IN THE HIGH COURT OF JUDICATURE AT BILASPUR MISC.APPEAL / 2008 Appeltant ciA^MWT; 1, 2. ^ 5. .V Smt.Gomti Bai, W/o Late Shri Shatrughan, Aged about 45 years. Kumari Ranu Thakur, D/o Late Shri Shatrughan, Aged about 21 years. Kumari Ntlu Thakur, D/o Late Shri Shatrughan, Aged about 18 years. Kumari Shanti Thakur alias 'Mintu', D/o Late Shri Shatrughan, Aged about 15years. Shri Kamlesh Kumar, S/o Late Shri Shatmghan, Aged about 15 years. (Appellant No. 4 to ^ are minors and they are through their natural guardian Smt-Gomti Bai.) (All R/o Uttam Kirana Store, Near Gader Poot, Dalli Rajhara, PS Rajhara Tahsil Balod, Distt. Durg (C.G.)) Respondents Versus ,1.^~'Dushyant Kumar S/o Late Shri 1 Shatrughan, Case Rajput, Aged about 25 years, R/o Jaiskarra, PS & Tahsil Charama, Distt. Kanker (C.G.) Khorbahra Ram, S/o Nandlal, Caste Halba, R/o Camp - 1, Dallirajhara, Tahsil Batod, Distt. Durg (C.G.) ({ Bhilai Steel Plant - Through its Managing Director, Daltirajhara, Tahsil and PS Dallirajhara, Dist. Durg (C.G.) ^^The New India Iftsurance Company Ltd., Power House, Bhilai, Tahsil & Distt. Durg (C.G.) MISCELLANEOUS APPEAL U/5 1730F TME MOTOR VEHICLE ACT 1988 HIGHCOURTOFCHHATTISGARHATBILASPUR DB: Hon'ble Shri Justice I.M Quddusi. & Hon'ble Shri Justice Prashant Kumar Mishra. JJ. M.A. (C) No 436 of 2006 Smt. Gomti Bai and others. Versus Dushyant Kumar and others. JUDGMENT FOR CONSIDERATION Sd/- JUDGE (<?-04-2011 Hon'ble Shri I.IVS. Quddusi. J. ->") yc- ^^ Sd/- I.M. Quddusi Judge Postfor^o- 04-2011 Sd//- Prashant Kumar Mishra Judge ^- \\ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri I.M. Quddusi, J. & HonLbjeS^hrjPrashantKumarMls MAfClNo. 436 of 2006 APPELLANTS Smt. Gomti Bai and others. Versus RESPONDENTS Dushyant Kumar and others. Shri P.R. Patankar, counsel for the appellants. Shri Brijesh Singh, Advocate appoars on behalf ofShri A.S. Gaharwar, counsel for respondent No.3. Shri Dashrath Gupta, counsel for respondent No.3. JUDGMENT (^ /o ^2011) Per Prashant Kumar Mishra. J. This appeal under Section 173 of the Motor Vehicles Act has been preferred by the claimants whose application for compensation by way of a cross claim has been rejected by the Additional Motor Acddent Claims Tribunal. Balod. District- Durg. (2) Facts of the case, in short, are that at about 12.30 p.m. on 09/12/2004 the deceased was working in the mines at Rajhara. At that time a Tipper driven by respondent No.2 in rash and negligent manner dashed the deceased Shatrughan Rajput as a result of which he sustajned grievous jnjuries and was taken to Bhitai Steel Plant Hospital. where he was declared dead. The deceased was a regular employee eaming Rs.8025/- as salary from Bhilai Steet Plant. (3) Admjttedly. the respondent No. 3 Bhilai Steel Plant, deposited the entire amount of compensation before the Commissjoner, Workmen Compensation Act payabte to the legal representatives of deceased ^.Shatrughan Rajpqt. The respondent No. 3 deposited an amount of ^ -2.- ^—^ Rs.2,71.120/-. After issuing notice the Commissjoner awarded compensation of Rs.2,70.620/- which the present appellants received. In the said proceeding respondent No.1' Dushyant Kumar was an objector claiming to be son of deceased, however. his claim was rejected on the ground that even accepting his plea of being a son of the deceased, he being more than 18 years of age. to be exact being 24 years of age, on the date of accident, would not be covered within the defjnltion of the term 'dependent' and as such he cannot be a claimant under the Workmen Compensation Act. (4) The respondent No. 1 Dushyant Kumar subsequently preferred claim petition under Section 166 of the Motor Vehicles Act. In the said claim petition the present appellants moved a cross claim. The claim and the cross claim has been rejected by the learned Claims Tribunal by the impugned order on the ground that the claimant incjuding the cross- claimant having preferred claim under the provision of Workmen's Compensation Act 1923, are not entitled to move under Motor Vehicle Act in view ofthe express bar contained under Section 166 ofthe Act. 1988. (5) Learned counsel for the appellant, placing reliance on judgment of Bombay High Court in the matter of Santabai Parshuram Mule and others vs. Sharda Prasadsingh and others reported in 1992 ACJ 270, contended that even after receiving the claim under the Act. 1923 the claimants are entitled to move under Section 166 of the Act, 1988 because before the Commjssioner the employer. of its own, had deposited the amount and no application under Section 10 of the Act, 1923 was moved by the claimants/appellants. On the other hand learned counsel for resporident has supported the impugnecl order by placing /^ -. _ . . . ^ ^ reliance on provision contained under Section 167 ofthe Act, 1988. "^: - 2>- (6) The short question arising for determination in this appeal is whether having received the amount of compensation as assessed by the Commissioner, Workmen's Compensation under the Act 1923, though no application was moved by the claimant under Section 10 of the Act 1923, the bar under Section 167 ofthe Act, 1988 would still be applicable. (7) Since Section 167 of the Act 1988 reads as under:- , "167. Option regarding daims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of, or bodily injury to, any person gives -rise to a claim for compensation under thjs Act and also under the Workmen's Compensation Act, 1923, the person entitied to compensation may without prejudice to the provjsjons of Chapter X claim such compensation under either of those Actsbutnot underboth". (8) Dealing with the prindple "doctrine of ejection" as contained in Section 167 of the Act 1988, the Hon'ble Supreme Court, in the matter of National Insurance Company Limited vs. Mastan and another reported in 2006 (2) SCC 641 has held thus in paragraphs 21, 22.23, 24, 26 and 27. "21. Under the 1988 Act. the driver of the vehicle is liable but he would not be liable jn a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accidents Claims Tribunal, having regard to its rights and {iabilities vis-^-vjs the thjrd person may direct the Insurance Company to meet the liabjjities of the insurer. permitting.it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of reference by jncorporation has Jimited application. A limited rightto defend -~~~"1 \ 9 claim petition arising under one statute cannot be held to be applicable in a claim petition arisjng under a different ,f "vt- v ^ Sb.^^£«^,. 1^,. . Jj "'L^ -^' statute unless there exists express provision therefor. Sectjon 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liabifity, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori jn a daim arising under Chapter XI, the provisjons ofthe 1923 Act wilt have no application. A partv to a lis. havjna reaard to the difFerent provisions of the two Acts. cannot enforce liabilities of the insurer under both the Acts. He has to elect for one. 22. Section 167 of the 1988 Act statutorily provides for an option to the clajmant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act §salso the 1923 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. Section 167 contains a non obstante ciause providing for such an option notwithstanding anything contained jn the 1923 Act. 23. The "doctrine of election" is a branch of "rule of estoppel", in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he othen^ise would have had. The cloctrine of election postulates that when two remedies are available for the same reljef. the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case. 24. In Nagubsi Ammal v. a Shama Rao /</R ^95^ SC 593 itwas stated: (SCR p. 470) "It is dear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one appjication of the doctrine of election. and that jts operation must be confined to reliefs ctaimed in respect of the same transaction and to the persons who are parties thereto." •^ i'] ".. ...^T^ ^ y -3 ^^ 26. Thomas, J. jn P.R. Deshpande v. Maruti Balaram HaibaW (1998) 6 SCC 507 stated the law thus: (SCC p. 511. para 8) "8. The doctrine of election is based on the rule of estoppel — the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppe! in pais (or equitable estoppef) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwjse would have had." (See also Devasahayam v. P SaviffjrammQ (2005) 7 SCC 653.) 27. The first respondent having chosen the forum under the 1923 Act for the purpose of obtainjna compensation aaainst his emplover cannot now fall back upon the provisions of the 1988 Act therefor, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof." (emphasis supplied) (9) !n view of the law laid-down by the Hon'ble Supreme Court in the above referred judgment of National Insurance Company Limited Vs. Mastan and another (supra). and applying the said ratio in the facts of the present case wherein the appellant has already received the claim offered by the Commissjoner for Workmen's Compensation, this Court is of the opinion that the appellants having enforced liabjlities of the employer and insurer and having received the benefiVrelief under the Act 1923 is precluded/estopped by doctrine to election as envisaged under Section 167 of the Act 1988 to maintain a claim under Section 166 of the Motor Vehjcles Act, 1988. (10) Reliance placed by the learned counsel for the appellant on the 'judgment of Bombay High Court has no substance in view of the ^. <.>-^, '\''..r^ ~(o- subsequent decision ofthe Hon'ble Supreme Court holding thatwhen the claimants have enforced the liability and obtain relief under one of the Act, subsequent application under the other Act is not maintainable. (11) Learned Claims Tribunal has not committed any iltegality in dismjssing the claim/cross daim preferred by the claimants/appellants. Consequently the instant appeal fails and is hereby dismissed. Sd/- I-M. Quddusi Judge Sd//- Prashant Kumar Mishra Judge ^-