Case: Oriental Ins.Co.Ltd Vs. Dyamavva

2. The most important factual aspect in the present controversy is, that Dayamavva Yalgurdappa the widow, and the dependants of Yalgurdappa B. Goudar, filed a claim petition under Section 166 ofthe Motor Vehicles Act, 1988 on 30.5.2003. Through the aforesaid claim petition, the widow and the children of the deceased Yalgurdappa B. Goudar sought compensation on account of the motor accident in the course whereof, the husband/father of the claimants had lost his life.  3. It is not a matter of dispute, that the Port Trust addressed a communication dated 4.11.2003 to the Workmens Compensation Commissioner, Goa intimating him of the motor accident referred to hereinabove. Simultaneously, with the aforesaid intimation, the Port Trust deposited an amount of Rs.3,26,140/- with the Workmens Compensation Commissioner, as compensation payable to the dependants of the deceased Yalgurdappa B. Goudar under the Workmens Compensation Act, 1923. Consequent upon the receipt of the aforesaid intimation (as also, the deposit of compensation), the Workmens Compensation Commissioner issued a notice to the dependants of the deceased Yalgurdappa B. Goudar. Consequent upon the service of notice on the dependants of the deceased, hearing in the matter pertaining to disbursement of compensation to the dependants of Yalgurdappa B. Goudar, was fixed for 20.4.2004. On 20.4.2004 Dyamavva Yalgurdappa, the widow of the deceased Yalgurdappa B. Goudar, appeared before the Workmens Compensation Commissioner and her statement was recorded by the Commissioner. In her statement she acknowledged the demise of her husband in a motor accident, while working in the employment of the Port Trust, in the second shift on 19.4.2003. She also placed on record the fact, that she had two sons and a daughter who were also dependents of the deceased. Based on her statement, she prayed for the release of the compensation deposited by the Port Trust, with the Workmens Compensation Commissioner. Since the claim raised by Dyamavva Yalgurdappa, widow of Yalgurdappa B. Goudar was not contested by the employer, the amount of Rs.3,26,140/- deposited by the Port Trust with the Workmens Compensation Commissioner, was ordered to be mainly released to the Dyamavva Yalgurdappa, widow of Yalgurdappa B. Goudar, and partly to the daughter of the deceased Yalgurdappa B. Goudar. Out of the aforesaid amount, the daughter was held to be entitled to a sum of Rs.50,000/-. The order dated 29.4.2004 is available on the record of this case. A elevant extract of the same is reproduced hereunder, which fully substantiates the factual position narrated hereinabove :The opp. Party Mormugao Port Trust vide their letter dated 04.11.2003 had informed that Shri Gowder Yellagurdappa, ex-Pump Operator who was posted at the Old Power House while working on the second shift on 19.04.2003 met with an accident with a tipper truck and succumbed to the injuries sustained. The management further mentioned the date of birth of the deceased employee was 01.04.1956 and his monthly salary was Rs.9,276/- at the time of his death and in terms of Workmens Compensation Act, 1923, they deposited an amount of Rs.3,26,140/- in this office towards compensation to be paid to the dependants of the deceased employee.  Notice was served on the parties and the hearing was fixed on 20.04.2004. During the course of hearing on 20.04.2004 the applicant stated that she is the wife of late Yellagurdappa Goudar. Her husband was working for Mormugao Port Trust in Mechanical Engineering Department as a Pump Operator. On 19.04.2003 her husband met with an accident. He was hit by a truck and succumbed to the injuries. He did on the spot. Besides her, she has got two sons viz., Shri Balappa Y. Goudar and Shri Basavraj Y. Goudar aged 21 years and 19 years respectively and one daughter Miss Yallava Y. Goudar, daughter aged 20 years who were dependants on the earning of her husband. She further stated that she is aware that the Opp. Party has deposited an amount of Rs.3,26,140/- with this Authority which according to her the amount has been properly worked out as per Workmens Compensation Act. She prayed that the said amount may be awarded to her and children as per the Workmens Compensation Act.  The representatives of the Opp. Party Mr. S.V. Verekar, Labour Officer, who was present during the course of hearing on 20.04.2004 did not desire to cross the Applicant.  After having verified the records produced in the course of hearing and the fact that the Opp.Party deposited the amount accepting the liability to pay the compensation, I hereby order to pay the compensation to the dependants of late Yellagurdappa Goudar in the following manner:  …Consequently, the aforesaid compensation under the Workmens Compensation Act, 1923 came to be released to the widow and daughter of Yalgurdappa B. Goudar4. Besides the compensation determined under the Workmens Compensation Act, 1923, the claim raised by Dyamavva Yalgurdappa under Section 166 ofthe Motor Vehicles Act, 1988 was independently determined by the Motor Accident Claims Tribunal, Bagalkot. Vide an award dated 15.7.2008, the said Motor Accident Claims Tribunal awarded the claimants compensation of Rs.11,44,440/-. Out of the aforesaid compensation, the Motor Accident Tribunal ordered a deduction of Rs.3,26,140/-, (i.e., the amount which had been disbursed to the claimants by the Workmens Compensation Commissioner, vide order dated 29.4.2004). In the aforesaid view of the matter, a sum of Rs.8,18,300/- was ordered to be released to the claimants.  5. The order passed by the Motor Accident Claims Tribunal, Bagalkot, dated 15.7.2008 was assailed by the Oriental Insurance Company Ltd, i.e., the appellant herein, before the High Court of Karnataka Circuit Bench at Dharwad (hereinafter referred to as the High Court). By its order dated 14.9.2011, the High Court affirmed the compensation awarded to the claimants by the Motor Accident Claims Tribunal, Bagalkot. Through the instant appeal, the Oriental Insurance Company Ltd. has assailed the orders dated 15.7.2008 and 14.9.2011 passed by the Motor Accidental Claims Tribunal, Bagalkot, and the High Court respectively, awarding compensation to the dependants of Yalgurdappa B. Goudar under Section 166 of

Reasoning: 9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any doubt, that when a workman during the course of his employment suffers injuries resulting in his death, the employer has to deposit the compensation payable, with the Workmens Compensation Commissioner. Payment made by the employer directly to the dependants is not recognized as a valid disbursement of compensation. The procedure envisaged in Section 8 of the Workmens Compensation Act, 1923, can be invoked only by the employer for depositing compensation with the Workmens Compensation Commissioner. Consequent upon such suo motu deposit of compensation (by the employer) with the Workmans Compensation Commissioner, the Commissioner may (or may not) summon the dependants of the concerned employee, to appear before him under sub-section (4) of Section 8 aforesaid. Having satisfied himself about the entitlement (or otherwise) of the dependants to such compensation, the Commissioner is then required to order the rightful apportionment thereof amongst the dependants, under sub-sections (5) to (9) of Section 8 of the Workmens Compensation Act, 1923. Surplus, if any, has to be returned to the employer10. As against the aforesaid, where an employer has not suo-motu initiated action for payment of compensation to an employee or his/her dependants, inspite of an employee having suffered injuries leading to the death, it is open to the dependants of such employee, to raise a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. Sub- section (1) of Section 10 prescribes the period of limitation for making such a claim as two years, from the date of occurrence (or death). The remaining sub-sections of Section 10 of the Workmens Compensation Act, 1923 delineate the other procedural requirements for raising such a claim11. Having perused the aforesaid provisions and determined their effect, it cleanly emerges, that the Port Trust had initiated proceedings for paying compensation to the dependants of the deceased Yalgurdappa B. Goudar suo motu under Section 8 of the Workmens Compensation Act, 1923. For the aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the Workmens Compensation Commissioner on 4.11.2003. Thereupon, the Workmens Compensation Commissioner, having issued noticed to the claimants (dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the date of hearing. On the aforesaid date, the statement of the widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa was recorded, and thereafter, the Workmens Compensation Commissioner by an order dated 29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the widow of the deceased and his daughter in definite proportionsThe procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer suo motu, and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmens Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmens Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmens Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmens compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants having never exercised their option to seek compensation under Section 10 of the Workmens Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 ofthe Motor Vehicles Act, 198813. Even though the aforesaid determination, concludes the issue in hand, ambiguity if at all, can also be resolved in the present case, on the basis of the admitted factual position. The first act at the behest of the respondents-claimants for seeking compensation on account of the death of Yalgurdappa B. Goudar, was by way of filing a claim petition under Section 166 ofthe Motor Vehicles Act, 1988on 30.5.2003. The aforesaid claim petition was the first claim for compensation raised at the hands of the respondents-claimants. If the question raised by the appellant has to be determined with reference to Section 167 ofthe Motor Vehicles Act,, the same is liable to be determined on the basis of the aforesaid claim application filed by the respondents-claimants on 30.5.2003. The compensation deposited by the Port Trust with the Workmens Compensation Commissioner for payment to the respondents-claimants was much later, on 4.11.2003. The aforesaid deposit, as already noticed above, was not at the behest of the respondents-claimants, but was based on a unilateral suo motu determination of the employer (the Port Trust) under Section 8 of the Workmens Compensation Act, 1923. The first participation of Dayamavva Yalgurdappa, in the proceedings initiated by the Port Trust under the Workmens Compensation Act, 1923, was on 20.4.2004. Having been summoned by the Workmens Commissioner, she got her statement recorded before the Commissioner on 20.4.2004. But well before that date, she (as well as the other claimants) had already filed a claim petition under Section 166 ofthe Motor Vehicles Act,, on 30.5.2003. Filing of the aforesaid claim application under Section 166 aforesaid, in our view constitutes her (as well as, that of the other dependants of the deceased) option, to seek compensation underthe Motor Vehicles Act,The instant conclusion would yet again answer the question raised by the appellant herein, under Section 167 ofthe Motor Vehicles Act,, in the same manner, as has already been determined above.