Smt. Abedabi Mohammed Mustaq And Others vs Femida Bano Sheikh Israil And Others on 1 August, 2017
31] Thus, the only ground on which the petition came to
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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
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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.