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Manager Hindustan Gum & Chemicals Ltd. v/s Chetnaben Hiteshbhai Rawal

    First Appeal No. 1982 Of 2021 With Civil Application (For Stay) No. 1 Of 2021
    Decided On, 23 November 2021
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE A.G. URAIZEE
    For the Appellant: Yogen N. Pandya (5766), Advocate. For the Respondent: Krupali Bhatt for Priyank P. Jhaveri(5303), Advocates.


Judgment Text
Oral Order:

1. In this appeal under Section 30 of the Employees Compensation Act is preferred by the appellant to assail the judgment and order dated 3.06.2021 passed by Ex- Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad in Workman Compensation (Fatal) Case No.12 of 2010.

2. By order dated 29.07.2021 notice for final disposal is issued and Mr. P.P. Jhaveri, learned advocate has entered appearance on behalf of the respondent workman.

3. The brief facts giving rise to the present appeal as could be gathered from memo of appeal and connected material are that the deceased Hiteshbhai was working as a Peon with the appellant from 01.04.2003 and during the course of service, he had expired in the vehicular accident and therefore, the respondents claimed compensation before the Ex-Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad. The appellant by filing reply denied the claim and after duty hours, the deceased had died and therefore, the appellant is not liable to pay the amount as claimed in the case. Learned Ex-Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad, without considering the settled provisions of law, passed impugned order and therefore, present Appeal.

4. I have heard Mr. Yogen N. Pandya, learned advocate for the appellant and Ms. Krupali Bhatt, learned advocate for Mr. P.P. Jhaveri, learned advocate for respondent.

5. Mr. Pandya, learned advocate submits that the respondent had filed two proceedings namely one under Section 166 of Motor Vehicles Act before the MACT and other proceedings before the Commissioner for Workman Compensation for claiming compensation in respect of death of deceased workman. Relying upon the decision of this Court dated 23.06.2017 passed in First Appeal No.1998 of 2017, he submits that once an option under Section 167 of M.V. Act is exercised by the workman and compensation is claimed under the said act, he cannot maintain another claim petition under Section 10 of Workman Compensation Act. He, therefore, submits that the impugned judgment and order may be quashed and set aside and the amount deposited by the appellant before the Commissioner may be refunded to the appellant.

6. Ms. Krupali Bhatt, learned advocate for the respondent could not dispute the legal position of law as enunciated by this Court in the First Appeal No.1998 of 2017.

7. It is not in dispute that two proceedings namely one under the M.V. Act and the other under the Workman Compensation Act were taken out by the respondent in respect of the death of workman in a vehicular accident. It is, therefore, very clear that the present appeal is clearly covered by the decision of this Court in the case of Madinabibi Dasotbhai Sheikh v. Jagdishchandra Ramanlal Kachiya (supra). It would not be out of place to reproduce the entire judgment which reads as under:-

“1. Heard Mr.P.C.Chaudhary, learned counsel for the appellants, Ms.Maitri Patel, learned counsel for defendant No.1 and Ms.Niyati Juthani, learned counsel for defendant No.2.

2. This appeal is directed against the judgment and award dated 11.06.2015 passed by learned Labour Court, Nadiad, in Workmen Case (Fatal) No.6/2008, whereby learned Labour Court was pleased to dismiss the claim application filed by the appellants.

3. Learned counsel for the parties have provided copies of the documents filed and evidence led before the learned Labour Court and with consent of the parties, the appeal is extensively heard finally.

4. The following facts emerge from the record of the appeal.

That, brother of the appellants viz. Deceased Abdul Rashid Dasotbhai Shaikh was in employment with defendant No.1 herein and was working as driver of Eicher Truck bearing No.GJ-7-X-7415, which is of the ownership of defendant No.1. It appears from the record that, on 14.04.1997, brother of the appellants was driving said truck and was passing through Ahmedabad

– Mumbai highway, at that time, another truck came from wrong side and dashed with the said truck and third truck also dashed with the truck of the brother of the appellants from behind and due to said accident, brother of the appellants died. The place where the said accident occurred comes under the local limits of Virar Police Station.

It further appears that, brother of the appellants was working as driver with defendant No.1 and his monthly wages were Rs.3,000/- per month and the said accident in question occurred during the course of his employment. Though respondent No.1 had knowledge about the death of brother of the appellants due to the said accident, he had not paid any amount till date and therefore, respondent No.1 is also liable to pay 50 % amount as penalty along with the amount of compensation. It is further case of the appellants that, when the accident occurred, brother of the appellants was 31 years old and his monthly wages were Rs.3,000/-, therefore, considering the age factor of 205.95, the appellants are entitled to get compensation of Rs.3,08,925/-.

Record further indicates that, the said truck was insured with respondent No.2 – Insurance Company on 05.11.1996 and therefore, it is the say of the appellants that the notice was issued by R.P.A.D on both the opponents, however, defendant No.1 refused to accept the notice and on that basis, claim application came to be filed by the appellants under the Workmen's Compensation Act, which came to be registered as Workmen Case (Fatal) No.6/2008.

Even the notice issued by learned Labour Court was not accepted by respondent No.1, reply came to be filed by respondent No.2 - Insurance Company at Exh:22, wherein defendant No.2 specifically contended that the claim petition itself is not maintainable in view of the provisions of Section 167 of the Motor Vehicles Act (hereinafter referred to as "MV Act" for short) as it only permits to file claim for compensation either under the Workmen's Compensation Act or under the MV Act. It was also contended that the claim petition was filed before learned Motor Accident Claims Tribunal, Nadiad, under the MV Act being M.A.C.P No.949/1997, which is already disposed of and hence, present application is not maintainable.

5. Parties led oral as well as documentary evidence before the learned Labour Court and the learned Labouor Court was pleased to frame the issues at Exh:17 and after hearing the parties and considering oral as well as documentary evidence on record, learned Labour Court was pleased to dismiss the application and hence, this appeal.

6. Mr.P.C.Chaudhary, learned counsel for the appellants submitted that the learned Labour Court has committed an error in coming to the conclusion that the compensation application is not maintainable and has wrongly appreciated the provisions of Section 167 of the MV Act and held that, it is barred by Section 167 of the MV Act. It was further contended that five issues, which were framed at Exh:7, found to be in favour of the appellants and therefore, learned Labour Court without taking into consideration the oral as well as the documentary evidences, has wrongly dismissed the compensation application. Mr.P.C.Chaudhary, has relied upon the judgment of this Court rendered in the case of Nasimbanu Wd/o. Sirajudin Amrudin Kaji Vs. Ramjibhai Bachubhai Ahir & Ors. [2005 (2) CACC 1084] and has contended that the appeal deserves to be allowed as prayed for.

7. Mr.P.C.Chaudhary, learned counsel for the appellants has also relied upon the judgment of the Apex Court in the case of Oriental Insurance Company Limited Vs. Dyamavva & Ors. [(2013) 9 SCC 406] and has submitted that the same applies to the present case and hence, the appeal be allowed as prayed for.

8. Per contra, Ms.Niyati Juthani, learned counsel for defendant No.2 has supported the impugned judgment and award and has stated that the appellants are not entitled to double compensation as they have already availed alternative by filing Motor Accident Claim Petition, which is already disposed of. It was further contended that the judgment of the Apex Court in the case of Oriental Insurance Company Limited (supra), as relied upon by the appellants, is not applicable as in the instant case, the appellants themselves have opted for the alternative, which is provided under Section 167 of the MV Act and learned Labour Court has committed no error in coming to the conclusion that the petition filed by the appellants was not maintainable and therefore, submitted that no interference is called for.

No other and further submissions have been made by learned counsel for the parties.

9. Having heard learned counsel for the parties, the following questions arise :-

(1) Whether the learned Labour Court has correctly come to the conclusion that in view of Section 167 of the MV Act, the petition is not maintainable under the provisions of the workmen's Compensation Act, and

(2) Whether the application under the Workmen's Compensation Act would be barred by the provisions of Section 167 of the MV Act, when the appellants - applicants have earlier preferred Motor Accident Claim Petition under the provisions of the Motor Vehicles Act and have given compensation.

10. Learned counsel for the parties have been heard on the aforesaid two questions, which arise in this appeal.

11. From the record of the appeal as well as from the judgment and award, it is an admitted fact that the accident has occurred on 14.04.1997 as described in the petition and at that time, brother of the appellants was in employment with defendant No.1 as driver and his monthly wages were Rs.3,000/-. It is also an admitted position that the appellants as heirs of deceased Abdul Rashid Dasotbhai Shaikh, had preferred Motor Accident Claim petition as provided under Section 167 of the MV Act, which came to be registered as M.A.C.P No.949/2007 and the compensation has been paid. It is, therefore, admitted position that present application filed under the provisions of the Workmen's Compensation Act was the second application by the same claimants and for the same accident. It is not denied by the appellants that they opted for filing motor accident claim petition under the provisions of the MV Act and that they have received compensation from the said Forum and thereafter, they have filed present appeal under Section 10 of the Workmen's Compensation Act.

12. Considering the ratio laid down by the Apex Court in the case of Oriental Insurance Company Limited (supra), the facts were that the employment suo motu paid the compensation under the Workmen's Compensation Act and in such situation, it is held by the Apex Court that, the application under Section 167 of the MV Act would be maintainable. The Apex Court in the said decision has observed thus:-

“16. 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.

18. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 of the Motor Vehicles Act, 1988, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmen’s Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral “suo motu” determination of the employer (the Port Trust) under Section 8 of the Workmen’s Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmen’s Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmen’s Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation under the Motor Vehicles Act, 1988. The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 of the Motor Vehicles Act, 1988, in the same manner, as has already been determined above.”

13. However, in the instant case, it is an admitted position that the appellants themselves resorted to the provisions of Section 167 of the MV Act. The Apex Court has considered the said aspect in the case of National Insurance Company Ltd. Vs. Mastan & Anr. [2006 (2) SCC 641], wherein the Apex Court has observed thus:-

“2. On the establishment of a Claims Tribunals in terms of Section 165 of the Motor Vehicles Act, 1988, the victim of a motor accident has a right to apply for compensation in terms of Section 166 of that Act before that Tribunal. On the establishment of the Claims Tribunal, the jurisdiction of the Civil Court to entertain a claim for compensation arising out of a motor accident, stands ousted by Section 175 of that Act. Until the establishment of the Tribunal, the claim had to be enforced through the Civil Court as a claim in tort. The exclusiveness of the jurisdiction of the Motor Accidents Claims Tribunal is taken away by Section 167 of the Motor Vehicles Act in one instance, when the claim could also fall under the Workmen's Compensation Act, 1923. That Section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the option in that behalf, being with the victim or his representative. But Section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation both under the Motor Vehicles Act, 1988 and under the Workmen's Compensation Act, because of a motor vehicle accident has the choice of proceeding under either of the Acts before the concerned forum. By confining the claim to the authority or Tribunal under either of the Acts, the legislature has incorporated the concept of election of remedies, insofar as the claimant is concerned. In other words, he has to elect whether to make his claim under the Motor Vehicles Act, 1988 or under the Workmen's Compensation Act, 1923. The emphasis in the Section that a claim cannot be made under both the enactments, is a further reiteration of the doctrine of election incorporated in the scheme for claiming compensation. The principle 'where, either of two alternative tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such tribunals in preference, to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter" (See R.V. Evans (1854) 3 E and B 363) is fully incorporated in the scheme of Section 167 of the Motor Vehicles Act, precluding the claimant who has invoked the Workmen's Compensation Act from having resort to the provisions of the Motor Vehicles Act, except to the limited extent permitted therein. The claimant having resorted to the Workmen's Compensation Act, is controlled by the provisions of that Act subject only to the exception recognized in Section 167 of the Motor Vehicles Act.

3. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act, 1988. Chapter X of the Motor Vehicles Act, 1988 deals with what is known as 'no fault' liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasizes what is emphasized by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen's Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act, 1988 overriding effect.

4. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under the Workmen's Compensation Act till the award was passe

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d and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen's Compensation Act by Section 167 of the Motor Vehicles Act. The claimant-respondent, is not entitled to do so. The High Court was in error in holding that he is entitled to do so. Appeal allowed accordingly.” 14. Thus, in the instant case, the appellants herein opted to have benefit of Section 167 of the MV Act. Having exercised the rights to evoke provisions of the said Act and having received compensation under the MV Act, the appellants would not be entitled to maintain another claim petition under Section 10 of the Workmen's Compensation Act. 15. In light of the aforesaid, the application filed by the appellants would be barred by Section 167 of the MV Act. The learned Labour Court has committed no error in coming to the conclusion that the claim petition filed under Section 10 of the Workmen's Compensation Act is not maintainable. Therefore, present appeal fails and is hereby dismissed. No costs. Record and proceedings, if any received from the learned Trial Court, be returned to the concerned Court forthwith.” 8. In view of the above, the application filed by the respondent under Section 10 of the Workman Compensation Act for compensation is barred by Section 167 of M.V. Act, and therefore, the lower authority has clearly fallen in error in awarding compensation in addition to the compensation awarded to the respondent under Section 166 of M.V. Act by the impugned order. I am, therefore, of the considered view that the impunged order of the lower authority cannot be sustained and warrants interference in this appeal. 9. For the reasons aforesaid, the appeal succeeds and is hereby allowed. The impugned judgment and order of the lower authority is hereby quashed and set aside. The appellant has deposited the amount of compensation in the lower authority which is ordered to be refunded to the appellant with accrued interest if any. 10. In view of the order passed in the main appeal, Civil Application does not survive and stands disposed of accordingly.
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