IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors. (S. B. Civil Misc. Appeal No. 1489/2003) S.B. Civil Misc. Appeal Under Section 30 (aa) of the Workmen's Compensation Act,1923 against the award dated 5-5-2003 passed by Commissioner, workmen's Compensation Act,1923 Jaipur City in case No.WCCF No.16/1999. Date of Judgment: November 26, 2008 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Vinod Tyagi, for the appellant. Mr. Sandeep Mathur, for the respondents. BY THE COURT: With the consent of learned counsel for both the parties, the case is being decided finally at the admission stage itself. 2. The New India Assurance Company has challenged the award dated 5-5-2003 passed by the Commissioner, Workmen's Compensation Act, Jaipur City ('The learned Commissioner' for short) whereby the learned Commissioner allowed the claim petition filed by respondents No.1 to 3 and directed the appellant to pay Rs.1,68,470/- along with 9% per annum interest to the respondents. 3. This case has a rather checkered history, which is as under:- On 27-3-1998 while Suresh Chand was travelling in bus No.RJ14-P/1668, he met with an accident and expired. The said accident took place within the jurisdiction of Police Station Arniya, Bulandsahar (UP). But subsequently, the respondents No.1 to 3 filed a claim petition before Motor Accident Claims Tribunal, Jaipur City, Jaipur (`the Tribunal' for short). The said claim petition was filed under section 140 and 166 of the Motor Vehicles Act,1988 (`the Act' for short). Vide award dated 11-11-1998, the learned Tribunal awarded Rs.50,000/- under section 140 of the Act. But it dismissed the claim of respondents No.1 to 3 under section 166 of the Act. Learned Tribunal held that the claimants failed to prove negligence of the Bus Driver. Having failed to prove their case before the learned Tribunal, the claimants subsequently moved a claim petition before the learned Commissioner. Having heard the learned counsel for both the parties and after perusing the documentary evidence, the learned Commissioner passed the award in favour of claimants to the tune of Rs.2,78,470/-. However, after adjusting the amount Rs.50,000/-, which was awarded by the learned Tribunal under section 140 of the Act, the learned Commissioner directed the appellant to pay a compensation of Rs.1,68,470/- to the claimants. Hence, this appeal before this Court. 4. Mr. Vinod Tyagi, the learned counsel for the Insurance Company, has contended that section 167 of the Act bestows a discretion on the claimants either to approach the Tribunal, or the commissioner. However, once the claimants have chosen and have filed their claim petition before the learned Tribunal, they are pre- empted from approaching the Commissioner. Therefore, in the present case once the respondents No.1 to 3 had filed their claim petition before the Tribunal and having lost their case before the Tribunal, subsequently, they cannot be permitted to approach the Commissioner. According to learned counsel for the Insurance Company, this issue was raised before the learned Commissioner, but despite having raised this issue, learned Commissioner has still exercised his jurisdiction and passed the impugned award. Secondly, in the light of Section 167 of the Act, learned Commissioner does not have jurisdiction to entertain a petition, where the claim petition was already decided by the Tribunal. Hence, the commissioner has overstepped his jurisdiction. Thus, the impugned award is ultra vires the jurisdiction; it is void and ab initio. 5. On the other hand, Mr. Sandeep Mathur, the learned counsel for respondents No.1 to 3, has contended that the words “claim as the compensation in either of those courts but not in both” does not deal with the institution of the case, but deals merely with the damages prayed by the claimants. Therefore, according to learned counsel for the claimants, Section 167 of the Act does not prevent the claimants from approaching both the forums simultaneously, or in the consecutive. Learned counsel has also contended that due to incorrect legal advise, the claimants, having lost their case before the learned Tribunal, had approached the learned Commissioner. According to learned counsel for the claimants, the claimants should not suffer because of incorrect advise given by the counsel. 6. Heard the learned counsel for both the parties and perused the material available on record. 7. Section 167 of the Act reads as under:- “Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act,1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act,1923, the person entitled to compensation, may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. A bare perusal of the said provision clearly reveals that the meaning of the words “gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, the person entitled to compensation, may, without prejudice to the provisions of Chapter X, claim such compensation under either of those Acts, but not under both”. The words used are “but not under both”. These words clearly reveal that the claimant may seek compensation from either of the two fora, but not both of them. Therefore, according to said section in case the claimant has approached the Tribunal, then he is prevented from approaching the Commissioner. Thus, the contention raised by learned counsel for the respondents that a bar is not contained in Section 167 of the Act in unacceptable. 8. Moreover, seeing from another angle, there is a logic in this provision: for, litigants cannot be permitted to do forum shopping. Once they have lost their case before a particular forum, they cannot be permitted to go before another forum and seek the same claim or same damages. In case, the interpretation placed by learned counsel for respondents were to be accepted, such an interpretation would encourage multiplicity of litigations. Such an interpretation would lead to unreasonable consequences. Thus, the interpretation cannot be accepted. 8. In the present case, once respondents No.1 to 3 had approached the Tribunal, once their claim was adjudicated by the Tribunal, they were prevented from approaching the Commissioner. Although this issue was raised before the Commissioner, learned Commissioner repelled this contention on the basis of the ratio indicated by Kerala High Court in New India Assurance Co. Vs. Pennamma Kurien (1995 ACJ 760). However, facts of that case are different from the facts of the present case. In that case, their Lordships of the Kerala High Court had held that the claimants did not file the claim before the Tribunal under Motor Vehicles Act. Therefore, they were not debarred from approaching under the Workmen's Compensation Act. However, in the present case the claimants had already filed claim application before the Tribunal under Motor Vehicles Act. The claimants had approached the Tribunal, they had filed a legal claim application and the learned Tribunal adjudicated upon the claim petition and dismissed the claim of claimants under section 166 Act. Thus the principle laid down in the case of Pennamma Kurien (supra) is inapplicable to the present case. 9. Under these circumstances, the appeal is allowed and the impugned award dated 5-5-2003 is quashed and set aside. However, the respondents No.1 to 3 are at liberty to pursue any legal remedy available to them under law. In case, the respondents pursue any legal remedy and question of limitation arose, the benefit of Section 14 of the Limitation Act shall be given by them. ( R.S. CHAUHAN ) J. arn