Bombay High Court
Oriental Insurance Co. Ltd. Thr. Divsnl ... vs Sayyad Gaffar S/O Sayyad Jafar, Nagpur ... on 23 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1056
1 FA640.10 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 640 OF 2010
APPELLANT : Oriental Insurance Co. Ltd.,
through its Divisional Manager, D.O. III,
Sharda Complex, Chhapru Nagar Chowk,
Central Avenue Road, Nagpur.
VERSUS
RESPONDENTS : 1] Sayyad Gaffar S/o Sayyad Jafar,
Aged 64 years, Occu. Nil (Appeal abated)
2] Smt. Jaibunnisa W/o Sayyad Gaffar,
Aged about 54 years, Occu. Household
3] Sayyad Mehboob S/o Sayyed Gaffar,
Aged about 27 years, Occu. Labour,
All R/o Post Kalgaon, Tah. Digras,
Dist. Yavatmal.
4] Mandeep Singh P. Bhatia,
Aged Major, Occu. Business,
R/o C/o Vinkl Road Lines, Gandhibagh,
Nagpur. (Appeal dismissed)
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Mr. T. T. Mirza, Advocate for the appellant
None for the respondents.
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CORAM : G. A. SANAP, J.
DATED : JANUARY 23, 2024.
ORAL JUDGMENT
2 FA640.10 (J).odt
1. Heard Mr. T. T. Mirza, learned advocate for the appellant.
Learned advocate for the respondents is absent. Perused the record and
proceedings.
2. This appeal is listed for final hearing. Learned advocate
appearing for respondent no.2 has failed to attend this appeal.
Respondent no.3 is not represented by any advocate. Respondent no.3
was served on merit. The appeal is already abated against respondent
no.1 and dismissed against respondent no.4.
3. In this appeal, the following substantial question of law
arises for consideration :
"Whether, in view of Section 167 of the Motor Vehicles Act,
1988, the claim under Section 22 of the Employees
Compensation Act, 1923, was maintainable in view of
exhausting the remedy of filing the claim under the Motor
Vehicles Act, arising out of the same accident ?
4. The facts leading to this question may be stated in brief :-
Deceased Sayyad Iftekhar died in an accident occurred on 23.03.1998.
The deceased was an employee of respondent no.4. Respondent nos.1
to 3, after the decision of the Motor Accident Claim Petition bearing
No. 638/1998, filed a claim petition under Section 22 of the
3 FA640.10 (J).odt
Employees Compensation Act, 1923 (hereinafter referred to as "the Act
of 1923"). According to them, the Motor Accident Claims Tribunal
granted the claim to the extent of 50% on the premise that there was
contributory negligence on the part of the driver, i.e. deceased Sayyad
Iftekhar. The claimants, therefore, filed the claim for compensation
before the Commissioner under the Act of 1923.
5. The appellant-Insurance Company opposed the claim. The
appellant denied the claim on merit. It was contended by the appellant-
Insurance Company that the claim was not maintainable in view of the
provisions of Section 167 of the M.V. Act. On merit also the claim was
opposed.
6. Learned Commissioner, on consideration of the evidence,
allowed the claim and held the appellant-Insurance company and
respondent no.4, jointly and severally liable, to pay the compensation.
7. This appeal is filed against the judgment and order dated
20.02.2008 passed by learned Commissioner under the Act of 2023 in
W.C.A. No. 16/2004.
4 FA640.10 (J).odt
8. Learned advocate for the appellant - Insurance Company
submitted that the claim was not maintainable in view of the mandate
of Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to
as "the M.V. Act"). Learned advocate further submitted that learned
Commissioner has not addressed this issue in the impugned judgment
and order. Learned advocate submitted that learned Commissioner was
duty bound to address this issue and record a finding. Learned advocate
submitted that on merit, the claim was not sustainable.
9. As noted above, learned advocate for respondent no.2
consistently remained absent and therefore, there was no argument on
behalf of respondent no.2. In my view, the fate of this proceeding can be
decided only on the basis of issue of maintainability. Section 167 of the
M.V. Act, which has been pressed into service, relevant for the purpose
of addressing the issue, is extracted below :-
"Section 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."
5 FA640.10 (J).odt
10. Learned advocate for the appellant, in support of his
submission, has relied upon a decision of the Hon'ble Apex Court in
National Insurance Co. Ltd. vs. Mastan, reported at (2006) 2 SCC 641.
In this decision, the Hon'ble Apex Court has considered the scope and
applicability of Section 167 of the M.V. Act. Paragraphs 23 to 30 would
be relevant for deciding the issue. Those paragraphs are extracted
below :
"23. 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.
24. 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.
25. In Nagubai Ammal and Others v. B. Shama Rao and
Others [AIR 1956 SC 593], it was stated:
"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
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must be confined to reliefs claimed in respect of the same
transaction and to the persons who are parties thereto."
26. In C. Beepathuma and others v. Velasari
Shankaranarayana Kadambolithaya and others [AIR 1965 SC
241], it was stated:
"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."
(see Maitland's lectures on Equity Lecture 18)
The same principle is stated in White and Tudor's Leading
Cases in Equity Vol. 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."
[See also Prashant Ramachandra Deshpande v. Maruti
Balaram Haibatti, 1995 Supp (2) SCC 539]
27. Thomas, J. in P.R. Deshpande v. Maruti Balaram
Haibatti [(1998) 6 SCC 507] stated the law, thus:
"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.
[See also Devasahayam (Dead) By LRs. v. P. Savithramma and
Others, (2005) 7 SCC 653]
7 FA640.10 (J).odt
28. 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.
29. We, therefore, with respect do not subscribe to the
views of the Full Bench of the Karnataka High Court.
30. 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."
11. The Hon'ble Apex Court has categorically held that as per
Section 167, the party concerned has an option to file a claim either
under the M.V. Act or under the Act of 1923. In the case before the
Hon'ble Apex Court, the claimant had filed an application under the
Act of 1923. After the decision of this application, a claim application
was filed under the M.V. Act. The Hon'ble Apex Court held that once
an option is exercised, the party concerned must go with that option
and cannot file a claim under the other enactment.
12. In my view, this issue ought to have been decided by the
learned Commissioner. Learned Commissioner, despite a specific
8 FA640.10 (J).odt
pleading in the written statement filed by the appellant-Insurance
Company, has failed to deal with the same. In my view, in view of the
express provisions of Section 167 of the M.V. Act, the claim filed under
the Act of 1923 was not maintainable. Accordingly, I answer the
question in negative. As a result of this, the appeal deserves to be
allowed.
13. Accordingly, the First Appeal is allowed.
i] The impugned judgment and order dated 20.02.2008,
passed by the learned Commissioner under the Employees
Compensation Act, 1923, Nagpur, in W.C.A. No. 16/2004, is set aside.
ii] The claim application is dismissed.
iii] The appeal stands disposed of. No order as to costs.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 25/01/2024 18:55:55
