First Appeal No. 1342 of 2014 with CAF/1407/2014. Case: The New India Assurance Co. Ltd. Vs Ms. Bharati Adhik Patil & Ors.. High Court of Bombay (India)
| Case Number | First Appeal No. 1342 of 2014 with CAF/1407/2014 |
| Counsel | For Appellant: Mr. D.S. Joshi, Adv. and For Respondents: Mr. A.M. Kulkarni a/w A. P. Shinde, Advs. |
| Judges | Mrs. Mridula Bhatkar, J. |
| Issue | Motor Vehicles Act - Sections 163A, 167; Workmen's Compensation Act, 1923 - Sections 3(5), 10 |
| Judgement Date | May 04, 2016 |
| Court | High Court of Bombay (India) |
Order:
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Rule. By consent of the parties, rule made returnable forthwith and heard finally.
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In this appeal, the judgment and award dated 31.7.2013 passed by the learned Commissioner for Workmen's Compensation, Kolhapur, in Application (WCA) No.25/B-5 of 2009 is challenged by the insurance company.
BACKGROUND:
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The deceased Adhik Patil, aged 31 years old, was working as a driver on a tractor bearing No.MH-13J 8502 when the accident took place i.e., on 24.1.2004. The tractor belonged to one Vishwas Sadashiv Yadav, Respondent No.5, with whom the deceased was working as a driver. The deceased was proceeding in the tractor from Nigdi towards village Tawade, Taluka Shahuwadi, loaded with sugarcane. While taking U-turn, one unknown truck coming from the opposite side gave dash to the tractor. The tractor was upturned and the driver i.e., the deceased, died due to the injuries SO his dependents i.e., his widow, his minor daughter and parents filed claim under the Workmen's Compensation Act, 1923, as the deceased was in the employment of respondent No.5 and he was getting a salary of Rs.3,000/- per months plus Rs.1,500/- towards bhatta. In the said matter, the employer did not file written statement. However, the opponent No.1, i.e., the present appellant, filed written statement challenging the maintainability of the claim under the Workmen's Compensation Act (for short, 'WC Act') in addition to other challenges like employer-employee relationship, income of the deceased at the time of death, etc. The claimants stepped the box and gave evidence. So also, the insurance company tendered evidence. After considering the oral as well as documentary evidence of both the parties, the learned Commissioner allowed the application partly and thereby directed opponent No.2, the insurance company, with whom the tractor was insured to pay the amount of compensation of Rs.4,11,900/- with interest @ 12% p.a. and also 50% penalty.
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The applicants earlier had filed the claim for Rs.10,10,000/- before Motor Accident Claims Tribunal. Subsequently that claim was considered under section 163A of the Motor Vehicles Act. However, the learned Member of the Motor Accident Claims Tribunal, Kolhapur by its order dated 6.9.2007, who entertained it under section 163A of the Motor Vehicles Act held that the deceased was getting income of more than Rs.40,000/- per annum which is a pre-requisite condition for the claim under section 163A of the Motor Vehicles Act. Therefore, the Member, MACT, Kolhapur, also held that the evidence on record revealed that the accident took place due to the rash and negligent driving of the deceased only and the earning is more than Rs.40,000/- per year and so, compensation cannot be granted and hence, dismissed the claim application.
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Thereafter, the dependents filed claim application (WCA) No.25/C-8 of 2009 for Rs.4,58,662/- plus 50% penalty plus interest before the learned Commissioner for Workmen's Compensation, Kolhapur. In the said matter, the opponent No.1, the owner i.e., the employer and the opponent No.2 / insurance company appeared. The insurance company raised the point of maintainability that once a claim is preferred under the Motor Vehicles Act for compensation, then, another subsequent claim cannot be filed by the claimants under the Workmen's Compensation Act, as it is barred under section 167. The said objection was turned down by the learned Commissioner on the ground that the dependents or the claimants did not receive any compensation from the Motor Accident Claims Tribunal and therefore, his application under Workmen's Compensation Act for compensation is maintainable as he is not receiving compensation from two separate fora, so, the Commissioner partly allowed the claim.
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Mr.Joshi, the learned Counsel for the appellant, has submitted that the order passed by the learned Commissioner for Workmen's Compensation is not maintainable in law when the applicants have already filed application for compensation being Application (WCA) No.988 of 2014 before the Motor Accident Claims Tribunal, Kolhapur. Mr.Joshi, challenged the order of the learned Commissioner on two points. One on the point of maintainability in view of section 167 of the Motor Vehicles Act and secondly on the ground of limitation. The accident took place on 24.1.2004, however, dependents filed the application under the Workmen's Compensation Act in the year 2009. He submitted that section 167 is to be strictly interpreted. Section 167 states that when one claim is instituted before either the Tribunal or the learned Commissioner, then, he cannot file second claim petition before other forum. The section gives option to the claimants to claim compensation either under the Motor Vehicles Act or the Workmen's Compensation Act, 1923 but definitely not under both the enactments. While elaborating his submissions, he relied on section 3(5) of the Workmen's Compensation Act, 1923:
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The learned Counsel argued that section 3(5) of the Workmen's Compensation Act is a corresponding provision to section 167 of the Motor Vehicles Act. He submitted that these sections impose restriction on the claimants to elect the remedy amongst the two provided under the respective statutes. The option given is about 'filing' or 'claiming' the application for compensation, out of which only one can be chosen and once it is filed, the second door is automatically closed. Right to file before the other forum extinguishes due to the earlier proceedings. In support of his submission, the learned Counsel relied on National Insurance Company vs. Mastan & anr., 2006 (2) SCC 641. He relied on Oriental Insurance Co. Ltd. vs. Dyamavva, 2013 (9) SCC 406 and submitted that if the claimant has already exercised the option under the Workmen's Compensation Act, then he could not be granted compensation under the Motor Vehicles Act. The learned Counsel also relied on the judgment of the Allahabad High Court in the case of New India Assurance Co. Ltd. vs. MACT, Sitapur, Civil Revision No.1 of 2006 decided on 13.1.2014. He submitted that in this case, the law laid down by the Supreme Court in National Insurance Company vs. Mastan & anr. (supra) and Oriental Insurance Co. Ltd. vs. Dyamavva (supra) is discussed and it is held that if the claim is rejected under one enactment, no claim shall be maintainable under the other enactment.
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The learned Counsel submitted that in another case decided by the Himachal Pradesh High Court in New India Assurance Co. Ltd. Vs. Phulma...
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