Smt. Abedabi Mohammed Mustaq And ... vs Femida Bano Sheikh Israil And ...
2017 Latest Caselaw 5308 Bom

 fa912.16.J.doc                1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                        FIRST APPEAL NO.912 OF 2016


 1]       Smt. Abedabi Mohammed Mustaq,
          Aged about 77 years,
          Occ: Housewife.

 2]       Badrnnisa Mohammed Khalil,
          Aged about 41 years,
          Occ: Housewife.

 3]       Mohammed Shakir Mohamed Khalil,
          Aged about 22 years,
          Occ: Nothing.

 4]       Mohammed Samir Mohamed Khalil,
          Aged about 21 years,
          Occ: Nothing.

 5]       Samrin Mohamed Khalil,
          Aged about 19 years,
          Occ: Nothing.

 6]       Amrin Mohamed Khalil,
          Aged about 17 years,
          Occ: Nothing (Minor).

 7]       Mohammed Soheb Mohamed Khalil,
          Aged about 16 years,
          Occ: Nothing.

          Appellants Nos.6 and 7 are minors 
          represented by their natural guardian
          mother appellant No.2

          All R/o Kalamb Chowk, Yavatmal,
          Tahsil & District Yavatmal.              ....... APPELLANTS
                                                            ORIGINAL CLAIMANTS

                               ...V E R S U S...




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  fa912.16.J.doc                    2




 1]       Femida Begum Sheikh Israil,
          Aged about 38 years,
          Occ: Don't know.

 2]       Sumaiya Firdous Sheikh Israil,
          Aged about 16 years,
          Occ: Don't know.

 3]       Mubassera Firdous Sheikh Israil,
          Aged about 14 years, 
          Occ: Don't know.

 4]       Sheikh Saad Sheikh Israil,
          Aged about 13 years, 
          Occ: Don't know.

 5]       Shaikla Bano Sheikh Ismail
          Aged about 68 years,
          Occ: Don't know.

 6]       Sheikh Ismail Bhai,
          Aged about 70 years,
          Occ: Don't know.

          Respondent Nos.2 to 4 minor 
          represented through natural guardian
          mother respondent No.1.

          All R/o Shinde Nagar, Yavatmal,
          Tahsil & District Yavatmal.

 7]       The New India Assurance Co. Ltd.,
          through its Branch Manager, Office at
          Yerawar Building, Yavatmal,
          Tahsil & District Yavatmal.          ....... RESPONDENTS
                                                                     ORIGINAL OPPPONENTS

 -------------------------------------------------------------------------------------------
          Shri Abdul Subhan, Advocate for Appellants.
          Shri A.C. Chaphale, Advocate for Respondent No.7.
 -------------------------------------------------------------------------------------------
          CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

          DATE:               st
                            1    AUGUST, 2017.









 ORAL JUDGMENT


 1]               A very peculiar question of law raised in this appeal

is; if a petition filed under section 166 of the Motor Vehicles Act is

dismissed on the ground that it was not maintainable as the

accident has occurred due to the rash and negligent driving of the

deceased himself, whether the subsequent petition under section

22 of the Workmen's Compensation Act, 1923 is maintainable?

2] For answering this question of law, one has to

consider the facts of this appeal, which is filed under section 30 of

the Employee's Compensation Act, 1923 challenging the judgment

and order dated 23.07.2015 passed by the Commissioner,

Workmen's Compensation, Yavatmal thereby rejecting the claim

petition of the appellant herein, filed under section 22 of the said

Act.

3] Brief facts of the appeal are to the effect that,

appellant No.1 is the mother, appellant No.2 is the widow and

appellant Nos.3 to 7 are the children of deceased Mohd. Khalil,

who was working as a Driver on the Truck bearing MH-29 6337

and belonging to one Sheikh Israil. Respondent Nos.1 to 6 are the

legal heirs of Sheikh Israil. The said truck was validly insured with

respondent No.7.

4] On 23.08.2002 while deceased Mohd. Khalil was

proceeding on the said truck towards Yavatmal, at about 04:00

a.m. when the truck reached near Imampur village on National

Highway No.7, due to focus of the light of other vehicles coming

from opposite direction, deceased could not see the road properly.

As a result, he lost control over the truck and it resulted in turtling

and over turning of the truck. Deceased sustained the grievous

injuries in the said accident and died on the spot.

5] As the appellants lost their only source of income and

suffered loss of love and affection and also loss of the income,

they filed Claim Petition No.50/2003 before the Motor Accident

Claims Tribunal, Yavatmal under Section 166 of the M.V. Act

1988. Along with the said petition, the appellants also preferred

an application under section 140 of the M.V. Act, which was

allowed and the appellants received an amount of Rs.50,000/-

towards 'no fault liability'. The petition u/s 166 M.V. Act however,

came to be dismissed by the Tribunal vide its judgment and order

dated 19.09.2007 holding that as the cause of the accident was

the rash and negligent driving of the deceased himself, the

liability cannot be fixed upon the owner of the truck under section

166 of the Motor Vehicles Act. It was therefore, held that the

petition under section 166 of the M.V.Act, cannot be maintainable

in law. Accordingly, the said petition came to be dismissed.

6] According to appellants, as they were having no

alternate remedy, they preferred claim petition under section 22

of the Workmen's Compensation Act, 1923 before the Labour

Court, Yavatmal. In support of their claim, they also adduced the

evidence. However, the Labour Court has also, vide its impugned

judgment and order dated 23.07.2015, dismissed the said claim

petition, holding that, when the appellants had elected the

remedy of approaching the Tribunal under section 166 of the

Motor Vehicles Act, the petition under section 22 of the

Employee's Compensation Act cannot be maintainable. Therefore,

though it was held that the appellants are entitled to get the

compensation of Rs.3,34,580/- for the death of the deceased, it

was held that, as they have already elected and attempted to

pursue the remedy under section 166 of the Motor Vehicles Act,

their petition is barred by res judicata and therefore, it is not

maintainable. Accordingly, it came to be dismissed.

7] While challenging this judgment and order of the

Labour Court, the submission of learned counsel for appellants is

that the learned Trial Court has failed to appreciate properly the

legal issues involved in the case. It is urged that the claim petition

filed by the appellants before the Tribunal under section 166 of

the M.V. Act came to be dismissed on the sole ground that it is not

maintainable and in such situation, the remedy provided to the

appellants under the Employee's Compensation Act, in view of

section 3 sub-clause (5) cannot be barred. It is urged that the

appellants had not received any amount of compensation in the

claim petition u/s 166 of M.V. Act except for the amount of

Rs.50,000/-, which was paid to them towards 'no fault liability'

u/s 140 of the said Act. It is urged that the case would have been

different if the claim of the appellants was allowed under the M.V.

Act and again they have sought the compensation under the

Employees Compensation Act. It is urged that the object and

reason of both M.V. Act and E.I. Act and the remedies provided

under both the Act are totally different and hence the bar of

res judicata cannot be attracted in the instant case. In support of

his submission learned counsel for appellants has relied upon the

various judgments of this Court and also of the Apex Court.

8] Per contra, according to learned counsel for

respondent No.7, the claim petition of the appellants before the

Tribunal under section 166 of the M.V. Act was not dismissed on

any technicality, but it was dismissed on merits as they failed to

prove negligence on the part of the truck owner and accident was

proved to have occurred due to rash and negligent driving of the

deceased himself. It is submitted that, once the appellants had

elected the remedy of approaching the Tribunal under M.V. Act by

filing petition under section 166 of the said Act and that remedy is

exhausted, they cannot again avail another remedy, provided

under the Employee's Insurance Act. It is submitted that the

Tribunal has also in its judgment in Claim Petition No.50/2003,

has held that the appellants have closed the doors for themselves,

even to come under section 163-A of the Act as they have availed

the interim compensation towards 'no fault liability' under section

140 of the M.V. Act. It is thus submitted that after becoming

unsuccessful in one proceeding, and that too, after availing certain

benefit of Rs.50,000/-provided under that proceeding, the

appellants cannot approach another forum to get more amount of

compensation.

9] Learned counsel for respondent No.7 has also in

support of his submission relied upon the judgment of the Apex

Court in the case of National Insurance Co. Ltd. Vs. Mastan and

another (2006) 2 SCC 641 and that of the Gujarat High Court in

the case of Gulamrasul Rehman Malek V. Gujarat State Road

Transport Corporation 2015 ACJ 20.

10] Thus, the only point which necessarily arises for my

determination in this appeal is, about the maintainability of the

petition filed before the Labour Court under section 22 of the

Employee's Insurance Act, in view of the dismissal of the earlier

petition filed by the appellants before the Claims Tribunal under

section 166 of the Motor Vehicles Act.

11] For deciding this point, it would be useful to

reproduce section 167 of the Motor Vehicles Act and also section 3

sub-clause (5) of the Workmen's Compensation Act, which read as

follows:

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.

3. Employer's liability for compensation (1)...

(2)...

(3)...

(4)...

(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.

Thus, it can be seen that section 167 of the M.V. Acts

provides an option to the claimant, one that of, filing a petition

either under section 166 of the Motor Vehicles Act or under

section 22 of the Workmen's Compensation Act, but with a rider

that he will not be entitled to compensation under both the

provisions.

12] Section 3 sub-clause (5) of the Workmen's

Compensation Act also provides that, if any suit for compensation

in respect of any injury suffered by the workman in the course of

his employment, is filed by said workman in the Civil Court, his

claim petition under Section 22 of the Workmen's Compensation

Act cannot be maintainable.

13] Both these statutory provisions came up for their

interpretation in number of the decisions of the Apex Court and

various High Courts. The foremost of such decisions, relied upon

by learned counsel for respondent No.7 is, that of National

Insurance Co. Ltd. Vs. Mastan and another (2006) 2 SCC 641,

wherein the Apex Court has explained the "doctrine of election" as

a branch of "rule of estoppal" 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. It was held that, 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. It was further

held, that when the 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.

14] While dealing with the provisions of section 167 of

the M.V. Act it was observed that, "the said section 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 Employee'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".

It was further held that, "once the claimant has pursued his claim

for compensation till the order was passed and thereafter invoked

the provisions of Motor Vehicle Act, he is not entitled to do so

having elected one forum.

15] In my considered opinion, as regards the "doctrine of

election" which is explained in this authority, there can hardly be

any two opinions about the same. However, one has to consider

the context in which this doctrine was invoked. It can be seen that

the question, which was raised before the Apex Court in this case

was, as laid down in para 2 thereof. It was to the effect, "whether

an insurer while defending an action initiated under the

Workmen's Compensation Act, 1923 is precluded from raising, any

defence as envisaged in under sub-section (2) of section 149 of

the Motor Vehicles Act, 1988".

16] Therefore, the question raised in this appeal before

the Hon'ble Apex Court was totally different. In para 5 of the

judgment it was again reiterated that the question referred to the

Full Bench was, "whether the restrictions on the defences

available to an insurance company in terms of section 149(2) of

the Motor Vehicles Act have any application to the proceedings

under the Workmen's Compensation Act?"

17] Thus, the question, which was placed for

consideration before the Hon'ble Apex Court in this decision, was

entirely different than the question which is raised for

consideration in this appeal. While deciding the said question as

to whether the defences or contentions available under one

proceeding can be invoked in another proceeding the Hon'ble

Apex Court was pleased to hold in para 29 of the judgment that,

"when the cause of action arises under different statutes and the

claimant elects the forum under one Act in preference to the

other, he cannot thereafter be permitted to raise a contention,

which is available to him only in the former. Having regard to the

different provisions of the two Acts, he can enforce the liability of

insurer only under one Act. He has to elect for one. It was further

held that, the first respondent therein having chosen the forum

under Workmen's Compensation Act for the purpose of obtaining

compensation against his employer, cannot now fall back upon

the provisions of the M.V. Act therefor, in as much as the

procedure laid down under both the Acts is different".

18] Ultimately, it was held that in a proceeding where the

right of insurer to raise a defence is limited in terms of section 149

(2), an appeal preferred by it against an award of the M.A.C.T.

must be confined or limited to that extent.

19] Thus, on perusal of the entire judgment of the Apex

Court in this case, it can be seen that having regard to the issue

involved in the said matter as to whether the defence as provided

under section 149 of the M.V. Act can be raised, while defending

an action initiated under the Workmen's Compensation Act, 1923,

the Hon'ble Apex Court has made above said observations. In my

considered opinion therefore, the question, which is involved in

the present appeal, as to when the appellants who have failed to

prove their claim under section 166 of the M.V. Act, can approach

or avail the remedy under Workmen's Compensation Act, was not

raised for consideration before the Hon'ble Apex Court in the said

case.

20] As regards the reliance placed by learned counsel for

respondent No.7 on the judgment of Gulamrasul Rehman Malrek

V. Gujarat State Road Transport Corporation (supra), the facts of

the said judgment reveal that the workman who was a driver in

the said case, met with an accident due to his own negligence

when he dashed his bus against a tree and sustained injuries.

It was held that, he had the choice of filing claim either under

Motor Vehicles Act or under Employee's Compensation Act but not

under both. The claimant with expectation to get more amount

opted to obtain compensation under Motor Vehicles Act, knowing

that under Employee's Compensation Act, even without proving

negligence, he could get the benefit. The proceeding under Motor

Vehicles Act however, came to be dismissed on merit as he failed

to prove negligence of employer, which is a sine qua non for

maintaining such application. He then preferred appeal against

the said judgment and while that appeal was pending. He filed an

application, seeking permission to withdraw the proceedings at

appellate stage, by taking aid of Order 23, Rule 1 of the Code of

Civil Procedure, in order to enable him to file fresh proceedings

under Employee's Compensation Act. Hence, in that context it was

held that after having elected to proceed under section 166 of the

M.V. Act and having received benefit u/s 140 of the said Act, the

claimant was precluded from approaching the forum constituted

under the Employee's Compensation Act, especially on account of

the fact that his claim petition before the M.V. Act was dismissed

as he has failed to prove the negligence of employer.

21] This judgment also therefore, is not applicable to the

facts of the present case. In this judgment of the Gujarat High

Court, the claim petition filed before Tribunal under M.V. Act was

dismissed, on account of failure of claimant to prove negligence of

the employer, which is a sine qua non for maintaining such

application. The appellant thereafter has sought permission to

withdraw the said proceedings pending in appeal so as to file

fresh proceedings under Employee's Insurance Act and therefore,

it was held that such permission cannot be granted, as he has

failed on merit to prove his case.

22] As against it, in the instant case it may be true that

the appellants have availed the benefit of compensation for no

fault liability under section 140 of the M.V. Act, but their petition

filed before the Tribunal under section 166 of the M.V. Act was

not dismissed on merit, on the ground that the appellants have

failed to prove the negligence of employer, but on the count that

the accident has occurred on account of the rash and negligent

driving of the deceased himself. Hence the petition under section

166 M.V. Act was held not maintainable. Therefore, the facts of

the present appeal need to be distinguished from the facts of this

judgment of Gujarat High Court also.

23] In this context, learned counsel for the appellants has

relied upon the judgment of this Court in the case of Neelabai

Mahadeo Salunke and others vs. Shamrao Tatoba Pawar and others

1994 Mh.L.J. 1656. In the said case also, the accident has resulted

into the death of the driver of a tractor during the course of his

employment. The claim for compensation filed by driver's

dependants under section 110A of Motor Vehicles Act was

rejected, as accident had occurred due to driver's negligence and

therefore no compensation was awarded. The claimants thereafter

claimed compensation under the Workmen's Compensation Act,

but the same was disallowed by the Commissioner for Workmen's

Compensation by invoking section 110AA of the Motor Vehicles

Act, which prohibited the claimants from making double recovery

of compensation by invoking the Motor Vehicles Act and the

Workmen's Compensation Act. When the appeal came before this

Court, it was held that the bar under section 110AA of M.V. Act

cannot be applicable. Even if the deceased was himself negligent

in driving the tractor leading to the accident, the claim for

compensation under Workmen's Compensation Act would still be

maintainable against the employer concerned or against the

insurance company, if the deceased died as a result of an accident,

which took place during the course of employment of the

deceased. It was held that the criteria to be applied for

determination of application for compensation under the

Workmen's Compensation Act, 1923 is somewhat different than

the criteria to be applied for determination of the claim for

compensation under section 110AA of the Motor Vehicles Act,

1939.

24] According to learned counsel for respondent No.7,

this judgment of the Court is prior to the decision of the Apex

Court in the case of National Insurance Co. Ltd. Vs. Mastan and

another (supra) and therefore, cannot be made applicable.

However, I have already held that the judgment of the Apex Court

in the case of National Insurance Co. Ltd. Vs. Mastan, deals with a

different context and is answering a very different issue framed

for its consideration. Therefore, this judgment, of our own High

Court which deals with more or less the same facts, as the present

appeal, can be considered for deciding the issue involved herein.

25] Learned counsel for appellants has then also placed

reliance on the judgment of Single Judge of Gujarat High Court in

United India Insurance Co. Ltd. Vs. Fatmaben Jamalbhai 2009 Law

Suit (Guj) 474, wherein also the driver of the tempo had died in

an accident involving the tempo and a truck. The claim petition

was filed by legal heirs of the tempo driver against the insurer, in

which the award was passed. Thereafter, the same legal heirs of

tempo driver filed an application for compensation under the

Employee's Compensation Act. The question raised was whether

bar under section 167 of M.V. Act prohibits proceedings under

both the Acts. It was held that the provision of section 167 of the

M.V. Act will not bar proceedings under both the Acts. After

relying on earlier decisions of the Court it was held that whatever

amount of compensation was received by the claimants under the

Motor Vehicles Act can be deducted while passing order under

Workmen's Compensation Act as both the petitions can be

maintainable.

26] Learned counsel for appellants has then placed

reliance on the judgment of Madras High Court in the case of

United India Insurance Co. Ltd. Vs. Anthony Selvam 2014 (2) TN

MAC 227, wherein the claim made under Employee's

Compensation Act was dismissed on the ground that claimant was

not employee of the owner of auto-rickshaw. Thereafter the

claimant filed the petition under section 166 of the M.V. Act,

which was challenged on the ground of maintainability. However,

it was held that the said petition can be maintainable.

27] In my considered opinion, the decision, which directly

covers the present controversy, is that of our own High Court in

the case of New India Assurance Co. Ltd. Vs. Bharati Adhik Patil &

ors. 2016(4) Bom.C.R. 73. In that case the claimant had filed the

claim for Rs.10,10,000/- before Motor Accident Claims Tribunal

under section 166 of the M.V. Act. Subsequently that claim was

converted under section 163-A of the M.V. Act. However, vide its

judgment and order dated 06.09.2007, the Tribunal held that

deceased was getting the income of more than Rs.40,000/- per

annum which is a pre-requisite condition for the claim under

section 163-A of the Motor Vehicles Act and therefore, the petition

under section 163-A of the M.V. Act cannot be maintainable.

It was further held that the evidence on record revealed that the

accident took place due to the rash and negligent driving of the

deceased alone. Hence, the said petition cannot be maintainable

and accordingly it was dismissed. The claimant thereafter, filed

claim petition under the Workmen's Compensation Act. In the said

petition, the Insurance Company raised the point of

maintainability on the count that once a claim preferred under the

M.V. Act for compensation is rejected then, another subsequent

claim cannot be filed by the claimants under the Workmen's

Compensation Act, as it is barred under section 167 of the M.V.

Act. The said objection was turned down by the learned

Commissioner on the ground that the dependents or the claimants

had not receive any compensation from the Motor Accident

Claims Tribunal and therefore, the application under Workmen's

Compensation Act for compensation was maintainable.

Accordingly, the application was partly allowed.

28] When this order of the Commissioner was challenged

before the Single Judge of this Court in the above said judgment,

this Court took note of the relevant provisions of 167 of M.V. Act

and Section 3(5) of the Workmen's Compensation Act and also the

decision of the Apex Court referred above, that of National

Insurance Co. Ltd. Vs. Mastan and another and several other

decisions like the decision in the case of Oriental Insurance Co.

Ltd. Vs. Dyamavva, the decision of Andhra Pradesh High Court in

the case of United India Insurance Company Ltd. Vs. Kore Lakshmi

& Ors. and also the decision of this Court in the case of

Smt.Neelabai referred above (supra). Thereafter it was held that,

as the claim petition was dismissed by Motor Accident Claims

Tribunal on two grounds, one the deceased was driving in a rash

and negligent manner and, second, on the ground that he was

having a salary of more than Rs.40,000/-, per year. Hence the

other option was chosen by the claimant to approach the

Commissioner for Workmen's Compensation under Workmen's

Compensation Act can be very much available. It was held that,

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 both these provisions namely,

section 167 of M.V. Act and section 3(5) of Workmen's

Compensation Act is that the person should not get benefit of

compensation twice out of the same cause. Therefore, if the claim

petition 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. It was

observed that both the Workmen's Compensation Act and Motor

Vehicles Act are social legislations. Hence, the sections cannot be

interpreted in such a manner so that the object of legislation will

be frustrated. It was held that 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 the case of Mastan

(supra) or in the case of Dyavamma (supra) as the person is not

receiving double benefit.

29] In para 28 of the judgment, this Court has considered

in a very effective manner as to how it would be absolutely unjust

to close the other option to the dependents of the deceased, as

follows:

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 employee-employer 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.

30] In the facts of the present case also, it is true that the

appellants have initially chosen the option of approaching the

Tribunal under Motor Vehicles Act for seeking compensation

under section 166 of the said Act. It is also true that they had

received certain amount of compensation i.e. Rs.50,000/- towards

'no fault liability' under section 140 of the said Act. However, on

the evidence produced before the Tribunal, it was found that the

cause of action was the rash and negligent driving of the deceased

and in view thereof the Tribunal has, on that sole ground held

that the petition under section 166 of the Motor Vehicle Act

cannot be maintainable.

31] Thus, the only ground on which the petition came to

be rejected was that it was not maintainable under section 166 of

the Motor Vehicles Act as the rash and negligent driving of the

deceased was found to be the sole cause of accident. In-directly it

indicates that the said petition was not decided on merit.

The issue which is sine quo-non for deciding the claim petition

under the Workmen's Compensation Act, that of the relationship

between the employer and employee was not at all considered in

that petition. Hence as held in the above said authority of New

India Assurance vs. Bharati Adhik Patil, when the petition is

dismissed on technical ground, of it being not maintainable under

section 166 of the M.V. Act, then it would be absolutely unjust to

close the door of another forum, which is available to appellants.

32] Especially in the facts of the present case, it is

pertinent to note that the Commissioner, Workmen's

Compensation has in his impugned judgment held that the

deceased was working as driver with the owner of the truck and

he was also getting salary of Rs.5000/- per month. It was further

held in the impugned judgment that the appellants therefore,

become entitled to get the compensation of Rs.3,34,580/- with

interest. However the only ground on which the Commissioner

has rejected the claim was that the appellants had already

approached the Tribunal under Motor Vehicles Act and their

petition was rejected by the tribunal. In my considered opinion,

when the two remedies are independently available and under

one remedy the petition came to be dismissed on technical ground

of being not maintainable, then another remedy cannot be fore-

closed, especially on the ground of res judicata. The finding of the

Commissioner to that effect is definitely erroneous and in the light

of the legal position, as discussed above, the impugned order of

the Commissioner therefore rejecting the claim petition needs to

be quashed and set aside.

33] As learned Commissioner has already held the

appellants entitled for the amount of Rs.3,34,580/- and as the

appellants have already received the amount of Rs.50,000/-

towards 'no fault liability', deducting the said amount from the

amount of Rs.3,34,540/-, the appellants become entitled to get

the amount of Rs.2,84,580/- towards compensation from

respondent Nos.1 to 6 and respondent No.7 jointly and severally

with interest at the rate of 7.5% per annum from the date of filing

of the petition.

34] As a result, the appeal is allowed. The impugned

judgment and order of the Commissioner, Workmen's

Compensation is set aside.

35] The appellants are held entitled to get the amount of

Rs.2,84,580/- with interest at the rate of 7.5% per annum from

the respondent Nos.1 to 6 and 7 jointly and severally, from the

date of filing of the petition before the Commissioner Workmen's

Compensation till realization of the amount.

36] In the circumstances, the parties are left to bear their

own costs.

JUDGE

NSN