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Wednesday, February 6, 2013

dual benefit under the two enactments.= On the establishment of a Claims Tribunal 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 die 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 & 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. 34. 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 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.”-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. 14. In the aforesaid view of the matter, we hereby affirm the determination rendered by the Motor Accidents Claims Tribunal, Bagalkot, and the High Court in awarding compensation quantified at Rs.11,44,440/- to the claimant. The Motor Accidents Claims Tribunal, Bagalkot, as also, the High Court, ordered a deduction therefrom of a sum of Rs.3,26,140/- (paid to the claimants under the Workmen’s Compensation Act, 1923). The said deduction gives full effect to Section 167 of the Motor Vehicles Act, 1988, inasmuch as, it awards compensation to the respondents-claimants under the enactment based on the option first exercised, and also ensures that, the respondents-claimants are not allowed dual benefit under the two enactments. 15. For the reasons recorded hereinabove, we find no merit in the instant appeal. The judgment rendered by the High Court is affirmed. The instant appeal is accordingly dismissed.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL NO.    937       OF 2013
                  (Arising out of SLP (C) No.1138 of 2012)

Oriental Insurance Co. Ltd.                        … Appellant
                                   Versus
Dyamavva & Ors.                                    … Respondents

                               J U D G M E N T

Jagdish Singh Khehar, J.


1.    Yalgurdappa  B.  Goudar  was  employed  as  a  Pump  Operator  in  the
Mechanical Engineering Department, and posted in the  Old  Power  House,  of
the Mormugao Port Trust, Mormugao (for  short,  ‘the  Port  Trust’).   
While
discharging his duties in his aforesaid capacity during the  course  of  the
second shift on 19.4.2003, while pillion  riding  on  a  motorcycle  bearing
registration mo.GA 02 L 8479, he was hit by a  tipper  bearing  registration
no.TM 07 V 4548.  
Consequent upon the  injury  suffered  by  Yalgurdappa  B.
Goudar in the said accident, Yalgurdappa B. Goudar died on  the  spot.   
The
aforesaid tipper was insured with the Oriental Insurance Company, i.e.,  the
appellant herein.
2.    The most important factual aspect in the present controversy is,  that
Dayamavva Yalgurdappa the  widow,  and  the  dependants  of  Yalgurdappa  B.
Goudar, filed a claim petition under Section 166 of the Motor Vehicles  Act,
1988 on 30.5.2003.  
Through the aforesaid claim petition, the widow and  the
children of the  deceased  Yalgurdappa  B.  Goudar  sought  compensation  on
account of the motor accident in the course whereof, the  husband/father  of
the claimants had lost his life.
3.    It is not a matter  of  dispute,  that  the  Port  Trust  addressed  a
communication dated 4.11.2003 to the  Workmen’s  Compensation  Commissioner,
Goa  intimating  him  of  the  motor  accident  referred   to   hereinabove.

Simultaneously, with the aforesaid intimation, the Port Trust  deposited  an
amount of Rs.3,26,140/- with the  Workmen’s  Compensation  Commissioner,  as
compensation payable to  the  dependants  of  the  deceased  Yalgurdappa  B.
Goudar under the Workmen’s Compensation  Act,  1923.   

Consequent  upon  the
receipt of the aforesaid intimation (as also, the deposit of  compensation),
the Workmen’s Compensation Commissioner issued a notice  to  the  dependants
of the deceased Yalgurdappa B.  Goudar.   
Consequent  upon  the  service  of
notice on the dependants of the deceased, hearing in the  matter  pertaining
to disbursement of compensation to the dependants of Yalgurdappa B.  Goudar,
was fixed for 20.4.2004.  On 20.4.2004 Dyamavva Yalgurdappa,  the  widow  of
the  deceased  Yalgurdappa  B.  Goudar,  appeared   before   the   Workmen’s
Compensation  Commissioner  and  her   statement   was   recorded   by   the
Commissioner.  
In her statement she acknowledged the demise of  her  husband
in a motor accident, while working in the employment of the Port  Trust,  in
the second shift on 19.4.2003.  
She also placed on  record  the  fact,  that
she had two sons and a daughter who were also dependents  of  the  deceased.
Based on her statement, she prayed  for  the  release  of  the  compensation
deposited by the Port Trust, with the Workmen’s  Compensation  Commissioner.
Since the claim raised by Dyamavva  Yalgurdappa,  widow  of  Yalgurdappa  B.
Goudar was not contested  by  the  employer,  the  amount  of  Rs.3,26,140/-
deposited by the Port Trust with the  Workmen’s  Compensation  Commissioner,
was ordered to be mainly released to  the  Dyamavva  Yalgurdappa,  widow  of
Yalgurdappa  B.  Goudar,  and  partly  to  the  daughter  of  the   deceased
Yalgurdappa B. Goudar.  
Out of the aforesaid amount, the daughter  was  held
to be entitled to a sum  of  Rs.50,000/-.   
The  order  dated  29.4.2004  is
available on the record of this case.  A elevant  extract  of  the  same  is
reproduced  hereunder,  which  fully  substantiates  the  factual   position
narrated hereinabove :
      “The opp. Party Mormugao Port Trust vide their letter dated 04.11.2003
      had informed that Shri Gowder Yellagurdappa, ex-Pump Operator who  was
      posted at the Old Power House while working on  the  second  shift  on
      19.04.2003 met with an accident with a tipper truck and  succumbed  to
      the injuries sustained.  The management further mentioned the date  of
      birth of the deceased employee was 01.04.1956 and his  monthly  salary
      was Rs.9,276/- at the time of his death  and  in  terms  of  Workmen’s
      Compensation Act, 1923, they deposited an amount of  Rs.3,26,140/-  in
      this office towards compensation to be paid to the dependants  of  the
      deceased employee.

      Notice was served  on  the  parties  and  the  hearing  was  fixed  on
      20.04.2004.  During the course of hearing on 20.04.2004 the  applicant
      stated that she is the wife of late Yellagurdappa Goudar.  Her husband
      was  working  for  Mormugao  Port  Trust  in  Mechanical   Engineering
      Department as a Pump Operator.  On 19.04.2003 her husband met with  an
      accident.  He was hit by a truck and succumbed to  the  injuries.   He
      did on the spot.  Besides her, she has got two sons viz., Shri Balappa
      Y. Goudar and Shri Basavraj Y. Goudar  aged  21  years  and  19  years
      respectively and one daughter Miss Yallava Y. Goudar, daughter aged 20
      years who were dependants on the earning of her husband.  She  further
      stated that she is aware that the Opp. Party has deposited  an  amount
      of Rs.3,26,140/- with this Authority which according to her the amount
      has been properly worked out as per Workmen’s Compensation  Act.   She
      prayed that the said amount may be awarded to her and children as  per
      the Workmen’s Compensation Act.

      The representatives  of  the  Opp.  Party  Mr.  S.V.  Verekar,  Labour
      Officer, who was present during the course of  hearing  on  20.04.2004
      did not desire to cross the Applicant.

      After having verified the records produced in the  course  of  hearing
      and the fact that the Opp.Party deposited  the  amount  accepting  the
      liability  to  pay  the  compensation,  I  hereby  order  to  pay  the
      compensation to the dependants of late  Yellagurdappa  Goudar  in  the
      following manner:

      …..”


Consequently, the aforesaid compensation under  the  Workmen’s  Compensation
Act, 1923 came to be released to the widow and daughter  of  Yalgurdappa  B.
Goudar.
4.    Besides the compensation determined under the  Workmen’s  Compensation
Act, 1923, the claim raised by Dyamavva Yalgurdappa  under  Section  166  of
the Motor Vehicles Act, 1988  was  independently  determined  by  the  Motor
Accident Claims Tribunal, Bagalkot.
Vide  an  award  dated  15.7.2008,  the
said Motor Accident Claims Tribunal awarded the  claimants  compensation  of
Rs.11,44,440/-.  
Out of  the  aforesaid  compensation,  the  Motor  Accident
Tribunal ordered a deduction of Rs.3,26,140/-, (i.e., the amount  which  had
been disbursed to the claimants by the Workmen’s Compensation  Commissioner,
vide order dated 29.4.2004).  
In the aforesaid view of the matter, a sum  of
Rs.8,18,300/- was ordered to be released to the claimants.
5.    The order passed by the  Motor  Accident  Claims  Tribunal,  Bagalkot,
dated 15.7.2008 was assailed by the Oriental Insurance  Company  Ltd,  i.e.,
the appellant herein, before the High Court of Karnataka  Circuit  Bench  at
Dharwad (hereinafter referred to as the ‘High Court’).
By its  order  dated
14.9.2011,  the  High  Court  affirmed  the  compensation  awarded  to   the
claimants by the Motor Accident  Claims  Tribunal,  Bagalkot.   Through  the
instant appeal, the Oriental Insurance Company Ltd. has assailed the  orders
dated  15.7.2008  and  14.9.2011  passed  by  the  Motor  Accidental  Claims
Tribunal, Bagalkot, and the High Court respectively,  awarding  compensation
to the dependants of Yalgurdappa B. Goudar under Section 166  of  the  Motor
Vehicles Act, 1988.
6.    The challenge raised by the appellant-Insurance Company  is  based  on
Section 167 of the Motor  Vehicles  Act,  1988,  which  is  being  extracted
hereinunder:
      “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.”



It is the vehement contention of the  learned  counsel  for  the  appellant,
that the respondents had  been  awarded  compensation  under  the  Workmen’s
Compensation Act, 1923, and as such, they  were  precluded  from  raising  a
claim for compensation under the  Motor  Vehicles  Act,  1988.   
Relying  on Section 167, extracted above., it  was  pointed  out,  that  an  option  was
available to the claimants to seek compensation either under  the  Workmen’s
Compensation Act, 1923, or the Motor Vehicles Act,  1988.    
The  claimants,
according to  learned  counsel,  had  exercised  the  said  option  to  seek
compensation under the Workmen’s Compensation Act, 1923. 
In this  behalf  it
was pointed out, that the claimants having accepted compensation  under  the
Workmen’s Compensation Act, 1923, were  precluded  by  Section  167  of  the
Motor Vehicles Act, 1988, to seek  compensation  (on  account  of  the  same
accident), under the Motor Vehicles Act, 1988.  
In  order  to  buttress  the
aforesaid submission, learned counsel for  the  appellant-Insurance  Company
has placed reliance on  a  decision  rendered  by  this  Court  in  National
Insurance Company Ltd.  V.  Mastan  &  Anr.,  (2006)  2  SCC  641.   
Pointed reliance was placed on the following observations recorded therein:
      “33. On the establishment of a Claims Tribunal 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 die 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 & 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.

      34. 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 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.”

Based on  the  observations  extracted  herein above,  it  was  the  vehement
contention of the learned counsel for the appellant, that  the  respondents-
claimants, having accepted compensation  under  the  Workmen’s  Compensation
Act,  1923,  must  be  deemed  to  have  exercised  their  option  to   seek
compensation under the Workmen’s  Compensation  Act,  1923.  As  such,  they
could not once again seek  compensation  under  Section  166  of  the  Motor
Vehicles Act, 1988.
7.    In order to succeed before this Court, it would be necessary  for  the
appellant to establish, that the respondents-claimants had  exercised  their
option to seek compensation under the Workmen’s Compensation Act, 1923,  and
therefore, were precluded from seeking  compensation  yet  again  under  the
provisions of the Motor Vehicles Act, 1988.  For, it is only  when  such  an
option has been exercised, that the provisions of Section 167 of  the  Motor
Vehicles  Act,  1988,  would  disentitle  the   claimant(s)   from   seeking
compensation under the Motor Vehicles Act, 1988.
8.    For determining the legal as well as  the  factual  position  emerging
out of the issue canvassed at the hands  of  the  learned  counsel  for  the
appellant, it is necessary for us  to  determine  the  ambit  and  scope  of
Sections 8 and 10 of the Workmen’s Compensation Act,  1923.   The  aforesaid
provisions are accordingly being extracted hereunder :
      “8. Distribution of compensation.—(1) No payment  of  compensation  in
      respect of a workman whose  injury  has  resulted  in  death,  and  no
      payment of a lump sum as compensation to a woman or a person  under  a
      legal disability, shall be made otherwise than  by  deposit  with  the
      Commissioner, and no such payment made directly by an  employer  shall
      be deemed to be a payment of compensation:
       
      Provided that, in the case of a deceased workman, an employer may make
      to any dependant advances on account  of  compensation  of  an  amount
      equal to three months' wages of such  workman  and  so  much  of  such
      amount as does not exceed the compensation payable to  that  dependant
      shall be deducted by  the  Commissioner  from  such  compensation  and
      repaid to the employer.
       
      (2) Any other sum amounting to not  less  than  ten  rupees  which  is
      payable as compensation may be  deposited  with  the  Commissioner  on
      behalf of the person entitled thereto.
       
      (3) The receipt of the Commissioner shall be a sufficient discharge in
      respect of any compensation deposited with him.
       
      (4) On the deposit of any money under sub-section (1), as compensation
      in respect of a deceased workman] the Commissioner shall, if he thinks
      necessary, cause notice to be  published  or  to  be  served  on  each
      dependant in such manner as he thinks fit, calling upon the dependants
      to appear before him on such date as he may fix  for  determining  the
      distribution of the compensation. If  the  Commissioner  is  satisfied
      after any inquiry which he  may  deem  necessary,  that  no  dependant
      exists, he shall repay the balance of the money  to  the  employer  by
      whom it was paid.  The  Commissioner  shall,  on  application  by  the
      employer, furnish a statement  showing  in  detail  all  disbursements
      made.
       
      (5) Compensation deposited in respect of  a  deceased  workman  shall,
      subject to any deduction made under sub-section  (4),  be  apportioned
      among the dependant of the deceased workman or any  of  them  in  such
      proportion as the Commissioner thinks fit, or may, in  the  discretion
      of the Commissioner, be allotted to any one dependant.
       
      (6) Where any compensation deposited with the Commissioner is  payable
      to any person, the Commissioner shall,  if  the  person  to  whom  the
      compensation is payable is not a woman  or  a  person  under  a  legal
      disability, and may, in other cases,  pay  the  money  to  the  person
      entitled thereto.
       
      (7) Where any lump sum deposited with the Commissioner is payable to a
      woman or a person under a legal disability, such sum may be  invested,
      applied or otherwise dealt with for the benefit of the  woman,  or  of
      such person during his disability, in such manner as the  Commissioner
      may direct; and where a half-monthly payment is payable to any  person
      under a legal disability, the Commissioner may, of his own  motion  or
      on an application made to him in this behalf, order that  the  payment
      be made during the disability to any dependant of the  workman  or  to
      any other person, whom the Commissioner thinks best fitted to  provide
      for the welfare of the workman.
       
      (8) Where an application made to him in this behalf or otherwise,  the
      Commissioner is satisfied that, on account of neglect of  children  on
      the  part  of  a  parent  or  on  account  of  the  variation  of  the
      circumstances of any dependant or for any other sufficient  cause,  an
      order of the Commissioner as to the distribution of any  sum  paid  as
      compensation to as to the manner in which any sum payable to any  such
      dependant is to be invested, applied or otherwise dealt with, ought to
      be varied, the Commissioner may make such orders for the variation  of
      the former order as he thinks just in the circumstances of the case:
       
      Provided that no such order prejudicial to any person  shall  be  made
      unless such person has been given an opportunity of showing cause  why
      the order should not be made or shall be made in any case in which  it
      would involve the repayment by a dependant of any sum already paid  to
      him.
       
      (9) Where the Commissioner varies any order under sub-section  (8)  by
      reason of the fact that payment of compensation to any person has been
      obtained by fraud, impersonation or other improper means,  any  amount
      so paid to or on behalf of such person may be recovered in the  manner
      hereinafter provided in section 31.”


                    xxx              xxx              xxx


      10.   Notice  and  Claim.—(1)  No  claim  for  compensation  shall  be
      entertained by a Commissioner unless notice of the accident  has  been
      given in the manner hereinafter provided as soon as practicable  after
      the happening thereof and unless the claim  is  preferred  before  him
      within two years] of the occurrence of the  accident  or  in  case  of
      death within two years] from the date of death:

      Provided that where the accident is the contracting of  a  disease  in
      respect of which the provisions of sub-section (2) of  section  3  are
      applicable the accident shall be deemed to have occurred on the  first
      of the days during which the workman was continuously absent from work
      in consequence of the disablement caused by the disease:
       
      Provided further that in  case  of  partial  disablement  due  to  the
      contracting of any such disease and which does not force  the  workman
      to absent himself from work the period of two years shall  be  counted
      from the day the workman  gives  notice  of  the  disablement  to  his
      employer:
       
      Provided further that if a workman who, having  been  employed  in  an
      employment for a continuous period, specified under sub-section (2) of
      section 3 in respect of that employment, ceases to be so employed  and
      develops  symptoms  of  an  occupational  disease  peculiar  to   that
      employment within two  years  of  the  cessation  of  employment,  the
      accident shall be deemed to have occurred on  the  day  on  which  the
      symptoms were first detected:
       
      Provided further that the want of or any defect or irregularity  in  a
      notice shall not be a bar to the entertainment of a claim—
       
           (a) if the claim is preferred in  respect  of  the  death  of  a
           workman  resulting  from  an  accident  which  occurred  on  the
           premises of the employer, or at any place where the  workman  at
           the time of the accident was working under the  control  of  the
           employer or of any person employed by him, and the workman  died
           on such premises or at such place, or on any premises  belonging
           to the employer, or died without having left the vicinity of the
           premises or place were the accident occurred, or
       
           (b) if the employer or any  one  of  several  employers  or  any
           person responsible to the employer for  the  management  of  any
           branch of the trade or business in which the injured workman was
           employed] had knowledge of the accident from any other source at
           or about the time when it occurred:
       
           Provided further that the Commissioner may entertain and  decide
           any claim to compensation in any case notwithstanding  that  the
           notice has not been given, or the claim has not  been preferred,
           in due time as provided in this sub-section, if he is  satisfied
           that the failure so to give the notice or prefer the  claim,  as
           the case may be, was due to sufficient cause.
       
      (2)   Every such notice shall give the name and address of the  person
      injured and shall state in ordinary language the cause of  the  injury
      and the date on which the accident happened, and shall  be  served  on
      the employer or upon any one of several employers, or upon any  person
      responsible to the employer for the management of any  branch  of  the
      trade or business in which the injured workman was employed.
       
      (3)   The State Government may require that any  prescribed  class  of
      employers shall maintain  at  these  premises  at  which  workmen  are
      employed a notice book, in the prescribed form, which shall be readily
      accessible at all reasonable times to any injured workman employed  on
      the premises and to any person acting bona fide on his behalf.
       
      (4)   A notice under this section may be served by delivering  it  at,
      or sending it by registered post addressed to, the  residence  or  any
      office or place of business of the person on whom it is to be  served,
      or, where a notice book is maintained, by entry in the notice book.”


9.    Sub-sections (1) to (3) of Section 8 extracted above,  leave  no  room
for any doubt, that when a workman  during  the  course  of  his  employment
suffers injuries resulting in his death, the employer  has  to  deposit  the
compensation  payable,  with  the   Workmen’s   Compensation   Commissioner.
Payment made by the employer directly to the dependants  is  not  recognized
as a  valid  disbursement  of  compensation.   The  procedure  envisaged  in
Section 8 of the Workmen’s Compensation Act, 1923, can be  invoked  only  by
the employer for depositing compensation  with  the  Workmen’s  Compensation
Commissioner.  Consequent upon such “suo motu” deposit of  compensation  (by
the  employer)   with   the   Workman’s   Compensation   Commissioner,   the
Commissioner may (or  may  not)  summon  the  dependants  of  the  concerned
employee,  to  appear  before  him  under  sub-section  (4)  of  Section   8
aforesaid.  Having satisfied himself about the  entitlement  (or  otherwise)
of the dependants to such compensation, the Commissioner  is  then  required
to order the rightful apportionment thereof amongst  the  dependants,  under
sub-sections (5) to (9) of Section 8  of  the  Workmen’s  Compensation  Act,
1923.  Surplus, if any, has to be returned to the employer.
10.    As  against  the  aforesaid,  where  an  employer  has  not  suo-motu
initiated action for payment of  compensation  to  an  employee  or  his/her
dependants, inspite of an employee having suffered injuries leading  to  the
death, it is open to the dependants of such employee, to raise a  claim  for
compensation under Section 10 of the Workmen’s Compensation Act, 1923.  Sub-
section (1) of Section 10 prescribes the period  of  limitation  for  making
such a claim as two years, from the date  of  occurrence  (or  death).   The
remaining sub-sections of Section 10  of  the  Workmen’s  Compensation  Act,
1923 delineate the other procedural requirements for raising such a claim.
11.   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.
12.   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.
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.
13.   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.
14.    In  the  aforesaid  view  of  the  matter,  we  hereby   affirm   the
determination rendered by the Motor  Accidents  Claims  Tribunal,  Bagalkot,
and the High Court in awarding compensation quantified at Rs.11,44,440/-  to
the claimant.  The Motor Accidents Claims Tribunal, Bagalkot, as  also,  the
High Court, ordered a deduction therefrom of a sum  of  Rs.3,26,140/-  (paid
to the claimants under the  Workmen’s  Compensation  Act,  1923).  
The  said
deduction gives full effect to Section 167 of the Motor Vehicles Act,  1988,
inasmuch as, it awards compensation to the respondents-claimants  under  the
enactment based on the option first exercised, and also  ensures  that,  the respondents-claimants  are  not  allowed  dual   benefit   under   the   two enactments.
15.   For the reasons recorded hereinabove, we find no merit in the  instant
appeal.  
The judgment rendered by the High Court is  affirmed.  The  instant
appeal is accordingly dismissed.

                                                           …..…………………………….J.
                                                          (Dr. B.S. Chauhan)



                                                           …..…………………………….J.
                                                      (Jagdish Singh Khehar)

New Delhi;
February 5, 2013

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