Rajasthan High Court

Hanif vs Ramesh Bharti And Ors on 18 May, 2022

Bench: Anoop Kumar Dhand

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 1819/2004

Hanif son of Sh. Jamal, aged about 32 years, r/o Nundri
Mahendratan, Tehsil Beawar District Ajmer (Raj.)
                                                                      ----Appellant
                                    Versus
1. Ramesh Bharti son of Sh. Sohan Bharti r/o Village and post
Peeplaj Via Khara, Distt. Ajmer (Raj.) (Driver of vehicle Jeep
No.RJ-01-P-2196)
2. Ram Lal son of Sh. Banshi Lal, r/o Leedi Tehsil Peesangan,
Distt. Ajmer. (Power of Attorney holder Sh. Ramesh Bharti son of
Sh. Sohan Bharti r/o Village Peeplaj, Tehsil Masooda, District
Ajmer (Raj.), (Registered Owner of Vehicle Jeep No.RJ-01-P-
2196)
3. The Oriental Insurance Company Ltd., through its Regional
Manager, Regional Office at Anand Bhawan, Sansar Chandra
Road, Jaipur.
                                                                 ----Respondent

For Appellant(s)           :     Mr. J.P. Gupta
                                 Mr. Prashant Sharma
                                 Mr. Ravi Singh
For Respondent(s)          :     Mr. Santosh Singh for
                                 Mr. Ghanshyam Singh



        HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                 Judgment

18/05/2022

This misc. appeal under Section 173 of the MV Act, has been

directed against the impugned judgment and award dated

08.07.2004 passed by the Court of Motor Accident Claims Tribunal

(Addl. District and Sessions Judge) (Fast Track), Beawar (Raj.)

(hereinafter referred to as 'the Tribunal') in Claim case

No.384/2004, by which the claim petition filed by the claimant-

appellant has been rejected on the ground that the injured was

(2 of 6) [CMA-1819/2004]

working under the employment of respondent No.2 i.e. registered

owner of jeep No. RJ-01-P-2196, hence, he is not entitled to get

compensation under the provisions of Motor Vehicles Act, but

liberty was given to the claimant-appellant to file application under

the provisions of Workmen's Compensation Act, 1923.

Facts, in brief, of the case are that the injured was

Khalasi/cleaner on vehicle No. RJ-01-P-2196. On 15.03.1999, he

sustained injuries while repairing the radiator, when driver started

the vehicle suddenly, in a rash and negligent manner and due to

which jeep started and claimant-appellant sustained injuries in his

leg. For the above act, FIR No.116/99 was registered with Police

Station Beawar City for the offences punishable under Section 279

and 337 IPC and after investigation charge-sheet submitted

against the driver of the jeep for the above-mentioned offences.

The injured-claimant submitted the claim petition seeking

compensation of Rs.2,20,000/- against the driver/owner and

Insurance Company of the vehicle before the Tribunal. The

Tribunal issued notices to the respondents. Respondent Nos.1 and

2 refused to receive the summons and respondent No.3 filed its

reply and denied the averments made in the claim petition and

submitted that excess compensation has been claimed.

On the basis of pleadings of the parties, the Tribunal framed

four issues and decided issue Nos. 1 to 3 in favour of the claimant.

But while deciding issue No.4, the Tribunal rejected the claim

petition of the claimant-injured by observing that the injured was

working under the employment of owner of the vehicle. Hence, he

is not entitled to get compensation under the provisions of Motor

Vehicles Act, 1988 (for short 'Act of 1988'). However, liberty was

(3 of 6) [CMA-1819/2004]

given to him to file claim petition under the provisions of

Workmen's Compensation Act, 1923 (for short 'Act of 1923').

Feeling aggrieved by the impugned judgment and award

dated 08.07.2004, instant appeal has been preferred.

Counsel for the appellant submitted that as per the

provisions contained under Section 167 of the Act of 1988, the

Tribunal could not have rejected the claim petition because the

claimant has both options to file claim petition either under 'the

Act of 1988' or under the 'Act of 1923'. In support of his

contentions, he has placed reliance on the judgment of Hon'ble

Supreme Court in the case of National Insurance Company

Ltd. vs. Prembai Patel & Ors. reported in 2005 ACJ 1323

and the judgment of this Court in the case of Devendra & anr.

Vs. Sobhag Bai & Ors. reported in 2007 ACJ 877.

Learned counsel further argued that in view of the statutory

provisions contained under Section 167 of the Act of 1988 and in

view of settled proposition of law, the matter requires

reconsideration.

Per contra, learned counsel for the respondent opposed the

arguments raised by counsel for the appellant and submitted that

no illegality has been committed by the Tribunal while rejecting

the claim petition.

Counsel for the respondent further submitted that while

rejecting the claim petition of the claimant, liberty was granted to

him to approach the Commissioner, Workmens Compensation to

get claim under the Act of 1923. Hence, no interference is

required by this Court.

Heard counsel for the parties and perused the record.

(4 of 6) [CMA-1819/2004]

Before proceeding further, it is necessary to quote Section

167 of the Act of 1988, 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 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."

Bare perusal of Section 167 of the Act of 1988, shows that

this provision provides for an option to the claimant to submit

claim petition either under the provisions of the Act of 1988 or

under the provisions of the Act of 1923.

Section 167 of the Act of 1988 contains non obstacle clause

provided to such option and it deals with "the doctrine of election".

Here in the instant case, the claimant has elected and chosen to

file the claim petition under the provisions of Act of 1988.

The Hon'ble Apex Court in the case of Prembai Patel

(supra), has dealt with the issue, which is involved in the present

matter in para No.16 & 17 as under:-

"16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly.

(5 of 6) [CMA-1819/2004]

17. The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid

herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award."

Similarly, this Court in the case of Devendra (supra), has

dealt with the issue in Para 5 of the judgment, which reproduce as

under:-

"Thus, from the perusal of the above provisions, it is clear that if death of or bodily injury to any person gives rise to a claim for compensation under the Act of 1988 as well as under the Workmen's Compensation Act of 1923, then in such circumstances person entitled to compensation may file a claim petition under either of those two Acts."

In view of the statutory provisions contained under Section

167 of the Act of 1988, which provides both remedies to the

claimant to file claim petition either under the provisions of Act of

1923 or under the provisions of Act of 1988. But, it nowhere

restricts to file claim petition under a particular Act. The only

restriction under this Section is to avail only one remedy and not

both.

In view of the discussion made hereinabove and looking to

the settled position of law given by the Hon'ble Supreme Court in

the case of Prembai Patel (supra), the matter requires

reconsideration.

Resultantly, the impugned judgment and order dated