The New India Assurance Company Limited vs Smt Seema Devi wife of late Shri Raju Kandera

Since the controversy raised in the instant appeal is no more

res-integra as agreed upon by the learned counsel for the parties;

the matter was taken up for final disposal, with the consent of the

learned counsel for the parties, at this stage.

The instant civil misc. appeal projects a challenge to the

award made by the Commissioner, Employees Workmen''s

Compensation Act, 1923, (for short, ''the Act of 1923'') dated 9 th

April, 2012, awarding total compensation of Rs. 4,15,960/-, along

with interest @ 12% p.a.; of which the appellant-New India

Assurance Company, is aggrieved of.

Learned counsel for the appellant, Mr. V.S. Yadav, reiterating

the pleaded facts and grounds of the memo of appeal, primarily

argued that the Commissioner, Employees Workmen''s

Compensation Act, 1923, committed an error of law while

accepting the claim petition under the Act of 1923, for against the

same cause of action a claim petition under the Motor Vehicles

Act, 1988, (for short, the Act of 1988''), instituted before the Motor

Accident Claims Tribunal, Jaipur District, Jaipur, being claim

petition No.212/2009 (Smt. Seema Devi & Ors. Vs. Hasandeen &

Ors.), under Section 140 / 166 of the Act of 1988, was adjudicated

upon vide award dated 4th October, 2010, allowing compensation

to the tune of Rs.4,28,000/-, along with interest @ 6% p.a. w.e.f

date of institution of the claim petition i.e. 10 th December, 2008. A

copy of the award dated 4th October, 2010, was produced for

perusal of this Court.

Referring to the opinion of the Supreme Court in the case of

Oriental Insurance Company Limited Vs. Dyamavva and

Ors.: (2013) 9 SCC 406, learned counsel asserted that wherein

the concurrent jurisdiction was provided by the statutes and the

claimants chose one forum, they cannot be allowed to institute

proceedings before the alternative.

Per contra; learned counsel appearing for the claimant-non-

appellants, relied upon the opinion of a Coordinate Bench of this

Court in the case of New India Assurance Company Limited

Vs. Bidami and ors.: MACD 2009 (2) 528.

Taking note of the rival submissions in the backdrop of the

opinions as referred to and relied upon by the counsel for the

parties, the matter was adjourned on 3rd January, 2017, allowing

an opportunity to the counsel for the parties to ascertain the fact

whether the opinion of the Coordinate Bench of this Court in the

case of Smt. Bidami (supra), was challenged any further or not.

Learned counsel appearing for the appellant produced a copy

of the order dated 17th April, 2014, wherein the opinion of the

Coordinate Bench of this Court in the case of Smt. Bidami

(Supra), was subjected to challenge in Civil Appeal No.4635/2014

whereupon the Supreme Court set aside the adjudication of this

Court in the case of Smt. Bidami (Supra).

I have heard the the learned counsel for the parties.

The undisputed factual matrix that the claimant-non-

appellants instituted a claim petition under Section 140 / 166 of the

Act of 1988 on 10th December, 2008, that was adjudicated upon

by the Motor Accident Claims Tribunal, Jaipur, on 4 th October,

2010, allowing compensation to the tune of Rs.4,28,000/-, along

with interest @ 6% p.a., is not in dispute. So also the fact that

claim for compensation was also raised before the Commissioner,

Workmen''s Compensation Act, 1923, which has been adjudicated

upon vide impugned order dated 9th April, 2010, is admitted.

In the case of Dyamavva and Ors.(Supra), the Apex Court

of the land examined somewhat similar controversy in the

backdrop of the contemplation under Section 167 of the Act of

1988, as to option regarding claims for compensation in certain

cases. It will be relevant to consider the text of Section 167 of the

Act of 1988, which reads thus:

"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."

Dealing with the issue as to election of one forum only where

statutes provided for options, the Apex Court of the land, held

thus:

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

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. 17. 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."

In the case of Smt. Bidami (Supra), the Supreme Court

while dealing with the issue of jurisdiction wherein the concurrent

jurisdiction was available, the claimants were held to be entitled to

avail of remedy and chose one forum only. It will be relevant to

consider the text of the order made by the Apex Court on 17 th

April, 2014, which reads thus:

"Learned counsel for the appellant relies on judgment of this Court titled as National Insurance Company Limited versus Mastan and another reported in 2006 (2) SCC 641 in support of the submission that if both the remedies under the Motor Vehicles Act, 1988 and the Workmen''s Compensation Act, 1923 are available, the respondents were required to opt for either one of the remedies. The respondents cannot claim compensation under both the acts. In the aforesaid judgment, it is held as follows :- "22. 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. 23. 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 other 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.

In view of the above, the judgment of the High Court cannot be sustained. In view of the above, we allow this appeal and set aside the judgment of the High Court."

For the reasons and discussions aforesaid and in view of the

authoritative pronouncements made by the Apex Court of the

land; the appeal succeeds and is hereby allowed.

The impugned order made by the Commissioner, Employees

Workmen''s Compensation Act, 1923, dated 9 th April, 2012, in

claim case No.WCC/F 293/2010 (Smt. Seema Devi & Ors. Vs.

Imran Tank & Anr.), cannot be sustained and is hereby quashed.

However, in the facts and circumstances of the case, there

shall be no order as to costs.