Considering the ratio laid down in Dyavamma (supra) so also in
Mastan (supra), as discussed above, the facts from the present case are
different. In the present case, the applicants have filed claimed
compensation of Rs.10,10,000/- before the Motor Accident Claims
Tribunal, Kolhapur under section 166 of the Motor Vehicles Act. However,
the claim was taken as a claim under section 163A of the Motor Vehicles
Act and the Tribunal dismissed the claim on two grounds, i.e., the
deceased was driving in a rash and negligent manner and, therefore, as
he was rash and negligent, the claim cannot be granted under 163A and
also he was having a salary of more than Rs.40,000/- and so the
compensation cannot be given. As the claim was dismissed on this
ground, the other option was chosen to approach the Commissioner for
Workmen's Compensation under the Workmen's Compensation Act by the
claimants i.e., his widow, minor daughter and the parents of the deceased.
In fact, the finding given by the learned Member, Tribunal, Kolhapur, is
erroneous and illegal. Under section 163A, defence of negligence is not
available to the insurer. So also, the Tribunal should have restricted the
claim upto Rs.40,000/- as annual income of the deceased and accordingly,
fixed the compensation under section 163A itself. However, the said order
is not challenged in appeal. Instead, the other option of Workmen's
Compensation Act is preferred. I am in agreement with the view taken by
the learned Single Judge of the Andhra Pradesh High Court in case of
Kore Laxmi (supra), wherein the nature of the liability is correctly
distinguished. 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 these two provisions i.e., section 167
of the Motor Vehicles Act and section 3(5) of the Workmen's
Compensation Act is that the person should not get benefit of the
compensation twice out of the same cause.
27. Therefore, if the claim application 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 to.
Both the Workmen's Compensation Act and Motor Vehicles Act are social
legislations. The sections cannot be interpreted in such a manner so that
the object of the legislation will be frustrated. 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 Mastan (supra) or in
Dyavamma (supra) as the person is not receiving double benefit.
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 employeeemployer
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 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1342 OF 2014
with
CAF/1407/2014
The New India Assurance Co. Ltd.
Vs.
Ms.Bharati Adhik Patil & Ors.
CORAM: MRS.MRIDULA BHATKAR, J.
Dated: MAY 4, 2016
1. Rule. By consent of the parties, rule made returnable forthwith and
heard finally.
2. In this appeal, the judgment and award dated 31.7.2013 passed by
the learned Commissioner for Workmen's Compensation, Kolhapur, in
Application (WCA) No.25/B-5 of 2009 is challenged by the insurance
company.
BACKGROUND:
3. The deceased Adhik Patil, aged 31 years old, was working as a
driver on a tractor bearing No.MH-13J 8502 when the accident took place
i.e., on 24.1.2004. The tractor belonged to one Vishwas Sadashiv Yadav,
Respondent No.5, with whom the deceased was working as a driver. The
deceased was proceeding in the tractor from Nigdi towards village
Tawade, Taluka Shahuwadi, loaded with sugarcane. While taking U-turn,
one unknown truck coming from the opposite side gave dash to the tractor.
The tractor was upturned and the driver i.e., the deceased, died due to the
injuries SO his dependents i.e., his widow, his minor daughter and
parents filed claim under the Workmen's Compensation Act, 1923, as the
deceased was in the employment of respondent No.5 and he was getting
a salary of Rs.3,000/- per months plus Rs.1,500/- towards bhatta. In the
said matter, the employer did not file written statement. However, the
opponent No.1, i.e., the present appellant, filed written statement
challenging the maintainability of the claim under the Workmen's
Compensation Act (for short, 'WC Act') in addition to other challenges like
employer-employee relationship, income of the deceased at the time of
death, etc. The claimants stepped the box and gave evidence. So also,
the insurance company tendered evidence. After considering the oral as
well as documentary evidence of both the parties, the learned
Commissioner allowed the application partly and thereby directed
opponent No.2, the insurance company, with whom the tractor was insured
to pay the amount of compensation of Rs.4,11,900/- with interest @ 12%
p.a. and also 50% penalty.
4. The applicants earlier had filed the claim for Rs.10,10,000/- before
Motor Accident Claims Tribunal. Subsequently that claim was considered
under section 163A of the Motor Vehicles Act. However, the learned
Member of the Motor Accident Claims Tribunal, Kolhapur by its order
dated 6.9.2007, who entertained it under section 163A of the Motor
Vehicles Act held that the deceased was getting income of more than
Rs.40,000/- per annum which is a pre-requisite condition for the claim
under section 163A of the Motor Vehicles Act. Therefore, the Member,
MACT, Kolhapur, also held that the evidence on record revealed that the
accident took place due to the rash and negligent driving of the deceased
only and the earning is more than Rs.40,000/- per year and so,
compensation cannot be granted and hence, dismissed the claim
application.
5. Thereafter, the dependents filed claim application (WCA) No.25/C-8
of 2009 for Rs.4,58,662/- plus 50% penalty plus interest before the learned
Commissioner for Workmen's Compensation, Kolhapur. In the said
matter, the opponent No.1, the owner i.e., the employer and the opponent
No.2 / insurance company appeared. The insurance company raised the
point of maintainability that once a claim is preferred under the Motor
Vehicles Act for compensation, then, another subsequent claim cannot be
filed by the claimants under the Workmen's Compensation Act, as it is
barred under section 167. The said objection was turned down by the
learned Commissioner on the ground that the dependents or the claimants
did not receive any compensation from the Motor Accident Claims Tribunal
and therefore, his application under Workmen's Compensation Act for
compensation is maintainable as he is not receiving compensation from
two separate fora, so, the Commissioner partly allowed the claim.
6. Mr.Joshi, the learned Counsel for the appellant, has submitted that
the order passed by the learned Commissioner for Workmen's
Compensation is not maintainable in law when the applicants have already
filed application for compensation being Application (WCA) No.988 of
2014 before the Motor Accident Claims Tribunal, Kolhapur. Mr.Joshi,
challenged the order of the learned Commissioner on two points. One on
the point of maintainability in view of section 167 of the Motor Vehicles Act
and secondly on the ground of limitation. The accident took place on
24.1.2004, however, dependents filed the application under the
Workmen's Compensation Act in the year 2009. He submitted that section
167 is to be strictly interpreted. Section 167 states that when one claim is
instituted before either the Tribunal or the learned Commissioner, then, he
cannot file second claim petition before other forum. The section gives
option to the claimants to claim compensation either under the Motor
Vehicles Act or the Workmen's Compensation Act, 1923 but definitely not
under both the enactments. While elaborating his submissions, he relied
on section 3(5) of the Workmen's Compensation Act, 1923:
7. The learned Counsel argued that section 3(5) of the Workmen's
Compensation Act is a corresponding provision to section 167 of the Motor
Vehicles Act. He submitted that these sections impose restriction on the
claimants to elect the remedy amongst the two provided under the
respective statutes. The option given is about 'filing' or 'claiming' the
application for compensation, out of which only one can be chosen and
once it is filed, the second door is automatically closed. Right to file before
the other forum extinguishes due to the earlier proceedings. In support of
his submission, the learned Counsel relied on National Insurance
Company vs. Mastan & anr., 2006 (2) SCC 641. He relied on Oriental
Insurance Co. Ltd. vs. Dyamavva, 2013 (9) SCC 406 and submitted that
if the claimant has already exercised the option under the Workmen's
Compensation Act, then he could not be granted compensation under the
Motor Vehicles Act. The learned Counsel also relied on the judgment of
the Allahabad High Court in the case of New India Assurance Co. Ltd.
vs. MACT, Sitapur, Civil Revision No.1 of 2006 decided on 13.1.2014.
He submitted that in this case, the law laid down by the Supreme Court in
National Insurance Company vs. Mastan & anr. (supra) and Oriental
Insurance Co. Ltd. vs. Dyamavva (supra) is discussed and it is held that
if the claim is rejected under one enactment, no claim shall be
maintainable under the other enactment.
8. The learned Counsel submitted that in another case decided by the
Himachal Pradesh High Court in New India Assurance Co. Ltd. Vs.
Phulma & Ors. (2006 ACJ 2537), the same principle has been laid down.
He further relied on the judgments in N.M. Kashyap vs. Ratti Ram, 1986
ACJ 484 of the learned Single judge in the case of High Court of Delhi;
Shantabai Parshuram Mule vs. Sharda Prasadsingh, 1991 (2) Mh.L.J.
1542 of the Division Bench of the Bombay High Court; Jasuben
Devchandbhai Parmar vs. G.E. Board, 2001 ACJ 253 of Gujarat High
Court; and in Oriental Insurance Co. Ltd. vs. Gouribai, 1999 ACJ 1056
of Madras High Court.
9. On the point of limitation, the learned Counsel submitted that
whether the claim application of the claimants under the Workmen's
Compensation Act was barred by limitation as it is filed two years after the
date of the accident or whether the protection under section 14 of the
Limitation Act can be applied. Under section 10 of the Workmen's
Compensation Act, two years is the limitation to file application from the
date of the accident. The accident took place on 24.1.2004 and the claim
was filed on 1.4.2009. under section 14, if at all a litigant is diligently
prosecuting another proceeding, then, that benefit can be given. Under
section 14, if at all a party is proceeding in the Court which has no
jurisdiction, then that period is excluded but in the present case, the MACT
has jurisdiction to entertain such claim and therefore, relaxation or
exclusive of that period under section 14 is not to be given. In support of
this submission, he relied on the judgment of the Supreme Court in the
case of Deena vs. Bharat Singh, 2002 (6) SCC 336.
10. Mr.Kulkarni, appearing for the respondent Nos.1 to 4, in reply,
submitted that the case of the respondents / original claimants, cannot be
discarded on the ground of maintainability. His claim was not entertained
because it was not a valid claim under section 166 of the Motor Vehicles
Act. He submitted that the words mentioned in section 167 and also the
manner in which the section 166 of the Motor Vehicles Act are enacted as
also the object of the Act are to be taken into account and kept in mind.
Mr.Kulkarni has submitted that section 167 merely provides that o
claimants should take disadvantage of the beneficial legislation by making
separate claims under both the acts fro the same cause of action. The
claimants cannot be left without remedy in law when there is a provision of
compensation. Due to misunderstanding or inadvertence on the part of
the claimants, they may choose proceedings, however, overall legal
understanding of the class of persons from where the applicants have
come, is required to be taken into account. Mere filing of claim under the
Motor Vehicles Act cannot be considered as exercising an option. The
applicants have not received any compensation under the Motor Vehicles
Act and, therefore, entitled to receive compensation under the Workmen's
Compensation Act. He further submitted that there is no delay and the
benefit of section 14 of the Limitation Act is to be given since the claimants
were prosecuting the claim with due diligence, however, it was not
maintainable and, therefore, the claim is not time barred.
11. The learned Counsel relied on Smt.Neelabai M. Salunkhe & Ors.
vs. Shamrao T. Pawar & Ors., AIR 1995 Bom. 55. The learned Counsel
submitted that the old section 110AA placed bar to make claim under the
two acts. A learned Single Judge of the Bombay High Court has
discussed the section and held that the section is applicable only where
the death and bodily injury caused to the person gives rise to a valid claim
for compensation under the Motor Vehicles Act. The learned Counsel
then relied on the judgment of the Division Bench of the Karnataka High
Court in the case of D. Jayamma & Ors. vs. S.Govindaswamy & Ors.,
ILR 1982 KAR 550.
12. He further relied on the judgment of the Andhra Pradesh High Court
in the case of United India Insurance Company Ltd. vs. Kore Lakshmi
& Ors. reported in 2003 SCJ 203 and in the case of S. Lalitha vs. Zakir
Hussain & Ors., 2005 ACJ 1567. He also relied on the judgment of the
Punjab and Haryana High Court in the case of Smt.Tajender Kaur vs.
Surjeet Singh & ors., FAO No.1499 of 2002 decided on 30.7.2014 and of
Madhya Pradesh High Court in Raja vs. Ajay, 2008 ACJ 670.
13. The points of determination in this appeal arises as under:
(a) Whether in view of the bar under section 167 of the Motor
Vehicles Act and u/s 3(5) of the Workmen's Compensation Act, a
subsequent claim before either of the fora i.e., the Motor Accident
Claims Tribunal or the Commissioner for Workmen's Compensation,
is maintainable when the earlier claim is rejected by the other
forum?
(b) Whether the claim is barred by limitation under section 10 of
the Workmen's Compensation Act?
14. It is useful to reproduce section 167 of the Motor Vehicles Act and
section 3(3) of the Workmen's Compensation Act thus:
“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.
(emphasis added)”
“3(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.”
15. In the case of Shantabai Parshuram Mule vs. Sharda
Prasadsingh (supra), the application for compensation under Motor
Vehicles Act was preferred. However, the applicants had received
compensation from the employer who had moved before the
Commissioner for Workmen's Compensation and he suo motu paid some
amount of compensation to the applicants/accused. Objection was raised
that as they have received the amount under Workmen's Compensation
Act, a second application under Motor Vehicles Act is not maintainable
under the old section 110A of the Motor Vehicles Act. The Division Bench
while dealing with the issue held that the applicants never filed any claim
before the Commissioner for Workmen's Compensation so, though they
have received the amount which is offered by the employer, this is not
pursuant to the institution of the claim before the Commissioner for
Workmen's Compensation and, therefore, the Division Bench of the
Bombay High Court held that the second claim or application for
compensation before the Motor Accident Claims Tribunal is maintainable.
16. In the case of National Insurance Company vs. Mastan & anr.
(supra), the claimants did not file application under the Workmen's
Compensation Act but under the Motor Vehicles Act and they had received
the compensation from the employer who has voluntarily deposited the
amount. The claim was filed before the learned Commissioner for
Workmen's Compensation Act. Some amount was awarded. However,
being dissatisfied, the appeal for enhancement preferred before the High
Court was dismissed and then the said order was taken up to the
Supreme Court by way of Special Leave Petition where the issue was
whether an insured while defending the action initiated under Workmen's
Compensation Act is precluded from raising any defence available under
section 149(2) of the Motor Vehicles Act. While deciding this issue, the
Supreme Court held in para 22 and 23 thus:
“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-obstante 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 are certain exceptions to the same rule but the same
has no application in the instant case.”
17. In Oriental Insurance Co. Ltd. vs. Dyamavva (supra), though the
claim was not allowed under the two acts, however, the claim was not filed
under the Workmen's Compensation Act but the employer has suo motu
deposited the compensation under section 8 of the Workmen's
Compensation Act, 1923 and, therefore, the application under the Motor
Vehicles Act was considered as maintainable. However, it is also held in
that case that if the award is received under the Workmen's Compensation
Act then the claimant is precluded from raising the claim for compensation
under the Motor Vehicles Act, 1988. In New India Assurance Co. Ltd.
vs. MACT, Sitapur (supra), the claim filed before the learned
Commissioner for Workmen's Compensation was dismissed and
thereafter on the same cause of action, the application was made under
the Motor Vehicles Act and it is held as not maintainable.
18. In New India Assurance Co. Ltd. Vs. Phulma & Ors., a learned
Single Judge of the High Court of Himachal Pradesh has held that the
claimant is required to exercise his option and is not allowed to file claim
petitions under both the Acts.
19. In Oriental Insurance Co. Ltd. vs. Gouribai, (supra), while
interpreting the section 3(5A) of the Workmen's Compensation Act, the
words 'may claim such compensation” have been used in both the
statutes. The words clearly show that the person entitled to compensation
must take a conscious decision and opt for compensation under one
statute. It is further held that any provision which purports to take away or
abridge the right to claim compensation under statute must receive strict
interpretation.
20. In Deena vs. Bharat Singh, (supra), to bring a case under section
14, certain conditions are to be satisfied such as both the proceedings
prior and the latter, are to be prosecuted by the same party; prior
proceedings are to be prosecuted with due diligence and good faith; that
there was a defect of jurisdiction where the prior proceedings are filed and
the defect in the jurisdiction is of such a character that it is impossible for
the Court to entertain the suit or the application and it was expressly said
that section 14 will have no application in case where a suit is dismissed
after adjudication on its merits and not because the Court was unable to
entertain.
21. In Smt.Neelabai M. Salunkhe & Ors. vs. Shamrao T. Pawar &
Ors.(supra), the learned Single Judge of this Court relied on the judgment
of the High Court of Karnataka in B. Prabhakar vs. Smt.Bachima1
. In
Neelabai (supra) earlier, the Tribunal dismissed the said application under
the Motor Vehicles Act and so the claim was made under the Workmen's
Compensation Act. However, the learned Commissioner for Workmen's
Compensation dismissed the said application as not maintainable in law
by invoking section 110AA of the Motor Vehicles Act. Thus, the applicants
1 AIR 1984 KANT 225
first chose to file application before the Tribunal under the Motor Vehicles
Act and after getting dismissal, approached the learned Commissioner.
The facts in Neelabai (supra) and the case in hand are identical.
However, in the present case, the learned Commissioner for Workmen's
Compensation has allowed the claim and in Neelabai, it was rejected and
therefore, the High Court interpreted section 110AA and held that when
there was a question of negligence involved and it can hardly be said that
the death of the deceased gave rise to a valid claim for compensation and
therefore, there was no valid cause of action, the same was not
maintainable under the Motor Vehicles Act and therefore, the order of the
learned Commissioner was set aside with direction to try it again on merit.
22. In the case of D. Jayamma & Ors. vs. S.Govindaswamy & Ors.,
the Division Bench held that when the accident is entirely due to the rash
and negligent driving of the lorry by the deceased himself, then,
compensation under section 110A of the Motor Vehicles Act cannot be
claimed and so section 110AA of the Motor Vehicles Act cannot be
attracted. In Prabhakar vs. Bachima (supra) of the Karnataka High
Court, same view is taken as above.
23. In the case of United India Insurance Company Ltd. vs. Kore
Lakshmi & Ors. (supra), a learned Single Judge of the Andhra Pradesh
Court had an opportunity to interpret section 167 of the Motor Vehicles Act.
The learned Judge referred to all the earlier rulings and held that for laying
a claim under the Motor Vehicles Act, it is necessary to plead and prove
that the accident was the result of some actionable negligence of third
party. Unless such actionable negligence is proved on the part of the
respondent, it is not maintainable. Under the Motor Vehicles Act, unless
the owner is legally liable, the insurer who is an indemnifier is not liable to
pay compensation. The compensation payable under the Motor Vehicles
Act is on the basis of the negligence and the liability is on the basis of tort
and whereas under the Workmen's Compensation Act, the compensation
payable is on the basis of strict liability, which is imposed by the statute. It
is held in para 28 and 30 thus:
“28. The provisions contained in Chapters X, XI and XII of the MV
Act and the provisions of the WC Act, are pieces of social welfare
legislations. Upon perusal of the provisions of the MV Act and the
WC Act, it is clear that under the MV Act, the compensation payable
is on the basis of negligence and the liability is on the basis of tort,
with an exception to Section 140 of the MV Act, and whereas under
the WC Act, the compensation payable is on the basis of strict
liability, which is imposed by the statute itself.
30. In the facts and circumstances of the present case, I am of the
opinion that the claimants have mistakenly moved the Claims
Tribunal under the MV Act. It does not mean that the claimants
have elected a forum. In the facts and circumstances of the case,
even though the claimants/respondents filed claim petition before
the Claims Tribunal under the MV Act, it does not bare them from
making a claim before the Commissioner under the WC Act. The
claimants are at liberty to file claim petition before the Commissioner
for Workmen's Compensation once again to seek redressal of their
claim.”
24. In S. Lalitha vs. Zakir Hussain & Ors. (supra), the similar view
has been taken.
25. In Raja vs. Ajay (supra), it was held that when the application
under the Motor Vehicles Act is dismissed as not maintainable and thus,
the proceedings which were filed were without jurisdiction, ab initio, the
dismissal was on a technical ground and therefore the second application
under the Motor Vehicles Act was allowed.
26. Considering the ratio laid down in Dyavamma (supra) so also in
Mastan (supra), as discussed above, the facts from the present case are
different. In the present case, the applicants have filed claimed
compensation of Rs.10,10,000/- before the Motor Accident Claims
Tribunal, Kolhapur under section 166 of the Motor Vehicles Act. However,
the claim was taken as a claim under section 163A of the Motor Vehicles
Act and the Tribunal dismissed the claim on two grounds, i.e., the
deceased was driving in a rash and negligent manner and, therefore, as
he was rash and negligent, the claim cannot be granted under 163A and
also he was having a salary of more than Rs.40,000/- and so the
compensation cannot be given. As the claim was dismissed on this
ground, the other option was chosen to approach the Commissioner for
Workmen's Compensation under the Workmen's Compensation Act by the
claimants i.e., his widow, minor daughter and the parents of the deceased.
In fact, the finding given by the learned Member, Tribunal, Kolhapur, is
erroneous and illegal. Under section 163A, defence of negligence is not
available to the insurer. So also, the Tribunal should have restricted the
claim upto Rs.40,000/- as annual income of the deceased and accordingly,
fixed the compensation under section 163A itself. However, the said order
is not challenged in appeal. Instead, the other option of Workmen's
Compensation Act is preferred. I am in agreement with the view taken by
the learned Single Judge of the Andhra Pradesh High Court in case of
Kore Laxmi (supra), wherein the nature of the liability is correctly
distinguished. 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 these two provisions i.e., section 167
of the Motor Vehicles Act and section 3(5) of the Workmen's
Compensation Act is that the person should not get benefit of the
compensation twice out of the same cause.
27. Therefore, if the claim application 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 to.
Both the Workmen's Compensation Act and Motor Vehicles Act are social
legislations. The sections cannot be interpreted in such a manner so that
the object of the legislation will be frustrated. 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 Mastan (supra) or in
Dyavamma (supra) as the person is not receiving double benefit.
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 employeeemployer
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 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.
29. The second point is made on the ground of limitation under section
10 of the Workmen's Compensation Act. The relevant provisions from
section 10 of Workmen's Compensation Act reads thus:
“10 Notice and claim. (1) No claim for compensation shall be
entertained by a Commissioner unless notice of the accident
has been given in the manner hereinafter provided as soon as
practicable after the happening thereof and unless the claim is
preferred before him within two years of the occurrence of the
accident or in case of death within two years from the date of
death:......
…
….
….
Provided further that the Commissioner may entertain and
decide any claim to compensation in any case notwithstanding
that the notice has not been given, or the claim has not been
preferred, in due time as provided in this sub-section, if he is
satisfied that the failure so to give the notice or prefer the
claim, as the case may be, was due to sufficient cause.
…........
…........”
(emphasis added)
30. Thus, if the claimant has to file application under the Workmen's
Compensation Act, within the period of two years after the date of the
accident. In the present case, the accident has taken place on 24.1.2004
and the application under the Workmen's Compensation Act was filed on
1.4.2009 bearing application (WCA) No.25 / B – 5 of 2009. Thus, there is
a delay of more than 3 years. However, the MACP claim was filed in the
same year i.e., MACP No.388 of 2004 and it was dismissed on 6.9.2007
by Member, Motor Accident Claims Tribunal, Kolhapur. Thus, the claim
was filed after one year and six months after dismissal of the claim
application by MACT. The learned Commissioner has given the benefit of
section 14 of the Limitation Act, 1963 to the claimants by holding that as
the claimants had filed claim before the Tribunal, they were diligent in
prosecuting the said claim. The main contention of the learned Counsel
for the insurance company was that the Tribunal cannot be considered a
forum without jurisdiction. Section 14 of the Limitation Act is about
exclusion of time of proceeding bonafide in court without jurisdiction.
31. It is true that Motor Accident Claims Tribunal is a forum of proper
jurisdiction for relief of compensation in accident claims and, therefore, as
argued by Mr.Joshi, the learned Counsel, the benefit of section 14 of
Limitation Act cannot be given to the applicants in the case. However, the
section is applicable to the cases where the proceedings are pursued
before the Court without jurisdiction. In order to invoke the proviso of
section 10 of the Workmen's Compensation Act it is not necessary for the
claimants to make a separate application for condonation of delay if the
applicants have mentioned the cause of delay, then, and if it is found true,
then, in the absence of application, the delay can be condoned. I support
of these observations, I rely on the finding given by the learned Single
Judge of this Court in the case of Department of Telecommunication,
Nanded vs. Deelip s/o. Hari Mogle2
thus:
2 2007(6) Mh.L.J. 596
“5. … This proviso appended to sub-clause (1) of section 10
gives discretionary power to the Commissioner in an appropriate
case to consider the application irrespective of delay. The provision
enumerated under section 10 does not require any separate
application to be filed for condonation of the delay. In the present
case, the Commissioner has duly considered the reasons and has
exercised his discretion in the matter of entertaining the application
beyond of 2 years. ….”
The case of the present applicants is covered not under section 14 but
under the proviso of section 10 of the Workmen's Compensation Act. The
applicants have shown a satisfactory cause to condone delay as the
matter was pending before the Motor Accident Claims Tribunal. Hence,
the application is within limitation.
32. In the circumstances of the case, the appeal is dismissed.
(MRIDULA BHATKAR, J.)
33. At this stage, Mr.Joshi submitted that he wants to challenge the
order before the honourable Supreme Court and prayed for stay of the
order for 12 weeks due to summer vacation. Accordingly, the operation of
the order is stayed till 30th July, 2016.
34. The learned counsel for the respondent/original claimant submitted
that original claimants be allowed to withdraw 25% of the amount.
Mr.Joshi opposed this prayer. However, the original claimants are allowed
to withdraw 25% of the amount accumulated as on today upon furnishing
usual undertaking.
(MRIDULA BHATKAR, J.)
Print Page
Mastan (supra), as discussed above, the facts from the present case are
different. In the present case, the applicants have filed claimed
compensation of Rs.10,10,000/- before the Motor Accident Claims
Tribunal, Kolhapur under section 166 of the Motor Vehicles Act. However,
the claim was taken as a claim under section 163A of the Motor Vehicles
Act and the Tribunal dismissed the claim on two grounds, i.e., the
deceased was driving in a rash and negligent manner and, therefore, as
he was rash and negligent, the claim cannot be granted under 163A and
also he was having a salary of more than Rs.40,000/- and so the
compensation cannot be given. As the claim was dismissed on this
ground, the other option was chosen to approach the Commissioner for
Workmen's Compensation under the Workmen's Compensation Act by the
claimants i.e., his widow, minor daughter and the parents of the deceased.
In fact, the finding given by the learned Member, Tribunal, Kolhapur, is
erroneous and illegal. Under section 163A, defence of negligence is not
available to the insurer. So also, the Tribunal should have restricted the
claim upto Rs.40,000/- as annual income of the deceased and accordingly,
fixed the compensation under section 163A itself. However, the said order
is not challenged in appeal. Instead, the other option of Workmen's
Compensation Act is preferred. I am in agreement with the view taken by
the learned Single Judge of the Andhra Pradesh High Court in case of
Kore Laxmi (supra), wherein the nature of the liability is correctly
distinguished. 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 these two provisions i.e., section 167
of the Motor Vehicles Act and section 3(5) of the Workmen's
Compensation Act is that the person should not get benefit of the
compensation twice out of the same cause.
27. Therefore, if the claim application 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 to.
Both the Workmen's Compensation Act and Motor Vehicles Act are social
legislations. The sections cannot be interpreted in such a manner so that
the object of the legislation will be frustrated. 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 Mastan (supra) or in
Dyavamma (supra) as the person is not receiving double benefit.
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 employeeemployer
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 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1342 OF 2014
with
CAF/1407/2014
The New India Assurance Co. Ltd.
Vs.
Ms.Bharati Adhik Patil & Ors.
CORAM: MRS.MRIDULA BHATKAR, J.
Dated: MAY 4, 2016
1. Rule. By consent of the parties, rule made returnable forthwith and
heard finally.
2. In this appeal, the judgment and award dated 31.7.2013 passed by
the learned Commissioner for Workmen's Compensation, Kolhapur, in
Application (WCA) No.25/B-5 of 2009 is challenged by the insurance
company.
BACKGROUND:
3. The deceased Adhik Patil, aged 31 years old, was working as a
driver on a tractor bearing No.MH-13J 8502 when the accident took place
i.e., on 24.1.2004. The tractor belonged to one Vishwas Sadashiv Yadav,
Respondent No.5, with whom the deceased was working as a driver. The
deceased was proceeding in the tractor from Nigdi towards village
Tawade, Taluka Shahuwadi, loaded with sugarcane. While taking U-turn,
one unknown truck coming from the opposite side gave dash to the tractor.
The tractor was upturned and the driver i.e., the deceased, died due to the
injuries SO his dependents i.e., his widow, his minor daughter and
parents filed claim under the Workmen's Compensation Act, 1923, as the
deceased was in the employment of respondent No.5 and he was getting
a salary of Rs.3,000/- per months plus Rs.1,500/- towards bhatta. In the
said matter, the employer did not file written statement. However, the
opponent No.1, i.e., the present appellant, filed written statement
challenging the maintainability of the claim under the Workmen's
Compensation Act (for short, 'WC Act') in addition to other challenges like
employer-employee relationship, income of the deceased at the time of
death, etc. The claimants stepped the box and gave evidence. So also,
the insurance company tendered evidence. After considering the oral as
well as documentary evidence of both the parties, the learned
Commissioner allowed the application partly and thereby directed
opponent No.2, the insurance company, with whom the tractor was insured
to pay the amount of compensation of Rs.4,11,900/- with interest @ 12%
p.a. and also 50% penalty.
4. The applicants earlier had filed the claim for Rs.10,10,000/- before
Motor Accident Claims Tribunal. Subsequently that claim was considered
under section 163A of the Motor Vehicles Act. However, the learned
Member of the Motor Accident Claims Tribunal, Kolhapur by its order
dated 6.9.2007, who entertained it under section 163A of the Motor
Vehicles Act held that the deceased was getting income of more than
Rs.40,000/- per annum which is a pre-requisite condition for the claim
under section 163A of the Motor Vehicles Act. Therefore, the Member,
MACT, Kolhapur, also held that the evidence on record revealed that the
accident took place due to the rash and negligent driving of the deceased
only and the earning is more than Rs.40,000/- per year and so,
compensation cannot be granted and hence, dismissed the claim
application.
5. Thereafter, the dependents filed claim application (WCA) No.25/C-8
of 2009 for Rs.4,58,662/- plus 50% penalty plus interest before the learned
Commissioner for Workmen's Compensation, Kolhapur. In the said
matter, the opponent No.1, the owner i.e., the employer and the opponent
No.2 / insurance company appeared. The insurance company raised the
point of maintainability that once a claim is preferred under the Motor
Vehicles Act for compensation, then, another subsequent claim cannot be
filed by the claimants under the Workmen's Compensation Act, as it is
barred under section 167. The said objection was turned down by the
learned Commissioner on the ground that the dependents or the claimants
did not receive any compensation from the Motor Accident Claims Tribunal
and therefore, his application under Workmen's Compensation Act for
compensation is maintainable as he is not receiving compensation from
two separate fora, so, the Commissioner partly allowed the claim.
6. Mr.Joshi, the learned Counsel for the appellant, has submitted that
the order passed by the learned Commissioner for Workmen's
Compensation is not maintainable in law when the applicants have already
filed application for compensation being Application (WCA) No.988 of
2014 before the Motor Accident Claims Tribunal, Kolhapur. Mr.Joshi,
challenged the order of the learned Commissioner on two points. One on
the point of maintainability in view of section 167 of the Motor Vehicles Act
and secondly on the ground of limitation. The accident took place on
24.1.2004, however, dependents filed the application under the
Workmen's Compensation Act in the year 2009. He submitted that section
167 is to be strictly interpreted. Section 167 states that when one claim is
instituted before either the Tribunal or the learned Commissioner, then, he
cannot file second claim petition before other forum. The section gives
option to the claimants to claim compensation either under the Motor
Vehicles Act or the Workmen's Compensation Act, 1923 but definitely not
under both the enactments. While elaborating his submissions, he relied
on section 3(5) of the Workmen's Compensation Act, 1923:
7. The learned Counsel argued that section 3(5) of the Workmen's
Compensation Act is a corresponding provision to section 167 of the Motor
Vehicles Act. He submitted that these sections impose restriction on the
claimants to elect the remedy amongst the two provided under the
respective statutes. The option given is about 'filing' or 'claiming' the
application for compensation, out of which only one can be chosen and
once it is filed, the second door is automatically closed. Right to file before
the other forum extinguishes due to the earlier proceedings. In support of
his submission, the learned Counsel relied on National Insurance
Company vs. Mastan & anr., 2006 (2) SCC 641. He relied on Oriental
Insurance Co. Ltd. vs. Dyamavva, 2013 (9) SCC 406 and submitted that
if the claimant has already exercised the option under the Workmen's
Compensation Act, then he could not be granted compensation under the
Motor Vehicles Act. The learned Counsel also relied on the judgment of
the Allahabad High Court in the case of New India Assurance Co. Ltd.
vs. MACT, Sitapur, Civil Revision No.1 of 2006 decided on 13.1.2014.
He submitted that in this case, the law laid down by the Supreme Court in
National Insurance Company vs. Mastan & anr. (supra) and Oriental
Insurance Co. Ltd. vs. Dyamavva (supra) is discussed and it is held that
if the claim is rejected under one enactment, no claim shall be
maintainable under the other enactment.
8. The learned Counsel submitted that in another case decided by the
Himachal Pradesh High Court in New India Assurance Co. Ltd. Vs.
Phulma & Ors. (2006 ACJ 2537), the same principle has been laid down.
He further relied on the judgments in N.M. Kashyap vs. Ratti Ram, 1986
ACJ 484 of the learned Single judge in the case of High Court of Delhi;
Shantabai Parshuram Mule vs. Sharda Prasadsingh, 1991 (2) Mh.L.J.
1542 of the Division Bench of the Bombay High Court; Jasuben
Devchandbhai Parmar vs. G.E. Board, 2001 ACJ 253 of Gujarat High
Court; and in Oriental Insurance Co. Ltd. vs. Gouribai, 1999 ACJ 1056
of Madras High Court.
9. On the point of limitation, the learned Counsel submitted that
whether the claim application of the claimants under the Workmen's
Compensation Act was barred by limitation as it is filed two years after the
date of the accident or whether the protection under section 14 of the
Limitation Act can be applied. Under section 10 of the Workmen's
Compensation Act, two years is the limitation to file application from the
date of the accident. The accident took place on 24.1.2004 and the claim
was filed on 1.4.2009. under section 14, if at all a litigant is diligently
prosecuting another proceeding, then, that benefit can be given. Under
section 14, if at all a party is proceeding in the Court which has no
jurisdiction, then that period is excluded but in the present case, the MACT
has jurisdiction to entertain such claim and therefore, relaxation or
exclusive of that period under section 14 is not to be given. In support of
this submission, he relied on the judgment of the Supreme Court in the
case of Deena vs. Bharat Singh, 2002 (6) SCC 336.
10. Mr.Kulkarni, appearing for the respondent Nos.1 to 4, in reply,
submitted that the case of the respondents / original claimants, cannot be
discarded on the ground of maintainability. His claim was not entertained
because it was not a valid claim under section 166 of the Motor Vehicles
Act. He submitted that the words mentioned in section 167 and also the
manner in which the section 166 of the Motor Vehicles Act are enacted as
also the object of the Act are to be taken into account and kept in mind.
Mr.Kulkarni has submitted that section 167 merely provides that o
claimants should take disadvantage of the beneficial legislation by making
separate claims under both the acts fro the same cause of action. The
claimants cannot be left without remedy in law when there is a provision of
compensation. Due to misunderstanding or inadvertence on the part of
the claimants, they may choose proceedings, however, overall legal
understanding of the class of persons from where the applicants have
come, is required to be taken into account. Mere filing of claim under the
Motor Vehicles Act cannot be considered as exercising an option. The
applicants have not received any compensation under the Motor Vehicles
Act and, therefore, entitled to receive compensation under the Workmen's
Compensation Act. He further submitted that there is no delay and the
benefit of section 14 of the Limitation Act is to be given since the claimants
were prosecuting the claim with due diligence, however, it was not
maintainable and, therefore, the claim is not time barred.
11. The learned Counsel relied on Smt.Neelabai M. Salunkhe & Ors.
vs. Shamrao T. Pawar & Ors., AIR 1995 Bom. 55. The learned Counsel
submitted that the old section 110AA placed bar to make claim under the
two acts. A learned Single Judge of the Bombay High Court has
discussed the section and held that the section is applicable only where
the death and bodily injury caused to the person gives rise to a valid claim
for compensation under the Motor Vehicles Act. The learned Counsel
then relied on the judgment of the Division Bench of the Karnataka High
Court in the case of D. Jayamma & Ors. vs. S.Govindaswamy & Ors.,
ILR 1982 KAR 550.
12. He further relied on the judgment of the Andhra Pradesh High Court
in the case of United India Insurance Company Ltd. vs. Kore Lakshmi
& Ors. reported in 2003 SCJ 203 and in the case of S. Lalitha vs. Zakir
Hussain & Ors., 2005 ACJ 1567. He also relied on the judgment of the
Punjab and Haryana High Court in the case of Smt.Tajender Kaur vs.
Surjeet Singh & ors., FAO No.1499 of 2002 decided on 30.7.2014 and of
Madhya Pradesh High Court in Raja vs. Ajay, 2008 ACJ 670.
13. The points of determination in this appeal arises as under:
(a) Whether in view of the bar under section 167 of the Motor
Vehicles Act and u/s 3(5) of the Workmen's Compensation Act, a
subsequent claim before either of the fora i.e., the Motor Accident
Claims Tribunal or the Commissioner for Workmen's Compensation,
is maintainable when the earlier claim is rejected by the other
forum?
(b) Whether the claim is barred by limitation under section 10 of
the Workmen's Compensation Act?
14. It is useful to reproduce section 167 of the Motor Vehicles Act and
section 3(3) of the Workmen's Compensation Act thus:
“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.
(emphasis added)”
“3(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.”
15. In the case of Shantabai Parshuram Mule vs. Sharda
Prasadsingh (supra), the application for compensation under Motor
Vehicles Act was preferred. However, the applicants had received
compensation from the employer who had moved before the
Commissioner for Workmen's Compensation and he suo motu paid some
amount of compensation to the applicants/accused. Objection was raised
that as they have received the amount under Workmen's Compensation
Act, a second application under Motor Vehicles Act is not maintainable
under the old section 110A of the Motor Vehicles Act. The Division Bench
while dealing with the issue held that the applicants never filed any claim
before the Commissioner for Workmen's Compensation so, though they
have received the amount which is offered by the employer, this is not
pursuant to the institution of the claim before the Commissioner for
Workmen's Compensation and, therefore, the Division Bench of the
Bombay High Court held that the second claim or application for
compensation before the Motor Accident Claims Tribunal is maintainable.
16. In the case of National Insurance Company vs. Mastan & anr.
(supra), the claimants did not file application under the Workmen's
Compensation Act but under the Motor Vehicles Act and they had received
the compensation from the employer who has voluntarily deposited the
amount. The claim was filed before the learned Commissioner for
Workmen's Compensation Act. Some amount was awarded. However,
being dissatisfied, the appeal for enhancement preferred before the High
Court was dismissed and then the said order was taken up to the
Supreme Court by way of Special Leave Petition where the issue was
whether an insured while defending the action initiated under Workmen's
Compensation Act is precluded from raising any defence available under
section 149(2) of the Motor Vehicles Act. While deciding this issue, the
Supreme Court held in para 22 and 23 thus:
“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-obstante 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 are certain exceptions to the same rule but the same
has no application in the instant case.”
17. In Oriental Insurance Co. Ltd. vs. Dyamavva (supra), though the
claim was not allowed under the two acts, however, the claim was not filed
under the Workmen's Compensation Act but the employer has suo motu
deposited the compensation under section 8 of the Workmen's
Compensation Act, 1923 and, therefore, the application under the Motor
Vehicles Act was considered as maintainable. However, it is also held in
that case that if the award is received under the Workmen's Compensation
Act then the claimant is precluded from raising the claim for compensation
under the Motor Vehicles Act, 1988. In New India Assurance Co. Ltd.
vs. MACT, Sitapur (supra), the claim filed before the learned
Commissioner for Workmen's Compensation was dismissed and
thereafter on the same cause of action, the application was made under
the Motor Vehicles Act and it is held as not maintainable.
18. In New India Assurance Co. Ltd. Vs. Phulma & Ors., a learned
Single Judge of the High Court of Himachal Pradesh has held that the
claimant is required to exercise his option and is not allowed to file claim
petitions under both the Acts.
19. In Oriental Insurance Co. Ltd. vs. Gouribai, (supra), while
interpreting the section 3(5A) of the Workmen's Compensation Act, the
words 'may claim such compensation” have been used in both the
statutes. The words clearly show that the person entitled to compensation
must take a conscious decision and opt for compensation under one
statute. It is further held that any provision which purports to take away or
abridge the right to claim compensation under statute must receive strict
interpretation.
20. In Deena vs. Bharat Singh, (supra), to bring a case under section
14, certain conditions are to be satisfied such as both the proceedings
prior and the latter, are to be prosecuted by the same party; prior
proceedings are to be prosecuted with due diligence and good faith; that
there was a defect of jurisdiction where the prior proceedings are filed and
the defect in the jurisdiction is of such a character that it is impossible for
the Court to entertain the suit or the application and it was expressly said
that section 14 will have no application in case where a suit is dismissed
after adjudication on its merits and not because the Court was unable to
entertain.
21. In Smt.Neelabai M. Salunkhe & Ors. vs. Shamrao T. Pawar &
Ors.(supra), the learned Single Judge of this Court relied on the judgment
of the High Court of Karnataka in B. Prabhakar vs. Smt.Bachima1
. In
Neelabai (supra) earlier, the Tribunal dismissed the said application under
the Motor Vehicles Act and so the claim was made under the Workmen's
Compensation Act. However, the learned Commissioner for Workmen's
Compensation dismissed the said application as not maintainable in law
by invoking section 110AA of the Motor Vehicles Act. Thus, the applicants
1 AIR 1984 KANT 225
first chose to file application before the Tribunal under the Motor Vehicles
Act and after getting dismissal, approached the learned Commissioner.
The facts in Neelabai (supra) and the case in hand are identical.
However, in the present case, the learned Commissioner for Workmen's
Compensation has allowed the claim and in Neelabai, it was rejected and
therefore, the High Court interpreted section 110AA and held that when
there was a question of negligence involved and it can hardly be said that
the death of the deceased gave rise to a valid claim for compensation and
therefore, there was no valid cause of action, the same was not
maintainable under the Motor Vehicles Act and therefore, the order of the
learned Commissioner was set aside with direction to try it again on merit.
22. In the case of D. Jayamma & Ors. vs. S.Govindaswamy & Ors.,
the Division Bench held that when the accident is entirely due to the rash
and negligent driving of the lorry by the deceased himself, then,
compensation under section 110A of the Motor Vehicles Act cannot be
claimed and so section 110AA of the Motor Vehicles Act cannot be
attracted. In Prabhakar vs. Bachima (supra) of the Karnataka High
Court, same view is taken as above.
23. In the case of United India Insurance Company Ltd. vs. Kore
Lakshmi & Ors. (supra), a learned Single Judge of the Andhra Pradesh
Court had an opportunity to interpret section 167 of the Motor Vehicles Act.
The learned Judge referred to all the earlier rulings and held that for laying
a claim under the Motor Vehicles Act, it is necessary to plead and prove
that the accident was the result of some actionable negligence of third
party. Unless such actionable negligence is proved on the part of the
respondent, it is not maintainable. Under the Motor Vehicles Act, unless
the owner is legally liable, the insurer who is an indemnifier is not liable to
pay compensation. The compensation payable under the Motor Vehicles
Act is on the basis of the negligence and the liability is on the basis of tort
and whereas under the Workmen's Compensation Act, the compensation
payable is on the basis of strict liability, which is imposed by the statute. It
is held in para 28 and 30 thus:
“28. The provisions contained in Chapters X, XI and XII of the MV
Act and the provisions of the WC Act, are pieces of social welfare
legislations. Upon perusal of the provisions of the MV Act and the
WC Act, it is clear that under the MV Act, the compensation payable
is on the basis of negligence and the liability is on the basis of tort,
with an exception to Section 140 of the MV Act, and whereas under
the WC Act, the compensation payable is on the basis of strict
liability, which is imposed by the statute itself.
30. In the facts and circumstances of the present case, I am of the
opinion that the claimants have mistakenly moved the Claims
Tribunal under the MV Act. It does not mean that the claimants
have elected a forum. In the facts and circumstances of the case,
even though the claimants/respondents filed claim petition before
the Claims Tribunal under the MV Act, it does not bare them from
making a claim before the Commissioner under the WC Act. The
claimants are at liberty to file claim petition before the Commissioner
for Workmen's Compensation once again to seek redressal of their
claim.”
24. In S. Lalitha vs. Zakir Hussain & Ors. (supra), the similar view
has been taken.
25. In Raja vs. Ajay (supra), it was held that when the application
under the Motor Vehicles Act is dismissed as not maintainable and thus,
the proceedings which were filed were without jurisdiction, ab initio, the
dismissal was on a technical ground and therefore the second application
under the Motor Vehicles Act was allowed.
26. Considering the ratio laid down in Dyavamma (supra) so also in
Mastan (supra), as discussed above, the facts from the present case are
different. In the present case, the applicants have filed claimed
compensation of Rs.10,10,000/- before the Motor Accident Claims
Tribunal, Kolhapur under section 166 of the Motor Vehicles Act. However,
the claim was taken as a claim under section 163A of the Motor Vehicles
Act and the Tribunal dismissed the claim on two grounds, i.e., the
deceased was driving in a rash and negligent manner and, therefore, as
he was rash and negligent, the claim cannot be granted under 163A and
also he was having a salary of more than Rs.40,000/- and so the
compensation cannot be given. As the claim was dismissed on this
ground, the other option was chosen to approach the Commissioner for
Workmen's Compensation under the Workmen's Compensation Act by the
claimants i.e., his widow, minor daughter and the parents of the deceased.
In fact, the finding given by the learned Member, Tribunal, Kolhapur, is
erroneous and illegal. Under section 163A, defence of negligence is not
available to the insurer. So also, the Tribunal should have restricted the
claim upto Rs.40,000/- as annual income of the deceased and accordingly,
fixed the compensation under section 163A itself. However, the said order
is not challenged in appeal. Instead, the other option of Workmen's
Compensation Act is preferred. I am in agreement with the view taken by
the learned Single Judge of the Andhra Pradesh High Court in case of
Kore Laxmi (supra), wherein the nature of the liability is correctly
distinguished. 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 these two provisions i.e., section 167
of the Motor Vehicles Act and section 3(5) of the Workmen's
Compensation Act is that the person should not get benefit of the
compensation twice out of the same cause.
27. Therefore, if the claim application 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 to.
Both the Workmen's Compensation Act and Motor Vehicles Act are social
legislations. The sections cannot be interpreted in such a manner so that
the object of the legislation will be frustrated. 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 Mastan (supra) or in
Dyavamma (supra) as the person is not receiving double benefit.
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 employeeemployer
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 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.
29. The second point is made on the ground of limitation under section
10 of the Workmen's Compensation Act. The relevant provisions from
section 10 of Workmen's Compensation Act reads thus:
“10 Notice and claim. (1) No claim for compensation shall be
entertained by a Commissioner unless notice of the accident
has been given in the manner hereinafter provided as soon as
practicable after the happening thereof and unless the claim is
preferred before him within two years of the occurrence of the
accident or in case of death within two years from the date of
death:......
…
….
….
Provided further that the Commissioner may entertain and
decide any claim to compensation in any case notwithstanding
that the notice has not been given, or the claim has not been
preferred, in due time as provided in this sub-section, if he is
satisfied that the failure so to give the notice or prefer the
claim, as the case may be, was due to sufficient cause.
…........
…........”
(emphasis added)
30. Thus, if the claimant has to file application under the Workmen's
Compensation Act, within the period of two years after the date of the
accident. In the present case, the accident has taken place on 24.1.2004
and the application under the Workmen's Compensation Act was filed on
1.4.2009 bearing application (WCA) No.25 / B – 5 of 2009. Thus, there is
a delay of more than 3 years. However, the MACP claim was filed in the
same year i.e., MACP No.388 of 2004 and it was dismissed on 6.9.2007
by Member, Motor Accident Claims Tribunal, Kolhapur. Thus, the claim
was filed after one year and six months after dismissal of the claim
application by MACT. The learned Commissioner has given the benefit of
section 14 of the Limitation Act, 1963 to the claimants by holding that as
the claimants had filed claim before the Tribunal, they were diligent in
prosecuting the said claim. The main contention of the learned Counsel
for the insurance company was that the Tribunal cannot be considered a
forum without jurisdiction. Section 14 of the Limitation Act is about
exclusion of time of proceeding bonafide in court without jurisdiction.
31. It is true that Motor Accident Claims Tribunal is a forum of proper
jurisdiction for relief of compensation in accident claims and, therefore, as
argued by Mr.Joshi, the learned Counsel, the benefit of section 14 of
Limitation Act cannot be given to the applicants in the case. However, the
section is applicable to the cases where the proceedings are pursued
before the Court without jurisdiction. In order to invoke the proviso of
section 10 of the Workmen's Compensation Act it is not necessary for the
claimants to make a separate application for condonation of delay if the
applicants have mentioned the cause of delay, then, and if it is found true,
then, in the absence of application, the delay can be condoned. I support
of these observations, I rely on the finding given by the learned Single
Judge of this Court in the case of Department of Telecommunication,
Nanded vs. Deelip s/o. Hari Mogle2
thus:
2 2007(6) Mh.L.J. 596
“5. … This proviso appended to sub-clause (1) of section 10
gives discretionary power to the Commissioner in an appropriate
case to consider the application irrespective of delay. The provision
enumerated under section 10 does not require any separate
application to be filed for condonation of the delay. In the present
case, the Commissioner has duly considered the reasons and has
exercised his discretion in the matter of entertaining the application
beyond of 2 years. ….”
The case of the present applicants is covered not under section 14 but
under the proviso of section 10 of the Workmen's Compensation Act. The
applicants have shown a satisfactory cause to condone delay as the
matter was pending before the Motor Accident Claims Tribunal. Hence,
the application is within limitation.
32. In the circumstances of the case, the appeal is dismissed.
(MRIDULA BHATKAR, J.)
33. At this stage, Mr.Joshi submitted that he wants to challenge the
order before the honourable Supreme Court and prayed for stay of the
order for 12 weeks due to summer vacation. Accordingly, the operation of
the order is stayed till 30th July, 2016.
34. The learned counsel for the respondent/original claimant submitted
that original claimants be allowed to withdraw 25% of the amount.
Mr.Joshi opposed this prayer. However, the original claimants are allowed
to withdraw 25% of the amount accumulated as on today upon furnishing
usual undertaking.
(MRIDULA BHATKAR, J.)
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