Date : 28-02-2019 I have heard Ms. M. Choudhury, learned counsel for the appellant Insurance Company. I have also heard Shri. P. J. Saikia along with Shri. A. K. Gupta, learned counsels for the claimant/respondent.

2. The principal ground of challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 is with regard to the application of Section 167 of the said Act. In this case, the appellant has put to challenge a judgment and award dated 12.12.2012 passed by the Motor Accident Claimant's Tribunal, Dibrugarh in M.A.C. Case No. 27/2011. The case projected in the appeal is that the claimant had earlier approached the Workmen's Compensation Commissioner, Sivsagar vide SWC Case No. 01/2012, in which vide judgment dated 17.02.2012 a sum of Rs. 4,50,000/- has been awarded. Thereafter, the claim was made before MACT, Dibrugarh in which an award of Rs. 19,20,976/- has been passed. As indicated above, the challenge is mainly on the ground that under Page No.# 3/8 Section 167 of the Motor Vehicles Act, 1988, there is an express bar in instituting two proceedings pertaining to the same accident one under the WC Act and one under the Motor Vehicles Act 1988.

3. The facts in brief are narrated here in below.

4. The claimant and her minor son are the legal heirs of one late Asini Kumar Mech. On 03.03.2011 the husband of the claimant had met with an accident leading to his death by involvement of a vehicle bearing registration No. AS-04-E-9515 which was duly insured with the New India Insurance Company Limited(appellant herein). The involvement of the Vehicle in question and the cover by the appellant are not matters of dispute. The said accident was reported to the Demow Police Station which had registered a case being Demow P.S. Case No. 37/2011 under Section 279 IPC. Necessary Post Mortem was done and as stated above the fact of death in the aforesaid motor accident is not a matter of dispute.

5. The claimant had filed an application for compensation in the WC Court against the employer of her husband - M/s Shiv-Vani Oil & Gas Exploration Service Ltd.. At his stage it will be apposite to state that the employer of the deceased M/s Shiv-Vani Oil & Gas Exploration Service Ltd. was not the owner of the vehicle in question and the further fact that the claimant before WC Commissioner was against the employer only. In the said claim neither the owner of the vehicle nor the insurance company of the vehicle were parties as no claim, whatsoever was made against them. In other words, the claimant was restricted to the entitlements which the deceased was admissible from his owner. It is only a matter of coincidence that the death which was in harness was because of a motor vehicle accident. In other words irrespective of the fact whether death in harness was because of a motor vehicle accident or otherwise the entitlement before the WC Commissioner was an existing and independent entitlement. It is also not the case in hand that WP Case was against the owner of the Vehicle in which the appellant company would come into the scene under the contract to indemnify.

6. The LCR called for has also been perused including the award of WC Commissioner dated 17.02.2012 which has been exhibited as Ext. A.

7. Ms. Choudhury, the learned counsel for the appellant/ Insurance Company has strenuously submitted that Section 167 creates a clear bar for an incumbent in filing claim petitions both in the MACT as well as under the WC Act. Ms. Choudhury, learned counsel would submit that an option is given to an incumbent to elect a forum and once such forum is elected, he is barred from choosing the other forum at a later stage. It is further submitted that right to elect is a forum of legal estoppel in which a party is precluded from raising claim petitions arising out of the same accident in two fora.

8. For ready reference, Section 167 of the Motor Vehicles Act, 1988 is quoted here in below:

It may be mentioned that the similar provision in the earlier Act namely Motor Vehicle Act, 1938 was Section 110-AA.

9. The learned counsel for the appellant in support of her submission relies upon the following decisions:

10. In the case of Mastan, the Hon'ble Apex Court had the occasion to deal with the provision of Section 167 of the Act. The relevant discussions made by the Hon'ble Apex Court are found in Paragraphs- 21, 22, 23, 24 and also in the supplementing part by Hob'le Justice P.K. Balasubramanyan in paragraph 35 which are quoted herein below:

11. In the case of Dyamavva, in paragraph-19 of the judgment, the Hon'ble Apex Court held as follows:

12. The learned counsel for appellant/Insurance Company accordingly submits that the award in question is hit by the bar created under Section 167 of the Act and is accordingly not sustainable in law. It is pertinent to mention that the instant challenge is confined to the issue of applicability of Section 167 only and no other grounds are urged.

13. Per Contra, the learned counsel for the claimant/Respondent submits that the bar of Section 167 of the Act would not come into operation, inasmuch as, the claim under the WC Act was against the employer of the deceased whereas, in respect of the claim made under the M.V. Act , the same is against the owner of the vehicle and the insurance company which is bound by the contract of indemnification. The learned counsel has clarified that in the instant case the employer of the deceased was not the owner of the vehicle and in fact the employer had no connection at all with the vehicle in question and it is only a matter of coincidence that the death during the service had occurred out of a motor vehicle accident. The learned counsel also argues that the provision of Section 167 has been incorporated in the statute book only to avoid a case of double jeopardy to the owner/ insurer of a vehicle involved in motor accident which however, is not the case in hand. Referring to the judgment of the learned Tribunal, more specifically the discussion made in paragraph 10 thereto, which is on the objection regarding Section 167 , the learned counsel has submitted that the award is fully justified which has been passed after due consideration of the provisions of the aforesaid Section 167 .

14. In support of the submission made on behalf of respondent/claimant, the learned counsel has relied upon Page No.# 6/8 the decision of the Madras High Court, Madurai Bench dated 24.09.2018 passed in CMA (MD) No. 443/2012. In the said case, in para-11 & 12, the following observations have been made:

The learned counsel accordingly submits that the award in question is not liable for any interference.

15. Ms. Choudhury, learned counsel for the appellant in her rejoinder submits that the judgment of the Madras High Court, at best would have persuasive value and would not be a binding precedent. Criticizing the decision by the learned Tribunal on the objection raised on the applicability of Section 167 of the Act in paragraph 11 of the Judgment, the learned counsel would submit that the discussion is not supported by legal basis and accordingly the award suffers from legal infirmity.

16. The rival contentions of the learned counsel for the parties are duly considered and the materials before this Court are duly examined.

17. As noted above, Section 167 of the Act gives an option to a party to elect the forum in which a claim arising out of use of a motor vehicle would be made. This statutory principle is to ensure that there should not be 2 claims against the same parties i.e. owner of the vehicle or its insurer. The underlying object of the said Section, as held in a number of judicial pronouncement is to avoid double jeopardy to the owner of the vehicle or its insurer. Thus the test, therefore would hinge upon the fact against whom the claim is made. If in a given case, like the instant one, the claim in the WC Court has got nothing to do with the owner of the vehicle or the Insurance Company, in the opinion of this Court, the absolute bar of Section 167 would not come in. This Court had put a specific query to the learned counsel for the Insurance Company whether they are saddled with any liability in connection with the award and the WC Court which was Exhibited as Ext. A and categorical reply was that the said claim was not against the owner or insurer of the vehicle who were not even parties in the proceeding before the WC Commissioner and therefore, the question of saddling the owner or insurer with any liability did not arise.

18. In view of the same the inevitable conclusion reached by this Court is that the restriction of Section 167 Page No.# 7/8 would not come in operation in the instant case.

19. The Hon'ble Supreme Court in a recent Judgment reported in (2016) 9 SSC 627 ( Reliance General Insurance Company Lt. v. Sashi Sharma and Ors. ) after discussing the law on the subject has held that the duty of the Tribunal is to ensure that a "just" compensation is paid to the claimant in a claim arising out of a motor vehicle accident. Referring to the case of Helen C Rebello reported in (1999) 1 SSC 90, the Hon'ble Supreme Court has made the following observations:

20. In the same case of Reliance (Supra) while discussing the provision of Section 167 and correlating the same to a "just" Award, the compensation under the Head of Pay and Allowance to claimant in the said case as received from the employer under the Rules of 2006 were held to be liable for deduction but Section 167 has not been held to be blanket bar for instituting a claim under the motor vehicle Act if a compensation under the different Act arising out of the death in Motor Vehicle case was applied for.

21. Coming to the facts of the case of the present case, the award of the WC Commissioner which was Page No.# 8/8 exhibited as Ext. A concerns the consolidated amount of Rs. 4,50,000/- from where it is not discernible as to how much of the said amount would be under the Head of Pay of Allowance. In fact reading of the award makes it clear that the dispute was settled on the claimant wherein, the employer namely M/s. Shiv-Vani Oil & Gas Exploration Service Ltd. had agreed to pay a sum of Rs. 5,50,000/- as a lump-sum cash compensation. As stated above the aforesaid employer M/s. Shiv-Vani Oil & Gas Exploration Service Ltd is not connected with the Vehicle involved in the accident.

22. In view of the aforesaid decision, this Court is unable to accept the contention of the appellant insurance company regarding the applicability of the bar under Section 167 of the Act in the instant case and accordingly, the appeal fails.

23. Consequently, the interim order passed in connected Misc. Case 1065/2013 stands vacated. The appellant Insurance Company is directed to deposit the awarded amount in question before the Registry of this Court within 45 (forty-five) days from the date of this judgment and the Registry would release the same to the claimant on proper identification.

24. The Appeal is accordingly dismissed.

JUDGE Comparing Assistant