FAO No.672 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH FAO No. 672 of 2009(O&M) Date of Decision: July 2, 2014. [ENTITY] and others APPELLANT (s) Versus [ENTITY] and another RESPONDENT (s) CORAM:- HON'BLE MRS.JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for Mr. [ENTITY], Advocate for the appellants. Mr. [ENTITY], Advocate for respondent No.1. Mr. [ENTITY], Advocate for respondent No.2. 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reports or not? 3. Whether the judgment should be reported in the digest? [ENTITY], J.
The appellants being aggrieved of the dismissal of their petition under [SECTION] of the [ACT] (hereinafter referred to as the 'Act') vide award dated 19.08.2008 passed by the Motor Accidents Claim Tribunal, Karnal (hereinafter referred to as the 'Tribunal') have filed the present appeal challenging the said award.
The appellants alongwith respondent No.1 - [ENTITY] had earlier filed separate petitions under [SECTION] of the Act claiming compensation on account of the death of [ENTITY] (the present appellants claim to be the LRs of [ENTITY]) and injuries caused to [ENTITY] on account of an accident which was alleged to have been caused on 17.12.2002 by the rash and negligent driving of a bus bearing registration No.HR-45-6171. The said bus was averred to have overtaken the motorcycle and applied the brakes abruptly due to which there was a collision of the bus with the motorcycle. [ENTITY] and [ENTITY] both are stated to have fallen down and received serious injuries and lateron, [ENTITY] succumbed to the injuries. The present appellants in the earlier petition under [SECTION] of the Act had claimed a compensation of `15,00,000/- on account of the death of [ENTITY] in the said accident. The deceased [ENTITY] was alleged to be 35 years old and earning `5,000/- per month.
The second claim petition had been filed by [ENTITY] for a compensation of `5,00,000/- on account of the injuries sustained by him in the said accident. Both the said claim petitions were dismissed vide award dated 10.12.2005 passed by the Tribunal on the ground that the petitioners therein had failed to prove that the death of [ENTITY] and the injuries to [ENTITY] had been caused in an accident, which had allegedly occurred due to the rash and negligent driving of Bus No.HR45-6171 by one [ENTITY], respondent therein. It was specifically held that in the FIR and in the earliest version, it had been alleged by them that the accident was caused by a car driven by some unnamed driver and the version had been changed subsequently. The said award dated 10.09.2009 which is on record has not been challenged either by the appellants or by [ENTITY] and has admittedly attained finality.
The present appellants i.e., LRs of deceased [ENTITY], after the dismissal of their claim petition under [SECTION] of the Act, filed the present claim petition under [SECTION] of the Act on 23.12.2005 claiming compensation from respondent No.1 - [ENTITY] i.e., the owner and driver of the motorcycle and respondent No.2, the insurer of the offending motorcycle. In the present petition it is stated that on 17.12.2002 [ENTITY] and deceased - [ENTITY] were going on a motorcycle. The deceased was the pillion rider and when they reached near bus stop of village Budhanpur on Karnal-Kaithal road, 'a vehicle' hit the motorcycle. Both the occupants fell down and sustained grievous injuries and [ENTITY] succumbed to the injuries on 18.12.2002. The accident is alleged to have taken place on account of use of the motorcycle bearing registration No.HR-05L-3501 and compensation of `10,00,000/- has been claimed under the provisions of [SECTION] of the Act and the income of the deceased [ENTITY] is claimed to be `40,000/- per annum. The Tribunal dismissed the petition holding that the present claim petition is barred by the principle of res judicata and is not maintainable.
Learned counsel for the appellants has vehemently argued that this petition cannot be barred by the principle of res judicata because [SECTION] A of the Act is a beneficial piece of legislation and on account of non-obstante clause contained therein, filing of the earlier claim petition under [SECTION] of the Act does not bar the subsequent filing of the petition under [SECTION] of the Act where the compensation is claimed on a structured basis and the claimant is not required to plead or establish that the death has occurred due to any wrongful act or negligence or default on the part of the owner/driver of the vehicle. Specific reliance is placed on a judgment by the Delhi High Court in case of [PRECEDENT], to say that dismissal of the petition under [SECTION] of the Act cannot bar the filing of a petition under [SECTION] of the Act.
Learned counsel for respondents have refuted the said plea and submits that there is no ground, whatsoever, to assail the impugned award and prayed for upholding the same.
Having heard learned counsel for the parties and going through the available record, it is apparent that the appellants on earlier occasion had filed the petition under [SECTION] of the Act. Having failed to prove any negligence on the part of driver/owner of the offending bus in that case, the appellants have filed this petition under [SECTION] of the Act to claim compensation qua respondent No.1 - [ENTITY] and respondent No.2. It is apparent from the perusal of award dated 10.09.2005 in a petition filed under [SECTION] of the Act that it had been claimed that the income of deceased [ENTITY] was `9,000/- per month (i.e., `1,08,000/- per annum) and now in order to bring their claim within the ambit of [SECTION] of the Act, the income of the deceased - [ENTITY] is claimed to be `40,000/- per annum. There is no mention of the accident having been caused by the bus in the present petition. The conduct of the appellants is clearly not above board.
The Hon'ble Supreme Court in [PRECEDENT], has held that the remedy for payment of compensation both under [SECTION] and [SECTION] of the Act are final and independent of each other and the claimant must opt to go either for proceedings under [SECTION] or for under [SECTION] of the Act but not under the both. It is specifically been held as under:-
"57. We, therefore, are of the opinion that remedy for payment of compensation both under [SECTION] and [SECTION] being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under [SECTION] [SECTION] of the Act, but not under both.
58. In [PRECEDENT] the contention of the claimant that right to get compensation is in addition to the no-fault liability was, thus, rightly rejected. In agreement with [PRECEDENT] (supra) we are also of the opinion that unlike [SECTION] and [SECTION] of the Act the Parliament did not want to provide additional compensation in terms of [SECTION] of the Act.
59. The question may be considered from different angles. As for example, if in the proceedings under [SECTION] of the Act, after obtaining compensation under [SECTION], the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part the amount of compensation already paid on the basis of structured formula?
Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under [SECTION] of the Act, would it be at liberty to award compensation in terms of [SECTION] thereof.
60. The answer to both the aforementioned questions must be rendered in the negative."
The Hon'ble Supreme Court in [PRECEDENT]'s case (supra) has also discussed the overriding effect of [SECTION] of the Act specifically in view of the non obstante clause. The overriding effect is in relation to [SECTION] of the Act and cannot be taken to mean that the claimant having once opted to seek the remedy under [SECTION] of the Act and having failed therein, can thereafter file a petition under [SECTION] of the Act and that too, by varying the material facts only with a view to come within the ambit of [SECTION] of the Act. This would lead to complete misuse and abuse of the beneficial provision of [SECTION] of the Act.
Therefore, keeping in view the decision of the Hon'ble Supreme Court in [PRECEDENT]'s case (supra), the decision of the Delhi High Court in [PRECEDENT]'s case (supra) wherein the amendment of the petition under [SECTION] of the Act had been permitted, converting it into a petition under [SECTION] of the Act, can be of no avail to the appellants.
No other point has been urged.
Keeping in view the aforesaid, the impugned award dated 19.08.2008 passed by the Tribunal does not call for any interference by this Court.
Accordingly, this appeal is dismissed being devoid of merit with no order as to costs.
( [ENTITY] ) July 2, 2014. JUDGE 'om'