Karnataka High Court
Shivaji And Anr vs Saud Ahmed Chowdhari And Anr 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.
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C/W MFA.CROB No. 200018 of 2020
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
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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.
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C/W MFA.CROB No. 200018 of 2020
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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C/W MFA.CROB No. 200018 of 2020
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.?"
2014 KANT M.A.C. 96
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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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C/W MFA.CROB No. 200018 of 2020
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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The registry is directed to send back the Trial Court
records along with copy of this judgment.
Sd/-
JUDGE
KJJ
CT:PK
