JUDGMENT [ENTITY], J.
1. The primary question that needs to be settled in this letters patent appeal is as to whether the filing of a claim for compensation under [SECTION] of the [ACT], which is later dismissed as withdrawn, debars the subsequent filing of a claim for compensation under the [ACT] (for short, the Act), on the same cause of action? The following facts giving rise to it are not in dispute.
2. [ENTITY], an employee of the appellant Company, while driving its bus, PUM 7105, met with an accident on December 15, 1975 and as a result thereof, died two days later, I.E., on December 17, 1975. His widow and children filed a claim for compensation under [SECTION] of the [ACT] but the same was got dismissed as withdrawn on December 15, 1976. A copy of the order of the Tribunal, Exhibit R. 15, is on the records of this case. Later, the present claim petition was filed under the Act on March 21, 1977 and one of the contentions raised in reply to it relates to its maintainability on the ground that the respondent-claimants having elected to avail of the remedy under the [ACT], cannot now seek the relief under the Act on the same cause of action. This, however, is not disputed that the claim for compensation was competent under both the Acts, i.e., under [SECTION] of the [ACT] and under [SECTION] of the Act.
3. For non-suiting the claimants, the counsel for the appellant urges two points :
(i) By virtue of [SECTION] of the [ACT], the provisions of [SECTION], [SECTION] are applicable to the proceedings under the [ACT] and the claim of the respondents having been dismissed as withdrawn without any permission to file a fresh one on the same cause of action, they cannot maintain the present petition.
(ii) The claimants having elected to avail of the remedy under the [ACT] with regard to their claim for compensation, cannot cannot now claim relief under the Act in view of [SECTION] of the same.
Having heard the learned Counsel for the parties at some length we, however, find no merit in either of these two contentions.
4. So far as the First contention is concerned, we are of the opinion that even if the provisions of [SECTION], [SECTION] of the [ACT] are applicable to the proceedings under the [ACT], the same may well debar a claimant from instituting fresh proceedings on the same pause of action under the said Act, i.e., the [ACT] but this rule does not in any manner affect the proceedings under a different Act, i.e., the Act. As has been pointed out above, it is not in dispute before us that the claim for compensation was maintainable under both the Acts though of course the claimants could not have double payment as a result of the double proceedings. The phraseology of [SECTION] of the [ACT] makes this position amply clear. It reads as follows :
110-A.A. Option regarding claims for compensation in certain cases:
Notwithstanding anything contained in the [ACT], Where the death of or bodily injury to any person gives rise to a claim for compensation under this Acl and also under the [ACT] the person entitled to compensation may, without prejudice to the provisions of [SECTION] claim such compensation under either of those Acts but not under both.
5. So far as the second contention of the learned Counsel for the appellant is concerned, his whole reliance in that regard is on [SECTION] of the Act the relevant part of which reads as follows:
Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person.
In order to sustain his contention in the light of this provision, the learned Counsel also places reliance on [PRECEDENT] and [PRECEDENT]. Firstly we are quite doubtful as to whether a Tribunal under the [ACT] can be equated with a Civil Court for purposes of the above noted provision but even if it can be, we do not find it possible to hold that mere filing of a claim under [SECTION] of the said Act and later getting it dismissed as withdrawn can have the effect of debarring the claimant from the relief under the Act. The effect of getting a petition dismissed simpliciter or as withdrawn has been considered by a Division Bench of the High Court in [PRECEDENT] and it has been opined thus:
Whatever may be the stage at which the petition is withdrawn, the effect of the order dismissing the petition depends upon the order passed by the Court or the Tribunal and not the stage of its withdrawal. The Court or the Tribunal would be free to dismiss the petition on merits. If the order were simply "dismissed" then it would be a dismissal on merits. If the order does not give reasons, the order may not act as res judicata on the principle underlying the decision of the Supreme Court in [PRECEDENT] . But nevertheless it would be a final order which is appeal able on the principle of [PRECEDENT] . But if the Court chooses not to decide the merits and expressly passes the order "dismissed as withdrawn," the order is neither res judicata nor final. No appeal lies from it. On the contrary, a fresh petition would be maintainable in the absence of a provision like [SECTION], [ACT].
6. We fully agree with this enunciation of law and hold that mere dismissal of a claim petition as withdrawn cannot amount to dismissal of the petition on merits. To our mind all that [SECTION] of the Act as reproduced above ensures is that a workman cannot have double payment and the employer is protected from double proceedings. Further the use of the word 'has' (instituted in a Civil Court) as used in this clause of [SECTION] cannot be taken as a substitute for 'Had' (instituted in a Civil Court). The only implication of the language of this clause is that there cannot be parallel proceedings, i.e., under the Act as well as in a Civil Court or before the Tribunal. The learned Counsel, however, relies on the following observations in [PRECEDENT]'s case (supra):
The disqualification for proceeding in the Workmen's Compensation Commissioner's Court does not start when the claimant obtains compensation elsewhere, but starts the moment he moves another Court. Similarly, the disqualification to move any other Tribunal starts not when the Workmen's Compensation Commissioner awards compensation but the moment he is approached with a claim.
To our mind, these observations are not only obiter but appear to have been made on first impression. That was a case where the claimant had already been granted compensation by the Motor Accidents Claims Tribunal and then she again sought compensation under the Act. The claim obviously was untenable. The other judgment relied upon by the learned Counsel for the appellant too does not have any bearing on the facts of this case. In that case, claimants' petition under [SECTION] of the [ACT] bad been dismissed for default on December 21, 1974 and later an application for restoration of the said claim petition had too been dismissed. It was in view of these facts that the Tribunal held that no second claim application under [SECTION] of the Act was maintainable. The alternate argument that even though the claimants were not entitled to compensation under [SECTION] of the Act, still they should have been awarded compensation under the [ACT], too was repelled with the following observations:
The nature of proceedings under the Act of 1923 and the [ACT] is widely different. Different procedures and limitations have been prescribed in the matter of claim to be laid before the Tribunal under the two Acts. There is essential difference between the mode of payment of compensation under both the aforesaid Acts. Thus in my opinion the Accidents Claims Tribunal could not exercise jurisdiction under the 1923 Act in substitution of the prescribed authority under the [ACT].
Thus it is patent that the ratio of neither of the two judgments referred to above is even remotely relevant to the decision of the question before us.
7. For the reasons recorded above, we find no merit in this appeal and dismiss the same with no order as to costs.