Vimal and Others vs Mansharam Sharma and Others

B.C. Varma, J.—Sambhaji Bajirao Jadhav, a Senior Assistant, working in the Bhilai Steel Plant, died in an accident when a truck driven by the Respondent No. 1 and owned by the Respondent No. 2, dashed against the scooter driven by him on 4.5.1980. He died an instantaneous death resulting from that accident. On 5.9.1980 the Appellants, as his legal representatives, filed an application u/s 110-A of the Motor Vehicles Act claiming a sum of Rs. 2,72,800/ - as compensation for the death of Sambhaji Bajirao Jadhav. His pay at the relevant time was Rs. 1,200/ - per month. It so happened that the employer, viz. Bhilai Steel Plant, deposited a sum of Rs. 30,000/ - with the Commissioner, Workmen''s Compensation for payment to the persons entitled to receive the amount as dependents of deceased Sambhaji Bajirao Jadhav. A public notice was issued pursuant to which the Appellants appeared before him and received a sum of Rs. 19,925/ -. They approached the Commissioner, Workmen''s Compensation with a petition dated 10.12.1980 which can be found at page 41 of the Paper Book of this case. The fact of receipt of such amount was inserted in the claim petition before Claims Tribunal by an amendment. The Respondent then contested that in view of Section 110-AA of the Motor Vehicles Act read with Section 3(5) of the Workmen''s Compensation Act, 1923, the claim petition was not maintainable. The learned Claims Tribunal framed an issue in that behalf and recorded a finding in favour of the Respondents. It has been held that the Appellants elected to follow the remedy for compensation for the death of Jadhav before the Commissioner, Workmen''s Compensation and, therefore, they were not entitled to prosecute the other remedy through the claim petition made before the Claims Tribunal. The Appellants are aggrieved by the award so delivered dismissing their petition and have filed the present appeal.

Section 3(5) of the Workmen''s Compensation Act, 1923, is as follows:

(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury-

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

Section 110-AA of the Motor Vehicles Act, 1939 is as follows:

110-AA Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen''s Compensation Act, 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 claim such compensation under either of those Acts but not under both.

Section 110-AA of the Motor Vehicles Act leaves the claimants to choose their remedy of compensation for death or bodily injury to any person if the claim is maintainable both under the Workmen''s Compensation Act, 1923 as also u/s 110-A of the Motor Vehicles Act, 1939. What is prohibited thereunder is the making of claim under both the Acts. If the remedy is chosen under one Act, say under the Motor Vehicles Act, the claimants shall not be permitted at the same time to prosecute the claim on account of the same bodily injury or death under the Workmen''s Compensation Act. At the same time, Sub-Section 5 of Section 3 of the Workmen''s Compensation Act prohibits a claim for compensation to a workman in respect of injury if he has instituted in a civil court a suit for damages in respect of that injury either against the employer or against any other person. Similarly, if a remedy before the Commissioner, Workmen''s Compensation is availed of then that Sub-section (5) of Section 3 of the Workmen''s Compensation Act bars a suit for damages by a workman in any court of law.

What, therefore, has to be seen in the present case is whether before or after filing the claim petition on 5.9.1980 before the Motor Accidents Claims Tribunal, Durg, the Appellants made a claim before the Commissioner, Workmen''s Compensation. What we find is that the application dated 19.12.1980 was presented before the Commissioner, Workmen''s Compensation, that the amount was earlier deposited by the employer with that Commissioner. Obviously, that amount was deposited for payment to the legal representative of the deceased or to any person so entitled. It is in response to this notice that the Appellants appeared before the Commissioner, Workmen''s Compensation and the amount was disbursed to them as no other person came forward to lay a claim for that amount. From these circumstances, it cannot be said that when the claim petition was filed before the Motor Accidents Claims Tribunal, the Appellants had availed of the remedy under Sub-section (5) of Section 3 of the Workmen''s Compensation Act. The claim petition was made earlier and when they appeared before the Commissioner, Workmen''s Compensation it cannot be said that they appeared before that authority to lay any claim under the Workmen''s Compensation Act. They had only received certain amount made available to them by the employer of the deceased Sambhaji Bajirao Jadhav. We are, therefore, of opinion that the Appellants had availed one remedy before the Motor Accidents Claims Tribunal for compensation arising out of the death of Sambhaji Bajirao Jadhav during the motor accident and that while receiving the amount from the Commissioner, Workmen''s Compensation, they cannot be said to have availed of any remedy as such. The view that we are holding had found favour with the view held by the Division Bench of the Karnataka High Court in M.D., Kamataka Power Corporation Ltd. v. Geetha 1988 ACJ 251 (Karnataka). The facts of that case were practically similar to the facts involved in the present case. It was held that the claimant did not initiate and prosecute any remedy under the Workmen''s Compensation Act, 1923 but only received the amount which was deposited by the employer with the Commissioner. It was observed that in depositing the amount the employer purported to discharge his statutory obligation under the law. If the amount has been received by the claimants all that can be said is that such payment should be given deducting from the compensation awardable in these proceedings. It was held that the bar contained in Section 110-AA of the Motor Vehicles Act was not attracted because the claimants had not made any election u/s 110-AA Emphasis was laid upon a choice of a forum to be made by the claimants so that it could be inferred that the claimants have elected one of the two available forums. Relying upon the decision of the House of Lords, in Lissenden v. C.A.V. Bosch Ltd. 1940 AC 412, their Lordships of the Karnataka High Court in that case held that a mere receipt of money without more, does not indicate any election though that principle of election is recognised in Section 110-AA. We are in respectful agreement with the view so taken by the Division Bench of the Karnataka High Court.

The learned Claims Tribunal has relied upon a decision of learned single Judge of the Orissa High Court in National Insurance Company Ltd. Vs. Harerrushna Sahu and Others, . After reproducing the above-mentioned two provisions in the Workmen''s Compensation Act and the Motor Vehicles Act, the learned Judge rightly pointed out that the intention of the legislature is to prevent duplication of claim proceedings irrespective of whether the person against whom the claim is made is the same or different. It was pointed out that "he cannot at the same time initiate proceedings for claim in both the forums." The view taken, therefore, is not against the view that we have taken and the view taken by the Karnataka High Court in Geetha''s case 1988 ACJ 251 (Karnataka). The question, as we have said earlier, is one of election which can be done by initiation of proceedings in either of the two forums. Where, however, the claimants initiate proceedings only in one forum and exercise their option and take an election but a certain amount is made available to them although through the media of Commissioner, Workmen''s Compensation, it cannot be said that the proceedings have been initiated by the claimants in the other forums as well. In another case relied upon by the Trading Engineering Vs. Nirmala Devi and Another, the claimant after obtaining an award in her favour from the Claims Tribunal u/s 110-A of the Motor Vehicles Act filed another application under the Workmen''s Compensation Act. It was rightly held that she could not pursue both the remedies u/s 110-A of the Motor Vehicles Act and as also under the Workmen''s Compensation Act. She has to elect one of the two forums.

For the aforesaid reasons, this appeal succeeds and is allowed. The award made by the Additional Motor Accidents Claims Tribunal, Durg on 29.2.1981, in Claim Case No. 27 is hereby set aside. The case shall go back to the Additional Motor Accidents Claims Tribunal, Durg which shall decide it in accordance with law, and if finds the Appellants entitled to any amount as compensation, shall deduct the amount already received by them as was made available by the employer, from the amount found due to the Appellants. Costs of this appeal shall abide the ultimate result. Hearing fee Rs. 500/ -.