We are of the opinion that merely for the reason that earlier the claimants have proceeded under the MV Act and later, withdrew the said proceedings and filed WCC for compensation under the Workmen's Compensation Act, it cannot be held that the subsequent claim is barred by Section 167 of the MV Act. Moreover, the interim award which was received under Section 140 of the MV Act is also seen adjusted towards the compensation granted by the impugned order. {Para 8}
9. In the above view, we find that the application filed before the Commissioner for Workmen's Compensation under Section 22 of the Workmen's Compensation Act is not hit by the bar of Section 167. In the above view, there is no illegality or impropriety in the impugned award granting compensation under the Workmen's Compensation Act after deducting the interim award of Rs. 50,000/- received under Section 140 of the Motor Vehicles Act.
In the High Court of Kerala at Ernakulam
(Before K. Harilal and Annie John, JJ.)
United India Insurance Company Limited Vs Mary alias Baby and Others
Decided on December 14, 2018
The Judgment of the Court was delivered by
K. Harilal, J.:— This appeal is filed against the order of the Commissioner for Workmen's Compensation, Ernakulam in WCC No. 2 of 2003 directing the appellant to pay a sum of Rs. 96,200/- with interest from the date of application to the respondent herein. The respondent filed an application under Section 22 of the Workmen's Compensation Act, 1923 seeking a compensation of Rs. 1,75,000/- for the death of one Xavier in an accident occurred on 22.04.1996. According to respondents 1 to 5, he was employed as a driver of a car bearing registration No. KBE 5302 owned by one Trissa, the deceased mother of respondents 6 and 7, and while he was driving the aforesaid vehicle, it collided with a lorry bearing registration No. TDL/5697, as a result of which he sustained fatal injuries and later succumbed to the said injuries. On the aforesaid premises, they have filed an application seeking compensation from the appellant herein.
2. The appellant herein resisted the said application contending that the accident occurred due to the collision of two vehicles and the applicant filed O.P.(MV) No. 2080 of 2006 against the owner, driver and the insurer of the lorry and the Motor Accident Claims Tribunal passed an interim amount of Rs. 50,000/- under Section 140 of the MV Act in favour of respondents 1 to 5 and the Oriental Insurance Company, the insurer of the aforesaid lorry, had paid the interim award to respondents 1 to 5 and thereafter, they have withdrawn the said case and filed O.P.(MV) before the Motor Accident Claims Tribunal.
3. According to the Insurance Company, respondents 1 to 5 are estopped from approaching the Motor Accidents Claims Tribunal as they have already filed an application seeking compensation before the Motor Accident Claims Tribunal and obtained an interim award.
4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Commissioner for Workmen's Compensation passed an impugned order granting Rs. 96,200/- as compensation to them after rejecting the plea of estoppel raised before the Tribunal. The legality and correctness of the findings whereby the Tribunal rejected the plea of estoppel are assailed in this appeal.
5. Heard the learned counsel for the appellant and the learned counsel for the respondents.
6. Going by the impugned award, it could be seen that during cross examination, AW1, the wife of the deceased driver, herself admitted that respondents 1 to 5 have already filed MV(OP) before the Motor Accidents Claims Tribunal and they have received an interim award of Rs. 50,000/- under Section 140 of the MV Act and thereafter, they have withdrawn the said OP (MV). Thus, there is no suppression of proceedings initiated before the Motor Accidents Claims Tribunal under Section 166 of the MV Act. Further, the impugned order shows that the Commissioner for Workmen's Compensation has deducted the said amount of Rs. 50,000/- from the award passed by the Commissioner. The question in controversy centres around Section 167 of the MV Act. We find that according to Section 167 of the MV Act, there are options to claim compensation either under the Workmen's Compensation Act, 1923 or under Chapter 10 of the MV Act. It follows that the claimants cannot proceed under both the Workmen's Compensation Act, 1923 and the MV Act for compensation.
7. In the instant case, it is true that earlier they have proceeded under the MV Act by filing an OP(MV) under Section 166 of the MV Act and obtained an interim award of Rs. 50,000/- under Section 140 of the MV Act. But subsequently, they have withdrawn the said OP(MV) and in the impunged order, the Commissioner for Workmen's Compensation has deducted the said amount of Rs. 50,000/-, which was received by respondents 1 to 5 under Section 140 of the MV Act. Thus, at the time of passing the impugned award, there was no proceedings under the Motor Vehicles Act seeking compensation.
8. We are of the opinion that merely for the reason that earlier the claimants have proceeded under the MV Act and later, withdrew the said proceedings and filed WCC for compensation under the Workmen's Compensation Act, it cannot be held that the subsequent claim is barred by Section 167 of the MV Act. Moreover, the interim award which was received under Section 140 of the MV Act is also seen adjusted towards the compensation granted by the impugned order.
9. In the above view, we find that the application filed before the Commissioner for Workmen's Compensation under Section 22 of the Workmen's Compensation Act is not hit by the bar of Section 167. In the above view, there is no illegality or impropriety in the impugned award granting compensation under the Workmen's Compensation Act after deducting the interim award of Rs. 50,000/- received under Section 140 of the Motor Vehicles Act. This Appeal is devoid of merits.
10. Accordingly, this MFA is dismissed.
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