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oriental insurance company

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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 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 … Continue reading

whether in the case at hand the policy is an “Act Policy” or “Comprehensive/Package Policy”. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.” 14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant-insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a “Comprehensive/Package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly. 15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law. 16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference. 17. In the result, the appeals preferred by the insurer, namely, Oriental Insurance Company Limited are allowed to the extent indicated hereinabove and to that extent the award is set aside and the matter is remitted to the tribunal and the appeals preferred by the claimant for enhancement of compensation are dismissed. There shall be no order as to costs.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1345-1346 OF 2009 Oriental Insurance Company Ltd. …Appellant Versus Surendra Nath Loomba and Others …Respondents WITH CIVIL APPEAL NOS. 1347-1348 OF 2009 Surendra Nath Loomba …Appellant Versus Oriental Insurance Company Ltd. & ors. …Respondents   J U D G M E N T … Continue reading

MEDICAL NEGLIGENCE = These appeals are directed against the order dated 31.01.2007 of the Union Territory Consumer Disputes Redressal Commission, Chandigarh (hereafter, ‘the State Commission’) in complaint case no. 56 of 2006. By this order, the State Commission held the appellants (in F.A. no. 157 of 2007; hereafter, ‘the appellants’) guilty of medical negligence (deficiency in service) in treating the wife of the complainants/respondents 1 and 2 at the time of her delivery (which led to her untimely death) and allo wed their complaint by awarding compensation of Rs.20,26,000/- and costof Rs. 10,000/- to be paid equally by appellants 1 and 2. As Dr. G.S. Kochhar (representing appellant 1) and Appellant 2 were each insured with respondent 4 (the Oriental Insurance Company – OIC) for Rs.10 lakh, the State Commission directed respondent 4 to pay Rs.20 lakh out of the compensation awarded and the appellants 1 and 2 to share the balance amount equally. For convenience, we refer to the parties in accordance with their status in F.A. no. 158 of 2007. 18. As a result, we agree with the conclusion of the State Commission regarding Appellant 2 being guilty of medical negligence / deficiency in service, albeit for substantially different reasons, as discussed above. The relief granted by the State Commission is, however, based on the principles governing compensation in such cases and cannot be faulted. We also notice that as a sequel to this Commission’s direction dated 12.04.2007, complainant 1 had withdrawn Rs.6 lakh deposited by Deep Nursing Home and New India Assurance Co. Ltd. respectively in equal share of Rs. 3 lakh each. 19 (i) Consequently, we dismiss both the Appeals (no. 158 of 2007 and no. 193 of 2007) and direct Appellant 2 (Dr. Kanwarjit Kochhar) to pay Rs.20.26 lakh to complainant 1, as awarded by the State Commission. However, since complainant 1 has already withdrawn the sum of Rs. 6 lakh, the net payment due will be reduced to Rs. 14.26 lakh. In addition, Appellant 2 shall also pay Rs. 14,000/- to complainant 1 towards the costs of these proceedings. The payment (of Rs. 14.40 lakh) may be made within 6 weeks of the date of this order.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   FIRST APPEAL No. 158 of 2007 (From the Order dated 31.01.2007 in Complaint Case No. 56 of 2006 of the Union Territory Consumer Disputes Redressal Commission, Chandigarh) 1. Deep Nursing Home (Through Dr. Gurdeep Singh Kochhar) Kothi No. 3026, Sector 21 D, Chandigarh 2. Dr. Kanwarjit Kochhar                                                        Appellants … Continue reading

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