Sabbirbhai Allahrakhabhai ... vs Rajubhai Jayantilal Bhimjiyani
2021 Latest Caselaw 18037 Guj

     C/FA/2643/2013                                JUDGMENT DATED: 03/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 2643 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.G.URAIZEE
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1    Whether Reporters of Local Papers may be allowed                    Yes
     to see the judgment ?

2    To be referred to the Reporter or not ?                             Yes

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                          SABBIRBHAI ALLAHRAKHABHAI KHALIFA
                                             Versus
                       RAJUBHAI JAYANTILAL BHIMJIYANI & 1 other(s)
==============================================================================
Appearance:
MRS NASRIN N SHAIKH(2451) for the Appellant(s) No. 1,1.1,1.2
HCLS COMMITTEE(4998) for the Defendant(s) No. 1
MR KV GADHIA(319) for the Defendant(s) No. 2
MR MIHIR H PATHAK(5261) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
                     Date : 03/12/2021
                     ORAL JUDGMENT

1. The judgment and order dated 23.07.2013 passed by the Commissioner for Workman Compensation, Amreli in W.C. (Fatal) No.3/2011 is challenged by the appellants in this appeal under Section 13 of the Workman Compensation Act, 1923 ('W.C. Act' for short).

2. Facts are not many and lie in a narrow compass.

3. Shabir, who was the son of the appellants was working as a driver on Maruti Van bearing registration

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No.GJ-1-HA-1488 of the ownership of respondent No.1. The deceased was going to Chitalia from Morbi on 24.11.2004 at around 8.30 p.m. the Maruti van met with an accident with truck being registration No. GJ-2-U-8357. The deceased - Shabir suffered serious injury to which he succumbed. An FIR in respect of this accident came to be registered with Babra Police Station being C.R. No.87/2004. The applicants being parents of the deceased filed W.C. (Fatal) Application No.3/2011 before the Commissioner for Workman Compensation, Amreli for compensation under Section 4A of W.C. Act against the respondents being employer owner of the vehicle and the insurer of the vehicle respectively.

4. The respondents entered their appearance upon service of process of the application. They resisted the claim application by filing reply at Exhibit - 20-24 respectively.

5. It was the contention of respondent No.1 that the deceased - Shabir had taken maruti van on the pretext of going to hospital. It was his further contention that the appellants herein had file one claim being MACP No.13 of 2005 in Accident Claims Tribunal at Amreli in which they have received the compensation in respect of this vary accident. It was, therefore, contended that the appellants herein cannot claim compensation in respect of the same accident from two fora. Alternatively, it was contended that if the appellants herein are held entitled to receive compensation, the respondent No.2 herein Insurance Company may be directed to pay the compensation as the insurer maruti van.

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6. It was the contention of respondent No.2 - Insurance Company in its reply that there was no relationship of employer and workman between the deceased and respondent No.1 herein. It was further contended that no notice within 24 hours of the occurrence of the accident was served by the respondent No.1 herein. Respondent No.2 is not liable to pay the compensation. It was the respondent No.2 herein also contended that the appellants herein cannot claim compensation from two forum in respect of the same accident. It was, therefore, urged that the claim application may be dismissed.

7. I have heard Ms. Nasrin N. Shaikh, learned advocate for the appellant, Mr. Mihir Pathak, learned advocate for the respondent No1 and Mr. K.V. Gadia, learned advocate for the respondent No.2 - Insurance Company.

8. Ms. Shaikh, learned advocate for the appellants submits that MACP was filed against the another driver and Insurance Company of the Truck which was involved in the accident. It is her submission that in the said MACP, the respondents were not parties. She would further submits that the respondent No.1 being the employer had not paid any compensation to the appellants for the death of their son during the course of employment. Relying upon the decision of the Supreme Court in the case of Ramchandra v. Regional Manager, United India Insurance Company Limited reported in AIR 2013 SC 2561 and in the case of Oriental Insurance Company Limited v. Dyamavva reported in AIR 2013 SC 1853. She submits that the appellants being parents of the deceased workman can claim compensation under both

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Workman Compensation Act as well as Motor Vehicles Act. She, therefore, urges that the appeal may be allowed and may be remitted to the Commissioner for fresh consideration on merit.

9. Mr. Gadia, learned advocate for the Insurance Company submits that the appellants had opted to claim compensation under the provisions of M.V. Act in first point of time, and therefore, in view of the bar contend under Section 167 of the M.V. Act, the appellants are precluded from claiming compensation under Workman Compensation Act. To buttress his submission, he has placed reliance on the decision of the Supreme Court in the case of National Insurance Company Limited v. Mastan and another reported in 2006 (2) SCC 641 and the decision of this Court dated 23.06.2017 rendered in First Appeal No.1998/2017 between Madinabibi Dasotbhai Sheikh v. Jagdishchandra Ramanlal Kachiya. He, therefore, submits that the Commissioner has not committed any error in dismissing the application on the ground of allegation of one forum by the appellants.

10. Mr. Mihir Pathak, learned advocate for respondent No.1 has adopted the arguments of Mr. Gadia, learned advocate.

11. Section 167 of the Motor Vehicles Act provides for option regarding claims for compensation in certain case and it reads as under:-

"167. Option regarding claims for compensation in certain cases. - Notwithstanding anything

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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.

12. It is thus eminently clear from the aforesaid provision of Section 167 of M.V. Act that an option is given to the person entitled to compensation where the death, or bodily injury to any person gives rights to a claim for compensation under the M.V. Act and also under W.C. Act, he may, without prejudice to the provisions of Chapter X, claims such compensation under either M.V. Act or W.C. Act but he cannot claim compensation under both.

13. The contention of Ms. Shaikh, learned advocate on the basis of decision of the Supreme Court in the case of Ramchandra (supra) and Dyamavva (supra) has no merits.

14. The Supreme Court in the case of Ramchandra (supra) has laid down proposition of law in paragraph No.20 as under:-

"20. The claimant/appellant is surely entitled to the amount of compensation over and above the Workmen's Compensation Act in view of the ratio of the decisions referred to hereinbefore. The rider no doubt is that the statutory liability cannot be more than what is required

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under the statute under Section 95 of the Motor Vehicles Act which cannot bind the parties or prohibit them from contracting or creating unlimited or higher liability to cover wider risk and the insured is bound by the terms of the contract specified in the policy in regard to unlimited or higher liability as the case may be. Thus, it is although correct that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that insofar as the entitlement of the claimant/deceased cleaner of the vehicle is concerned, the same cannot be restricted to the compensation under the Workmen's Compensation Act and is entitled to compensation even under the Motor Vehicles Act which will depend upon the terms and conditions of the policy of insurance."

15. It is held as under in case of Dyamavva (supra) in paragraph Nos. 11 & 12 as under:-

"11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar "suo motu" under Section 8 of the Workmen's Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmen's Compensation Commissioner on 4.11.2003. Thereupon, the Workmen's Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmen's Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of

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Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportions.

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 respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- 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."

16. It is an undisputed fact in the case on hand that the appellant had preferred an application under Section 166 of the M.V. Act in the Motor Accidents Claim Tribunal in respect of the selfsame accident to seek compensation from the driver owner and Insurance Company of the offending truck bearing registration No. GJ-2-U-8357

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before filing application in labour Court for compensation under W.C. Act. It is also an undisputed fact that the owner i.e. respondents herein being the owner and insurer of the vehicle which was being driven by the deceased in his capacity as an employee of respondent No.1 herein were not impleaded as party opponents.

17. The question, therefore, which falls for consideration in this appeal is whether the appellants can seek claim under W.C. Act on specious plea that the Accident Claims Tribunal has awarded compensation to the appellants from the owner and Insurance Company of the other vehicle which was involved in the accident, and therefore, the employer and Insurance Company are liable to pay compensation under W.C. Act.

18. In my opinion the answer to the above question is empathetic no as same is also clear from the decision which are relied upon by the learned advocate for the appellant as well as learned advocate for the respondent.

19. The Supreme Court has very clearly stated in the case of Ramchandra (supra) that if the entitlement of the claimants to claim compensation under both enactments i.e. M.V. Act and W.C. Act depend upon the terms of contract of insurance. It is very clear from this decision that one vehicle was involved in the accident which was of ownership of the owner of the employer and employee had exercise the option of claiming compensation under Section 167 of M.V. Act first in point of time and thereafter also claimed compensation under W.C. Act. Considering the terms of the policy which is a contract

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between the insured and insurer recorded the findings that if as per the terms of insurance policy if the claimant is entitled to receive compensation under both Act than the bar of Section 167 of M.V. Act would not operate.

20. In the case of Dyamavva (supra) the employer had suo moto deposited the amount of compensation with Workman Compensation Commissioner during the pendency of the Claim Petition preferred by the claimant. Such suo moto deposit of the compensation by the employer with the Commissioner was not considered as an exercise of option by the claimants, and therefore, the claimants were not therefore deemed to be precluded from seeking compensation under the M.V. Act. In that case also the amount of compensation suo moto deposited by the employer was deducted from the compensation awarded to the claimants by the Claims Tribunal under Section 166 of M.V. Act. It is thus cleanly clear from this decision also that the claimant cannot get the benefits under the M.V. Act as well as W.C. Act.

21. The legal situation is cleanly enunciated by the Supreme Court in the case of Mastan (supra) in paragraph No.33, 34 & 35 as under:-

"33. I respectfully agree with the reasoning and conclusion of my learned brother.

34. On the establishment of a Claims Tribunals in terms of Section 165 of the Motor Vehicles Act, 1988, the victim of a motor accident has a right to apply for compensation in terms of Section 166 of that Act before that Tribunal. On the establishment of the Claims Tribunal, the jurisdiction of the Civil Court to entertain a claim for compensation arising out

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of a motor accident, stands ousted by Section 175 of that Act. Until the establishment of the Tribunal, the claim had to be enforced through the Civil Court as a claim in tort. The exclusiveness of the jurisdiction of the Motor Accidents Claims Tribunal is taken away by Section 167 of the Motor Vehicles Act in one instances, when the claim could also fall under the Workmen's Compensation Act, 1923. That Section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the opition in that behalf, being with the victim or his representative. But Section 167 makes it clear that a claim could not e maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation both under the Motor Vehicles Act, 1988 and under the Workmen's Compensation Act, because of a motor vehicle accident has the choice of proceedings under either of the Acts before the concerned forum. By confining the claim to the authority or Tribunal under either of the Acts, the legislature has incorporated the concept of election of remedies, insofar as the claimant is concerned. In other words, he has to elect whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the Section that a claim cannot be made under both the enactments, is a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The principle 'where, either of two alternative tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such tribunals in preference, to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter" (See R.V. Events (1854) 3 E & B 363) is fully incorporated in the scheme of Section 167 of the Motor Vehicles Act, precluding the claimant who has invoked the Workmen's Compensation Act from having resort to the provisions of the Motor Vehicles Act, except to the limited extent permitted therein. The claimant having resorted to the Workmen's Compensation Act, is controlled by the provisions of that Act subject only to the exception recognized in Section 167 of the Motor Vehicles Act.

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35. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recurse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicle Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as 'no fault' liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicles. Ss. 141 and 142 deal with particular claims on the basis of no fault liability and S.143 re-emphasizes what is emphasized by S. 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen's Compensation Act. S.144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988 overriding effect."

22. In light of the aforesaid settled provisions of law, I am of the considered view that the Commissioner has committed no error much less an error of law in rejecting the application of the appellants as having been barred under Section 167 of M.V. Act.

23. For the foregoing reasons, the appeal fails and is hereby dismissed.

(A.G.URAIZEE, J)

Manoj