Karnataka High Court
The Branch Manager vs Shivaji S/O Sopan Pandhare And Ors on 2 July, 2024
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MFA No. 202403 of 2018
C/W MFA.CROB No. 200018 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISC. FIRST APPEAL NO.202403 OF 2018 (MV-D)
C/W
MFA CROSS OBJ NO.200018 OF 2020 (MV-D)
IN MFA.NO.202403/2018
BETWEEN:
1. SHIVAJI S/O SOPAN PANDHARE
AGE:52 YEARS, OCC: COOLIE
2. SHOBHA W/O SHIVAJI PANDHARE
Digitally signed by AGE: 47 YEARS, OCC: H.H.WORK,
KHAJAAMEEN L BOTH ARE R/O BHOGADE CHOWL,
MALAGHAN
Location: HIGH BUDHWAR PETH, SOLAPUR,
COURT OF MAHARASHTRA STATE.
KARNATAKA
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SAUD AHMED CHOWDHARY
AGE: 42 YEARS OCC: BUSINESS,
R/O NEAR UMBRELLA HOTEL NATIONAL HIGHWAY,
NO. 8 PALHAR VILLAGE VASAL(EAST) DIST. TANE,
MAHARASHTRA STATE-401203.
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MFA No. 202403 of 2018
C/W MFA.CROB No. 200018 of 2020
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD,
HANMASHETTY BUILDING,
S.S. FRONT ROAD,
VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R2;
VIDE ORDER DATED 10.12.2019 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT
PAYABLE TO THE APPELLANT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 04.06.2018 PASSED BY THE
COURT OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII AT VIJAYAPUR IN
MVC.NO.495/2016.
IN MFA.CROB.NO.200018/2020
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
HANMASHETTY BUILDING, S.S. FRONT ROAD,
VIJAYAPUR, REPRESENTED BY,
ITS AUTHORIZED SIGNATORY.
...CROSS OBJECTOR
(BY SRI MANVENDRA REDDY, ADVOCATE)
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MFA No. 202403 of 2018
C/W MFA.CROB No. 200018 of 2020
AND:
1. SHIVAJI S/O SOPAN PANDHARE
AGED 54 YEARS, OCC: COOLIE,
2. SHOBHA W/O SHIVAJI PANDHARE
AGED ABOUT 49 YEARS, OCC: HOUSEHOLD WORK,
BOTH ARE R/O. BHOGADE CHAWL,
BUDHWAR PETH SOLAPUR-413001.
3. SAUD AHMED CHOWDHARY
AGE: 44 YEARS, OCC: BUSINESS,
(OWNER OF TIPPER BEARING,
REG.NO.MH-04/DD2105),
R/O NEAR UMBRELLA HOTEL,
NATIONAL HIGHWAY NO.8,
PELHAR VILLAGE VASAL (EAST),
DIST. THANE, MAHARASHTRA STATE.
...RESPONDENTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE,
FOR R1 AND R2;
VIDE ORDER DATED 19.08.2021 NOTICE TO R3 IS,
DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
CPC, PRAYING TO A) CALL FOR THE RECORDS. B) TO SET
ASIDE THE JUDGMENT AND AWARD DATED 04.06.2018
PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND
MACT-VII AT VIJAYAPURA, IN MVC NO.495/2016 AND ALLOW
THIS CROSS APPEAL, C) DISMISS THE MFA NO.202403/2018
FILED BY THE RESPONDENT NOS.1 AND 2 AND ALSO DISMISS
THE CLAIM PETITION IN MVC.NO.498/2016 AND ETC.
THESE APPEALS AND MFA.CROB, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 202403 of 2018
C/W MFA.CROB No. 200018 of 2020
JUDGMENT
Both these appeal and cross-objection arise out of judgment and award passed in MVC.No.495/2016 on the file of the II Additional Senior Civil Judge and MACT-VII at Vijayapura (hereinafter for short referred to as 'Tribunal').
02. The claimants filed MFA.No.202403/2018 for enhancement of compensation and The MFA.Crob.No. 200018/2020 is filed by the Insurance Company, challenging the maintainability of the appeal filed by the claimants.
03. There is a short question involved in the present case that once the claimant has exercised his right to claim the compensation under the provisions of Employees Compensation Act, 1923 (for short 'ECA Act, 1923), whether again he can approach the Court under Section 166 of the M.V. Act, to claim compensation. -5-
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04. Sri. Manvendra Reddy, the learned counsel for the insurer submits that Section 167 of the M.V. Act, is clear in this regard. The appellant had applied under Employees Compensation Act and got an award in his favour. The respondent - insurer had already paid the same again he is not entitled to file petition under Section 166 of the Motor Vehicle Act. Hence, prayed for dismissal of the appeal.
05. The learned counsel for the claimants submits that both the provisions are beneficial legislation. If the claimants are entitled for higher compensation, then they have an option to claim compensation under such law. In the present case, the commissioner under the ECA Act, 1923 awarded the compensation of Rs.7,77,938/- with the interest at the rate of 12% per annum. However, in the M.V. Act, the claim petition filed under Section 166 of the Act, the compensation awarded was Rs.5,17,000/- lesser then the amount which is awarded under the ECA Act, 1923. Therefore, the claimants have filed this appeal for -6- NC: 2024:KHC-K:4508 MFA No. 202403 of 2018 C/W MFA.CROB No. 200018 of 2020 enhancement of the compensation. In alternatively, he submits that in view of the filing of this appeal no appeals have been filed. In view of the petition filed under the M.V. Act, the claimants did not file any appeal against the judgment and awarded passed in ECA.No.72/2014 dated 23.11.2015. If the appeal is to be dismissed as not maintainable, the liberty may be given to the claimants to file an appropriate appeal to claim the compensation. Accordingly, prayed to dispose of the matter.
06. The only question arises in this case is as under:-
"Whether the claim petition filed under Section 166 of the M.V. Act is maintainable after award passed in the ECA.No.72/2014.?"
07. The facts arising for the present case is not in dispute. It is also not in dispute that the claimants have filed ECA.No.72/2014 and an amount of Rs.7,77,938/- was awarded under the said Act. After disposal of the said case, the present MVC.495/2016 was filed. -7-
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08. The Section 167 of the M.V. Act, 1988 is very much clear in this regard, which reads as under:-
"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 the 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."
09. Before filing of petition, there was an option to the claimants either they could approach under the M. V. Act, for compensation or the Commissioner under the ECA Act, 1923. Once they exercised any option, they cannot again approach another forum on the ground that the compensation awarded by the earlier forum was not adequate. No such exception is made in the provisions of Section 167 of the M.V. Act.
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10. In the case of Smt. Sreedevi Bai and others vs. The Managing Director BMTC, Bengaluru Central Office Shantinagar, K.H. Road, Bengaluru and others1, it is held that the claim petition cannot be filed both under the provision both ECA Act, 1923 as well as M. V. Act. The claimants have option to seek compensation under any one of the said Act. Under these circumstances, the MVC.No.495/2016 is not at all maintainable.
11. As rightly pointed out by the learned counsel for the insurer the Tribunal had framed an issue No.3 in this regard, which reads as under:-
"Whether the petition is hit by Section 167 of the M.V. Act, 1988 for having obtained award in ECA.No.72/2014 by the petitioners.?"1
2014 KANT M.A.C. 96 -9- NC: 2024:KHC-K:4508 MFA No. 202403 of 2018 C/W MFA.CROB No. 200018 of 2020
12. However, in the impugned judgment the said issue was not at all answered. But in Para No.17 of the impugned judgment, the Tribunal has held that the claimants are not entitled to claim compensation under this petition. But in the final order the petition was partly allowed with costs. The said findings are contrary to each other. When the claimants are not entitled for compensation under the present petition, then the Tribunal ought to have dismissed the claim petition as not maintainable. It is true that no relief was granted to the claimants in the said MVC case. But the operative portion discloses as some relief was granted by the Tribunal to the claimants. Under these circumstances, the petition as well as this appeal is not at all maintainable.
13. Considering the submission of the learned counsel for the claimants that liberty be given to the claimants to approach the appellate forum for enhancement of the compensation awarded in ECA.No. 72/2014 dated 23.11.2013, the said fact depends upon the period of limitation to approach the appellate Court. Hence, subsequent to all the exceptions, the liberty could be given.
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14. For the above said discussion, I answered the question in the negative and proceed to pass the following;
ORDER I. The MFA.No.202403/2018 filed by the claimants is dismissed as not maintainable. However, the liberty is given to the claimants to approach the appropriate forum to challenge award passed in ECA.No.72/2014 dated 23.11.2015 keeping open the question of limitation to be considered by the said forum and also subject to all the exceptions.
II. The MFA.Crob.200018/2020 is allowed, as ordered above.
III. The amount if any deposited by the insurer in MFA.No.Crob.200018/2020 is ordered to be refunded to the insurer on due acknowledgment.
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NC: 2024:KHC-K:4508 MFA No. 202403 of 2018 C/W MFA.CROB No. 200018 of 2020 The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE KJJ List No.: 1 Sl No.: 39 CT:PK