Bajaj Allianz General Insurance ... vs Motor Accident Claims Tribunal, ...
2023 Latest Caselaw 9055 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 6
 

 
Case :- WRIT - C No. - 14503 of 2022
 
Petitioner :- Bajaj Allianz General Insurance Company Ltd.
 
Respondent :- Motor Accident Claims Tribunal, Shahjahanpur And 8 Others
 
Counsel for Petitioner :- Pawan Kumar Singh
 
Counsel for Respondent :- Rishi Bhushan Jauhari
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard counsel for the parties and Sri Bhanu Pratap for respondent no. 2 to 7.

2. Present petition has been filed challenging the order dated 02.02.2022, whereby the application filed by the petitioner for recall of the award dated 18.12.2018 was rejected.

3. The facts in brief are that husband of the respondent no. 2 died on 14.04.2013 in an accident caused on 28.12.2012 with the vehicle bearing No. UP 27 E 4671. The deceased was the cleaner in a truck bearing No. UP 27 T 2264 and on the ill fated day, when he went to repair the tyre, the tempo bearing No. UP 27 T 4671 hit the deceased which caused grievous injuries and ultimately led to his death.

4. The respondent no. 2, claiming compensation filed a case No. 50/E.C.A./2013 before the Workmen's Claims Commissioner claiming compensation on account of the death of the husband of the claimant, respondent no. 2. In the said case final order was passed on 06.11.2013 granting compensation of Rs. 588913/- amount awarded was decided to be paid by the insurer of truck No. UP 27 T 2264 mainly on the ground that the deceased died while on duty and was entitled for compensation from the employer under the Workmen's Compensation Act. As the employer was indemnified by the insurance company, the amount as granted was directed to be paid by the ensurer of truck No. UP 27 T 2264, namely Sri Ram General Insurance Company Ltd..

5. After award was passed on 06.11.2013, the respondent no. 2 alongwith the respondent no. 3 to 7 filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation from the owner of tempo No. UP 27 T 4671, which was said to be insured with the petitioner company. The said claim petition was allowed vide judgment dated 06.04.2017, wherein an amount of Rs. 4,57,000/- was determined as compensation under Motor Vehicles Act. While passing the said award, the amount was directed to be paid (1/6th share to each) to the claimants, wife of the deceased (respondent no. 2), the minor children of the respondent no. 2 as well as the mother and father of the deceased in the proportion as indicated.

6. The petitioner company subsequently moved an application seeking recall of the award dated 06.04.2017 mainly on the ground that prior to filing of the claim petition, the claimant, respondent no. 2 had filed proceedings under Workmen's Compensation Act and the award was passed in her favour, which fact was not disclosed by the respondent no. 2 in the claim petition No. 148 of 2014. The contention of the petitioner was that the claim as decided in MACT No. 148 of 2014 was barred by virtue of the Section 167 of the Motor Vehicles Act. The said application for recall was rejected by means of order dated 02.02.2022 mainly on the ground that the application for recall/review was not maintainable before the Tribunal.

7. The contention of the counsel for the petitioner is that in view of the bar created under Section 167 of the Motor Vehicles Act, a right of election of remedy vested in favour of the claimant and once the remedy/right was chosen, the right to claim compensation under the different Act was specifically barred. He argues that in view of the bar created under Section 167 coupled with the fact that there were no disclosure made in the claim petition, the award was obtained by the misrepresentation and contrary to the statutory provisions and thus, was liable to be recalled. In support of his contention, he places reliance on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Vs. Mastan and Anr. (2006) 2 SCC 641.

8. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Dyamavva and Ors.(2013) 9 SCC 406. He then places reliance on the judgment of the Gujarat High Court in the case of Madinabibi Dasotbhai Sheikh and Ors. Vs. Jagdishchandra Ramanlal Kachiya Patel and Ors. Decided on 23.06.2017 in First Appeal No.1998 of 2017 and lastly placed reliance on the judgment of the Kerala High Court in re: WCC Ref.No.1 of 2010 Commissioner of Workmen's Compensation reported at 2010 SCC online Ker 4805.

9. Counsel for respondent, on the other hand, argues that in the present case, the compensation was claimed from two different insurance companies. In respect of the Workmen's Compensation Act, the claim of compensation was made against the insurer of truck, whereas in the Motor Vehicles Act the claim was made against the insurer of tempo which are two different companies and thus, there is no bar in claiming the compensation. He relies on the provisions of Section 145, 146, 147 of the Motor Vehicles Act read with Section 150 to submit that the the insurer is different and thus, the liability of payment arises out of two different contracts of insurance. He next argues that the list of dependents under Section 2B of the Workmen's Compensation Act is separate from the concept of legal heirs, who are entitled to file compensation under Section 166 of the Motor Vehicles Act.

10. He further placed reliance on the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Vs. Mastan (supra) to argue that the arguments raised by the counsel for the petitioner are liable to be rejected. He also placed reliance judgment of this Court in the case of New India Assurance Co. Ltd. Vs. Annapurna Gupta and Ors. 2018 (9) ADJ 784. He lastly argues that in any event, no case for review was made out and the petitioner should have taken recourse to filing the appeal and in the said appeal, he could have placed evidence in terms of the mandatory provisions of Order 41 Rule 27, which would apply in principle.

11. To decide the issue as raised, this Court is to see the genesis which led to enactment of the Motor Vehicles Act and the Workmen's Compensation Act.

12. The genesis of the entire action of claiming damages flow from the tortious action or a civil wrong inflicted upon the deceased. It flows from the civil cause of action and for which the compensation is recoverable. The basic principle underlying tort law is that no one should be harmed by the acts of the others for a wrongful act.

13. In India, the general procedure prescribed was, by way of filing a suit for claiming compensation, for the wrongful acts caused on account of tort or the civil wrong. With passage of time, the procedure for claiming damages was streamlined and prescribed in statute namely the Fatal Accidents Act and thereafter in various statutes such as the Motor Vehicles Act, the Workmen's Compensation Act and the Public Liability Insurance Act, to name a few.

14. The said enactments only provided for the procedure for claiming the damages on account of tort suffered by the claimant or his dependents. The said statutes provided for a remedy which was faster and easier than the remedy of a civil suit. Thus, the damages claimed under the Motor Vehicle Act or the Workmen's Compensation Act owe its genesis to the loss caused due to the civil wrong. The legislature in its wisdom provided for various forums for claiming the damages on account of the civil wrong under the various acts.

15. Section 167 of the Act was incorporated to avoid multiplicity of claims on account of the wrong sustained by the person or on behalf of the said person by his legal representatives.

16. The contention of the counsel for the petitioner that in various cases, the claim for claiming money under the Life Insurance Policy and claiming money under the Motor Vehicles Act can go simultaneously, cannot be applied to the present case as the two are wholly different, one being a civil wrong caused on account of the irresponsible action and the second arising out of a contract of insurance.

17. It is well settled that that a contract is found upon the consent whereas a tort is inflicted against or without consent. For an action of breach of contract, a privity in between the parties is essential whereas for tort no such privity is needed. A tort is clearly distinguishable from a pure breach of contract as a tort is clearly a violation of a right in ''rem' whereas breach of contract is infringement of a right in ''personam'.

18. In the present case, section 167 of the Motor Vehicles Act clearly restricts the right to claim compensation on account of a tort from one of the forums prescribed namely the Motor Vehicles Act or the Workmen's Compensation Act.

19. The issue and the scope of section 167 of the Act came up for consideration before the Supreme Court in the case of National Insurance Company vs. Mastan and another (2006) 2 SCC 641 wherein after analysing the provisions, the court has held as under:

"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.

24. In Nagubai Ammal v. B. Shama Rao [1956 SCR 451 : AIR 1956 SC 593] it was stated: (SCR p. 470)

"It is clear from the above observations that the maxim that a person cannot ''approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto."

25. In C. Beepathumma v. Velasari Shankaranarayana Kadambolithaya [(1964) 5 SCR 836 : AIR 1965 SC 241] it was stated: (SCR p. 850)

"The doctrine of election which has been applied in this case is well settled and may be stated in the classic words of Maitland--

''That he who accepts a benefit under a deed or Will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.'

The same principle is stated in White and Tudor's Leading Cases in Equity, Vol. (sic) 18th Edn. at p. 444 as follows:

''Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.... That he who accepts a benefit under a deed or Will must adopt the whole contents of the instrument.' "

26. Thomas, J. in P. R. Deshpande v. Maruti Balaram Haibatti [(1998) 6 SCC 507] stated the law thus: (SCC p. 511, para 8)

"8. The doctrine of election is based on the rule of estoppel -- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, 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."

27. The first respondent having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof.

28. We, therefore, with respect do not subscribe to the views of the Full Bench of the Karnataka High Court.

29. Mr. P. R. Ramasesh is not correct in contending that both the Acts should be read together. A party suffering an injury or the dependents of the deceased who has died in course of an accident arising out of use of a motor vehicle may have claims under different statutes. But when cause of action arises under different statutes and the claimant elects the forum under one Act in preference to the other, he cannot be thereafter permitted to raise a contention which is available to him only in the former."

20. The Supreme Court in the case of Oriental Insurance Company vs. Dyamavva and others; (2013) 9 SCC 406 had the occasion to consider the scope of section 167 and following the judgment in the case of National Insurance Company (supra) recorded as under :

12. The issue to be determined by us is, whether the acceptance of the aforesaid compensation would amount to the claimants having exercised their option to seek compensation under the Workmen's Compensation Act, 1923.The procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer "suo motu", and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmen's Compensation Act, 1923. The position would have been otherwise if the dependants had raised a claim for compensation under Section 10 of the Workmen's Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmen's Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmen's Compensation Act. Suffice it to state that no such application was ever filed by the respondent claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondent claimants having never exercised their option to seek compensation under Section 10 of the Workmen's Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988."

21. Coming to the judgment of this Court in the case of New India Assurance Co. Ltd. vs Smt. Annapurna Gupta And Another decided on 17 April, 2018 in FAFO No. - 1946 of 2018 relied upon by the counsel for the respondents, the court proceeded on the assumption that two insurance companies were involved in the affair, one under the Workmen's Compensation Act and the other which was a party Motor Accident Claims Tribunal under section 166. The said judgment does not consider the fact, that the genesis of the claim in two different forums is one and the same, being a tort sustained by the deceased for which the claim is raised by the legal heirs, the court although noticed the judgment of the Supreme Court in the case of National Insurance Co. Ltd. (supra) has clearly not dealt with the issue as decided by the Supreme Court. Thus, the said judgment is clearly not applicable and does not qualify as precedent as the same suffers from the vice of sub-silentio.

22. As the respondents have obtained the order from the Motor Accidents Claims Tribunal by concealing the true facts and in contravention to Section 167 of the Act, there was a clear case of statutory fraud on the Tribunal.

23. It is well settled that although a review, does not lie unless it is prescribed by the statutes, a procedural review is implicit in all the courts as has been held by the Supreme Court in the case of Grindlays Bank Limited vs. Central Government Industrial Tribunal and others; 1981 SCR (2) 341

24. In view of the fact, that this court is of the view that the order passed by the Tribunal was clearly contrary to the bar created under Section 167 of the Act, the Tribunal ought to have allowed the recall application and should have heard the matter on merits.

25. Thus, the impugned order dated 02.02.2022 is quashed. The matter is remanded to the Claims Tribunal to recall the award dated 18.12.2018 and to decide the same afresh in accordance with law.

26. It is informed at the bar that the amount awarded by the Tribunal vide order dated 18.12.2018 has not been withdrawn by the respondents, thus, it is directed that the amount deposited, if any, by the petitioner shall continue to remain deposit subject to the fresh award that may be passed by the Tribunal, as directed above.

27. The writ petition stands disposed off with the said observations.

Order Date :- 28.3.2023

S.A.

[Pankaj Bhatia, J]