans Raj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 PC 63. A proceeding for compensation made under the Workmen's Compensation Act or under the Motor Vehicles Act cannot be confused with a suit. That ingredient of Section 3(5) has apparently not been noticed by the learned Judges in the cases cited before us. Moreover, when the Madhya Pradesh High Court in Radhabai Bhikhaji (supra) spoke of a duplication of proceedings it was apparently not pointed out to the learned Judges that there is no duplication in the true sense, and that the claim under the Workmen's Compensation act is based on a statutory liability while that under the Motor Vehicles Act rests on liability in tort. In Shardaben v. M.I. Pandya, 1971 Acc CJ 222 = (AIR 1971 Guj 51) the Gujarat High Court identified Claims Tribunal as a court, and that is also the view which appears to have been taken by the Madhya Pradesh High Court in Krishnan Gopal v. Dattatraya, 1971 Acc CJ 372 = (AIR 1972 Madh Pra 125) and again in Mangilal v. Union of India, 1973 Acc CJ 352 = (AIR 1974 Madh Pra 159) (FB). Reliance has been placed by the respondents on Jaswant Rai v. National Transport & General Co. Ltd., 1972 Acc CJ 21 (Punj), but in that case it was not specifically considered that a claim could not lie directly under the Workmen's Compensation act if a claim had already been made under the Motor Vehicles Act. If the decision in that case can be construed as the respondents would have it, I regret I am unable to agree with the law laid down by it. Following the view taken by the Madhya Pradesh High Court in Radhabai Bhikaji (supra), the Mysore High Court held in Yellubai Torappa Kadam v. M/s. Mujawar & Co., 1973 Acc CJ 242 (Mys) that a Claims Tribunal under the M.V. Act could be described as a `court of law' in the sense used in Section 3(5) of the Workmen's Compensation Act, and therefore, a claimant could file a claim either under the Workmen's Compensation act or under the Motor Vehicles Act, but not under both. The view proceeds on the assumption that because Section 110-F excludes a civil court from adjudicating on claims falling within the jurisdiction of the Claims Tribunals, it is intended that Claims Tribunals could substitute for civil courts and can therefore be regarded as `courts of law'. With respect, the assumption is not justified. The purpose of Section 110-F of the Motor Vehicles Act has already been discussed above, and in my opinion the exclusion of the civil court does not make a Claims Tribunal a court of law, notwithstanding that the Claims Tribunal exercises some of the powers of a civil court under the Code of Civil Procedure. I may also add that, as was observed by the Madhya Pradesh High Court in Radhabhai Bhikaji (supra), there is no material distinction relevant to the point before us between the expression `civil court' and the expression `court of law' used in Section 3(5) of the Workmen's Compensation Act.
14. Having regard to the manner in which the law has developed, to which reference has already been made, I find myself unable to accept the proposition that a claimant, to whom Section 110-AA of the Motor Vehicles Act does not apply, cannot claim compensation both under the Workmen's Compensation Act and the Motor Vehicles Act.
15. I am of the opinion that neither Section 3(5) nor Section 19 of the Workmen's Compensation Act operates as a bar to the consideration of the claim made by the appellants under the Motor Vehicles Act. That claim was maintainable before the Claims Tribunal, and therefore the present appeal is maintainable. The institution of a claim under the Workmen's Compensation act does not bar the present appeal."

Similar view has been taken by the Division Bench of this Court (Coram : R.C. Mankad & S.A. Shah, JJ) in Superintendent of Post Offices, Rajkot and Ors. v. Pratap Ghelabhai Maru and Ors. [1987 ACJ 674]. Relevant paragraph 3 of the said judgment is reproduced as under:

"3. Second ground which is urged on behalf of the appellant is that since the claimant has received compensation under the Workmen's Compensation Act, it is not open to him to claim compensation or damages from the appellants. We do not find any substance in this argument also. It is true that under section 110AA of the Motor Vehicles Act, the claimant could not have claimed compensation under the Workmen's Compensation Act and also damages from the owner and insurer of auto rickshaw. So far as the owner of auto rickshaw was concerned, the claimant had to make a choice either to claim compensation under the Workmen's Compensation Act or to claim damages under the general law. However, the question of making such election does not arise so far as third party is concerned. Claimant could not have claimed any compensation from the appellant under the Workmen's Compensation Act. Therefore, there is no question of making any choice as urged on behalf of the appellant. Reliance was sought to be placed on a decision of this court in Premier Insurance Co. v. Gambhirsing AIR 1975 Gujarat 133, in support of the argument that claimant is not entitled to claim damages he having obtained compensation under the Workmen's Compensation Act. This decision on which reliance is placed has no application to the facts of this case. That was a case in which two vehicles were not involved in the accident. The claimants in rash and negligent driving of motor vehicles driven by the driver employed by the owner who had engaged them as labourers. It was in the background of the facts which obtained in that case, that the court held that the claimants had to choose between two remedies available to them - one under the Workmen's Compensation Act and other under the general law. Therefore, the mere fact that the claimant has obtained compensation under the Workmen's Compensation Act does not disentitle him from claiming compensation or damage from the appellants. Therefore, the second ground urged on behalf of the appellants also fails."