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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

English: Banashankari Bagalkot temple

English: Banashankari Bagalkot temple (Photo credit: Wikipedia)

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 hereinabove, 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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