Case: Inspector General of Police Vs. Sayed Adam

V.P. TIPNIS, J. ( 1 ) ONE Sayed Adam filed an application before the Commissioner for Workmens Compensation, Goa, claiming compensation from the Inspector-General of Police, his employer, on the ground of disability sustained by him due to the accident arising out of and in the course of his employment. He contended that on June 4, 1979, while he was employed as a driver in Goa Police he met with an accident while he was proceeding to Valpoi from Pale on official duty. He suffered injuries on his right cheek with a fracture and permanent loss of the right eye. He also suffered injuries to the left rib, left thumb and left hand. He also made requests for compensation to the Office of the Inspector-General of Police on February 11, 1980, but there was no response. ( 2 ) THE application was resisted on behalf of the Inspector-General of Police. It was denied that the accident took place in the course and was arising out of the employment. The evidence recorded showed that while the applicant was on duty driving the jeep No. GDL-9346 accompanied by police escort, the jeep collided with a truck coming from the opposite direction resulting in the accident in which the applicant received several injuries. On the basis of the evidence on record the Commissioner for Workmens Compensation determined an amount of Rs. 12,096 as the compensation payable to the applicant. This decision was rendered on September 8, 1988. ( 3 ) BEING aggrieved by the aforesaid judgment and order of the Commissioner for Workmens Compensation, the Inspector-General of Police, Goa, preferred First Appeal No. 1 of 1989. The learned single judge by his judgment and decree dated April 20, 1990, was pleased to dismiss the said appeal with costs. Being aggrieved by the aforesaid judgment and decree of the learned single judge dismissing the first appeal, the Inspector-General of Police, Goa, has preferred the present Letters Patent Appeal.( 4 ) BEFORE the learned single judge, it appears that the point was raised as to the maintainability of the application before the Commissioner for Workmens Compensation on the basis of interpretation of Section 110-AA of the Motor Vehicles Act, 1939, on the ground that the applicant had sought his remedy by making a claim before the Accidents Claims Tribunal at Panaji and had obtained an amount of Rs. 50,000 as compensation from the Insurance Company which had insured the owner of the truck and the truck with which the jeep driven by the applicant, collided at the relevant time. ( 5 ) THAT the applicant had filed a claim before the Accidents Claims Tribunal against the owner of the truck and the insurance company and that he got compensation of Rs. 50,000 from the insurance company in full and final satisfaction of his claim against the owner of the truck is an admitted position. ( 6 ) SHRI Bharne, the learned Additional Government Advocate appearing for the appellant, submitted that the claimant having received the sum of Rs. 50,000 from the third party, namely, the truck owner, he cannot claim compensation from the employer under the provisions of the Workmens Compensation Act by virtue of the provisions of Section 110-AA of the Motor Vehicles Act, 1939. After quoting the Section, the learned judge was not impressed by the said argument as, in the view of the learned judge, what the said Section contemplates is the case where the claim could have been filed under the provisions of both the Acts. The learned Judge observed that if the claim to be made against the employer under the Workmens Compensation Act could also be made before the Accidents Claims Tribunal, the applicant could certainly be put to election. However, the learned judge found that the applicant in the instant case could not have made any claim against his employer before the Accidents Claims Tribunal. The learned Judge felt that before the Motor Accident Claims Tribunal the damages could be claimed not for the reasons that the injury was received during the course of employment or was arising out of the employment but only if it was the claimants case, that the employer or the driver of the vehicle belonging to the employer was negligent and the injuries were the result of the negligence. Before the Motor Accidents Claims Tribunal compensation could not have been claimed against the employer on the ground that the injuries were sustained during the course of employment or arising out of the employment. The causes of action were distinct in both the proceedings. The learned judge felt that the kind of eventualities contemplated under Section 110-AA is entirely different from the one contemplated under the Workmens Compensation Act. The learned judge, therefore, felt that Section 110-AA could not have any application to the facts of the instant case. ( 7 ) SHRI Bharne, the learned Additional Government Advocate, contended that on a plain reading of Section 110-AA once the claimant approaches the Accidents Claims Tribunal, he cannot claim compensation from the employer under the provisions of the Workmens Compensation Act.( 8 ) IN support of his contention Shri Bharne relied upon the decision of the Division Bench of this Court in the case of National Insurance Co. Ltd. v. Gonti Eliza David, 1984 ACJ 8. ( 9 ) IN the aforesaid case, the truck belonging to the Karnataka Rural Water Development Company Private Limited of Bangalore was proceeding from Jalgaon towards Chalisgaon on April 3, 1979, along the State Highway, carrying some amount of drilling equipment and accessories as well as companies servants. One John Buryan David who was employed by the company for its drilling operations was one of the passengers of the truck which was being driven by one Sadanand Karbali Ramble, another employee of the company. As a result of the accident, the truck turned turtle and John Buryan died on the spot. The parents of the deceased, John Buryan, applied to the Motor Accidents Claims Tribunal of Jalgaon District for compensation impleading the company and the National Insurance Company Ltd., the insurer with whom the truck was insured. The Tribunal awarded damages to the tune of Rs. 27,500. The insurer challenged the award before the High Court. In the said case, the argument on behalf of the insurer was that under the terms of the policy read with the first proviso to Sub-section (1) of Section 95 of the Motor Vehicles Act, the liability of the insurer will be limited to that arising under the Workmens Compensation Act. This was the only issue before the Court and the Division Bench held that undoubtedly, an aggrieved employee is entitled under Section 110-AA of the Motor Vehicles Act to exercise his option regarding the forums which he can approach to prefer his claims for compensation. The factors to be taken into consideration in deciding his claim under the two Acts would be different. A Tribunal would apply the principles of strict liability circumscribed by the Workmens Compensation Act while the Motor Vehicles Tribunal would go on the principles of tort in determining the issue and if the workman had chosen to undertake the onerous burden imposed upon him by the tort law, it follows that he should get the benefit of the expression "including the liability, if any, arising under the Workmens Compensation Act" occurring in Clause (a) of Sub-section (2) of Section 95 of the Motor Vehicles Act which implies that the insurer is liable for common law damages also and not only liabilities arising under the Workmens Compensation Act. In our opinion, the authority deals with totally different issue and is of no help to the submission of Shri Bharne.( 10 ) SHRI Bharne also relied upon the decision in Kanoria Overseas Corporation v. Damayanti Vyas, AIR 1983 Patna 95. In the said case also, the workman died in the accident in the course of his employment while he was traveling on a scooter belonging to the employers. An application was filed by the heirs of the workman before the Motor Accidents Claims Tribunal and while the said application was pending the heirs also filed an application before the Deputy Commissioner under the Workmens Compensation Act and the employers took the position that inasmuch as the heirs of the deceased workman had ready filed an application before the Accidents Claims Tribunal under the provisions of the Motor Vehicles Act, an application under the provisions of the Workmens Compensation Act is not maintainable. The said contention was rejected by the trial Court. However, the High Court In appeal upheld the contention in view of the provisions of Section 110-AA of the Motor Vehicles Act. Thus, it is clear that in the aforesaid decision, the application for compensation was filed before the Motor Accidents Claims Tribunal against the employer itself and in such a case obviously in view of the provisions of Section 110-AA of the Motor Vehicles Act, a second application under the provisions of the Workmens Compensation Act would be clearly impermissible. However, in the facts before us, the application before the Motor Accidents Claims Tribunal was filed only against the owner of the truck and the insurer of the truck on the ground that the owner of the truck was solely responsible and was negligent as a result of which the accident took place and the applicant suffered injuries. By no stretch of imagination the respondent could have claimed any compensation from his employer, namely, the Inspector-General of Police, in those proceedings as there was no question or allegation of negligence against the employee who was driving the jeep, who was the respondent himself. Therefore, the claim for damages against the employer could not have been made in those proceedings. This case, in our opinion, therefore, does not help the submission of Shri Bharne. ( 11 ) SHRI Bharne, thereafter, relied upon the decisions of two Division Benches of the Allahabad High Court in the case of Sarla Devi v. Jhang Ram, 1989 I ACJ 94. This decision undoubtedly supports the submission of Shri Bharne. However, this decision completely relies upon the decision of another Division Bench of the Allahabad High Court in Kalawati v. Balwant Singh, 1986 ACJ 550. Therefore we would make reference to the aforesaid judgment reported in Kalawati v. Balwant Singh, (supra). ( 12 ) THE learned Judges of the Division Bench of the Allahabad High Court in the matter of Kalawati v. Balwant Singh, (supra) lay down that by enactment of Section 110-AA, the tortfeasor has been exempted from paying any compensation, once it is found that the claimant has made an application for compensation under the Workmens Compensation Act and has been awarded compensation. In the very judgment, the learned judges have made a specific reference to a disturbing aspect of this interpretation. The learned judges observed that the claim that is made for compensation under the Motor Vehicles Act is based on the law of torts and is claimed against a tortfeasor. The tortfeasor is liable to pay compensation as awarded on the finding that there was a rash and negligent act on the part of the driver of the truck. Once this finding is given, the liability of the driver, the tortfeasor and the liability of the owner vicariously and that of the insurer arises. Once there is a finding of rash and negligent act on behalf of the driver the claimant is entitled to compensation under the Motor Vehicles Act. The learned judges further found that it appears that by enactment of Section 110-AA, the tortfeasor has been exempted from paying compensation once it is found that the claimant has made an application for compensation under the Workmens Compensation Act and has been awarded compensation. The learned judges rightly felt that would it not give rise to a situation where the tortfeasor would try to induce the claimant to go to the Commissioner under the Workmens Compensation Act, if need be by paying the claimant some amount to tide over, in order that the bigger liability to pay compensation be avoided. The poor and helpless claimant, in order to secure some amount quickly, may unknowingly approach the Commissioner under the Workmens Compensation Act. Similarly, a clever employer in order to avoid his liability may induce the claimant to approach the Tribunal under the Motor Vehicles Act. This may lead to malpractice and manipulation. The learned judges held that in their opinion the principle of double jeopardy, as held in some cases, will not be applicable in the present case or such cases. The respondents being different parties and against whom there are different causes of action the principle of double jeopardy will not be attracted. The learned judges posed the question but then should the tortfeasor avoid his liability and go free, avoiding payment of compensation They further observed that it is common knowledge that the amount of compensation payable under the Motor Vehicles Act is substantially more than that awarded under the Workmens Compensation Act. The learned judges wondered could it be the real intention of the law makers that the tortfeasor should not be made to pay compensation, say in a case where the bread-winner of the family dies in a motor accident leaving his entire family destitute However, the learned judges felt that the law needs to be suitably amended so that the tortfeasor does not evade payment of compensation in such a situation. However, the learned judges felt helpless and held that the law as it stands cannot be stretched to say that in case of two different causes of action and where there are two different respondents, the claimant could claim compensation under both the Acts. According to the learned judges the law is clear that under Section 110-AA of the Motor Vehicles Act the claimant is barred from seeking such compensation from more than one respondent. The law emphasizes that he can claim compensation only under one forum and not both and that the choice is his.( 13 ) WITH great respect we find ourselves unable to agree with the aforesaid decision rendered by the Division Bench of the Allahabad High Court. In our opinion from the reading of the Section, it is clear that it is only in the cases were the tortfeasor and the employer happens to be one and the same person that the workman or the claimant would have the choice and it is only in such a situation that the workman or the claimant has to exercise his option, namely, he can either proceed against his employer before the Accidents Claims Tribunal or he can proceed against the employer under the provisions of the Workmens Compensation Act. So far as a tortfeasor other than the employer is concerned it is clear that the workman can never proceed against such a tortfeasor under the provisions of the Workmens Compensation Act. We see absolutely no logic or reason to bar the remedy of the claimant or the workman against his employer or the tortfeasor when in the facts and circumstances of the case he could proceed against the tortfeasor only under the provisions of the Motor Vehicles Act and against the employer only under the provisions of the Workmens Compensation Act. ( 14 ) IN view of the aforesaid, we are in complete agreement with the views of the learned judge in the judgment and the order impugned before us.

Decision:
0[ds]( 13 ) WITH great respect we find ourselves unable to agree with the aforesaid decision rendered by the Division Bench of the Allahabad High Court. In our opinion from the reading of the Section, it is clear that it is only in the cases were the tortfeasor and the employer happens to be one and the same person that the workman or the claimant would have the choice and it is only in such a situation that the workman or the claimant has to exercise his option, namely, he can either proceed against his employer before the Accidents Claims Tribunal or he can proceed against the employer under the provisions of the Workmens Compensation Act. So far as a tortfeasor other than the employer is concerned it is clear that the workman can never proceed against such a tortfeasor under the provisions of the Workmens Compensation Act. We see absolutely no logic or reason to bar the remedy of the claimant or the workman against his employer or the tortfeasor when in the facts and circumstances of the case he could proceed against the tortfeasor only under the provisions of the Motor Vehicles Act and against the employer only under the provisions of the Workmens Compensation14 ) IN view of the aforesaid, we are in complete agreement with the views of the learned judge in the judgment and the order impugned before us.