National Insurance Co. vs Parveen and Others

S.S. Sudhalkar, J.—This appeal is filed by the insurance company against whom the award was passed by the learned Commissioner under Workmen''s Compensation Act (hereinafter referred to as "the Commissioner"). Respondents 1 and 2 had filed the claim petition for compensation under the Workmen''s Compensation Act (hereinafter referred to as the Act) because Rajinder Kumar alias Rajinder Singh who was employed with respondent 3 as a driver on the motor van died due to accident. The van, which the deceased was driving, met with an accident with a truck of the Punjab State Electricity Board, resulting into the death of three occupants of the Van, including Rajinder Kumar. The learned Commissioner awarded a compensation of Rs. 84,716 and also a penalty at 15 per cent and interest at 6 per cent per annum. As stated earlier, this appeal is filed by the Insurance Company challenging the award of the learned Commissioner,

During the course of arguments, a preliminary point was raised by the learned counsel for the appellant that for the very accident and the death caused in the accident, the present claimant-respondents had filed a claim petition under the Motor Vehicles Act (in short, MVA) before the Motor Accident Claims Tribunal, Bhatinda (in short, MACT), being MAC No. 4 of August 9, 1991. It was decided on April 12, 1994. The contention of the learned counsel for the appellant is that when the MAC petition was filed before the MACT, the appellant was estopped from filing a claim petition under the Act. He has relied on Section 167 of the MVA. It 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."

Relying on these provisions, learned counsel for the appellant argued that the MAC petition filed before the MACT was first in point of time. He has produced a copy of the judgment of the MACT, Bhatinda, which shows that it is MAC case No. 4 of August 9, 1991. From the record of this case, it is found that the petition under the Act was presented on May 5, 1992.

Learned counsel for the appellant read over to me some lines of the" award passed by the learned Commissioner wherein it has been mentioned that:

"the amount shall be released to applicant only after she files an affidavit to the effect that she has not claimed any compensation from the MACT."

The learned counsel for the appellant relied on the case of Ms. Daropti Devi and Ors. v. Modern Auto Enterprises and Anr.1987 (1) 91 PLR 28. It is a judgment of this Court in which the learned single Judge has held as under;

"in view of the judgment of this Court in Trading Engineering New Delhi v. Nirmala Devi, no meaningful argument could be raised on behalf of the appellant to challenge the impugned order. It has been held by this Court vide said judgment that persons who are entitled to compensation can claim the same either under the Workmen''s Compensation Act or under the Motor Vehicles Act. Admittedly, the appellants have claimed the compensation under the Motor Vehicles Act. Consequently, the appeal fails and is dismissed with no order as to costs."

In view of this position, the appeal deserves to be allowed. u/s 167 of the MVA, the appellant has the option to file petition under either of the Acts. However, he has chosen to file petition under both the Acts. First in point of time was the petition under the MVA. Moreover, the petition under the MVA also stands decided as per the copy of the judgment produced in this case before the decision of the Commissioner. It is not shown, by any of the parties that the judgment has not become final. The MACT had decided the case on April 12, 1994. Moreover, the learned Commissioner had made the above observation regarding payment of the awarded amount in case a petition under MVA was filed. In view of the above factors, the award of the learned Commissioner deserves to be set aside.

As a result, this appeal is allowed. The award of the learned Commissioner is set aside and the petition of the claimant-respondents is dismissed.