Harivadan Maneklal Modi And Another v. Chandrasinh Chhatrasinh Parmar And Others

Ahmadi, J.:— The short question which arises for our consideration in this appeal is whether the Claims Tribunal was right in holding that since the appellants had received an amount of Rs. 21,600/- by way of compensation under the Workmen's Compeasation Act, 1923, they were barred by virtue of S. 110AA of the Motor Vehicles Act, 1939 from claiming compensation under the latter Act? The brief facts leading to this appeal may be stated as under.

The appellants, who are the original petitioners, are the parents of deceased Bharat Harivadan Modi who died in a vehicular accident which occurred on October 8, 1979. A jeep car GRC 97 belonging to Jagdish Electric Company driven by Rajendraprasad Pande ran into a stationary tanker GTB 6022 which was parked partly on the tar road without the tail light switched on. The jeep was proceeding on National Highway No. 8 from Ahmedabad to Bhalod with four passengers including the deceased when the collision in question occurred. In the accident, Bharat and one another were seriously injured and they succumbed to the injuries. Bharat died on the next day at the S.S.G Hospital, Baroda.

2. The Claims Tribunal came to the conclusion that the accident was on account of the sole negligence of the tanker driver in parking the vehicle partly on the tar road without the tail light switched on. The owner, driver and the Insurance Company of the tanker were, therefore, held liable to compensate the appellants, the parents of the deceased. In the course of evidence before the Tribunal it, however, transpired that the parents of the deceased had received an amount of Rs. 21,600/- under the provisions of the Workmen's Compensation Act from the Court of the Civil Judge, Senior Division, Vadodara, the authority under the Workmen's Compensation Act. Placing reliance on S. 110AA of the Motor Vechides Act, the Claims Tribunal came to the conclusion that since the appellants had already exercised their option to receive compensation under the Workmen's Compensation Act, they were not entitled to claim compensation under the Motor Vehicles Act. The Claims Tribunal, however, determined the amount of compensation at Rs. 89,875/- with proportionate costs and interest to which the appellants were entitled but for the bar of S. 110AA of the Motor Vehicles Act. Against this decision of the Claims Tribunal the original petitioners, the parents of the deceased, have preferred this appeal.

3. The short question which, therefore arises for consideration is whether the Claims Tribunal was right in holding that in view S. 110AA of the Motor Vehicles Act the appellants were not entitled to compensation since they had already received compensation under the Workmen's Compensation Act. In order to determine whether this view the Claims Tribunal is well founded, it would be proper to reproduce the relevant provision at this stage. Section 110AA reads under:—

“110AA. 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 this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both.”

It may here be mentioned that by a subsequent amendment introduced by Act 47 of 1982 for the words “may claim such compensation” the words, figures and letters” “may, without prejudice to the provisions of Chapter VIIA, claim such compensation” came to be substituted. However, since the accident occurred in October 1979 and the claim petition was filed in 1980, we will be concerned with the provision as it stood at that point of time.

4. On a plain reading of S. 110AA it is clear that where death gives rise to a claim for compensation under the provisions of the Motor Vehicles Act as well as Workmen's Compensation Act, the party entitled to compensation can claim compensation under either of those Acts but not under both. The words ‘may claim’ make it clear that the option is left to the person entitled to compensation to choose whether he would seek the remedy available under the Motor Vehicles Act or the Workmen's Compensation Act. He has to choose either of these two remedies but not both. It is, therefore, obvious that if he has exercised his option and has chosen one of the two remedies available to him he would be entitled to compensation under the chosen remedy only. Once he has exhausted his right to seek compensation under either of the two statutes, he cannot claim compensation under the other statute. In other words, if he opts to claim compensation under the Workmen's Compensation Act, he cannot at the same time or subsequently claim compensation under the Motor Vehicles Act. Therefore, if it is established that in the present case the appellants had chosen their remedy under the Workmen's Compensation Act, there can be no doubt that they would not be entitled to compensation under the Motor Vehicles Act. It is, therefore, a question of fact in each case whether or not the person entitled to compensation had exercised his option under either of the two statutes. In the present case, the Claims Tribunal has observed that “the applicants have already exercised their option to receive compensation under the Workmen's Compensation Act”. However, what the father had admitted in the course of his deposition was that he had ‘received’ Rs. 21,600/- from the Court of the Civil Judge, Senior Division, Baroda, an authority under the Workmen's Compensation Act, by way of compensation. The father in his evidence has merely stated that he had ‘received’ Rs. 21,600/- from the authority under the Workmen's Compensation Act. In the observation of the Claims Tribunal extracted above also we find the use of a similar expression. Mr. Mehta, therefore, submitted that mere receipt of compensation under the Workmen's Compensation Act will not denude the appellants of their right to claim compensation under the Motor Vehicles Act because under the latter statute a right to claim compensation is conferred and that right can be taken away only if the person entitled to compensation has made a claim under the Workmen's Compensation Act. He submitted that the expression “may claim” denotes a voluntary conscious act on the part of the person entitled to compensation to choose his remedy under either of the statutes. However, if he has not applied for compensation or claimed compensation under the Workmen's Compensation Act, he cannot be deprived of his remedy under the other statute merely because he has ‘received’ compensation under the former Act. In order to appreciate this contention, it would be advantageous to refer to a few of the provisions under the Workmen's Compensation Act.

5. The Workmen's Compensation Act was enacted to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident. Section 3 casts an obligation on the employer to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment. The amount of compensation to be paid by the employer is set out in S. 4 of the Act. The section provides for compensation at varying rates in cases where death results from the injury or the injured suffers a permanent total disablement on account of the injury. Section 4A obligates the employer to pay compensation as soon as it falls due failing which on the expiry of one month he becomes liable to pay interest and penalty as provided therein. It will be clear from the above provisions that under the statute the employer is under the obligation to pay compensation to the person who has suffered an injury in the course of employment within the prescribed period. If he fails to pay compensation within the said period, he becomes liable to payment of interest and penalty as may be imposed. We may next turn to S. 8 which requires the employer to deposit the amount of compensation with the Commissioner appointed under S. 20 of the Act. After the amount is deposited, the Commissioner has to apportion the amount payable to each dependant and disburse the same. The form for depositing the amount has been prescribed by the Rules framed under the Act. It is, therefore, obvious from the aforesaid provisions of the Act that the dependents of the deceased may receive compensation without any application made by them on the amount having been deposited by the employer as required by the statute. The employer would naturally be keen to deposit the amount which is due to the dependents of the deceased to avoid payment of interest and penalty. Mr. Mehta is, therefore, right that the mere fact that the appellants had received compensation under the Workmen's Compensation Act is not sufficient to deprive them of their remedy by virtue of S. 110AA of the Motor Vehicles Act. In the present case Mr. Mehta submitted that the appellants had not applied for compensation under the Workmen's Compensation Act. This submission is not controverted. He, therefore, submitted that merely because the appellants had received compensation deposited by the employer suo motu to discharge his obligation under the statute, it cannot be said that the appellants had exercised their option to claim compensation under the said statute and were, therefore, debarred from claiming compensation under the Motor Vehicles Act. We see considerable force in this submission. We have already pointed out earlier that under S. 110AA of the Motor Vehicles Act the person entitled to compensation ‘may claim’ such compensation under either the Workmen's Compensation Act or the Motor Vehicles Act but not both. The words ‘may claim’ clearly indicate that the option is with the person entitled to compensation and that option cannot be taken away by the act of a third party discharging his obligation under the Workmen's Compensation Act. The appellants could not have prevented the employer from discharging his obligation under the said statute by depositing the amount of Rs. 21,600/- to which the appellants were entitled under that statute. Therefore, on the employer having deposited the amount for the performance of the obligation cast on him by S. 4 of the Workmen's Compensation Act, it cannot be said that the appellants had made a claim under that statute for compensation. In order to negative the claim made under the Motor Vehicles Act it must be shown that the person entitled to compensation had made a claim for compensation under the Workmen's Compensation Act. The key words are ‘may claim such compensation’ under either of the statutes. These words clearly indicate that the person entitled to compensation must take a conscious decision and opt for compensation under one or the other statute. Deposit of compensation money by a third party in discharge of his obligation under the Workmen's Compensation Act can never tantamount to the option being exercised by the person entitled to compensation. We are, therefore, of the opinion that receipt of compensation money deposited by the employer in discharge of his obligation under S. 4 of the Workmen's Compensation Act without the appellants having made any claim for compensation under that statute cannot debar the appellants from claiming compensation under the Motor Vehicles Act by virtue of S. 110AA thereof. Such deposit of compensation money and receipt thereof by the dependents of the deceased will not amount to making a claim by the dependent of the deceased under the provisions of the Workmen's Compensation Act. It must be realised that the Motor Vehicles Act being a benevolent legislation, if two interpretations are possible the one which advances the legislative intent of providing ‘just’ compensation to the victims of a motor accident must be preferred. Any provision which purports to take away or abridge the right to claim compensation under the said statute must receive strict interpretation. In the present case we are, however, of the opinion that the language of S. 110AA is clear and it unambiguously conveys that the option is with the dependents to choose their remedy under either of the statutes, and mere deposit of compensation money by a third party and receipt thereof by the dependents cannot amount to exercise of option, for to do so would tantamount of foisting an option not exercised by the dependents. The language of S. 110AA in our opinion, is not capable of two meanings but even if it were so we would have preferred the meaning which would have furthered the legislative policy of granting just compensation to the victims of motor accidents.

6. In this view that we take we are of the opinion that the Tribunal was in error in coming to the conclusion that the appellants had exercised their option on receipt of compensation from the authority under the Workmen's Compensation Act even though they had in fact not preferred any claim under that statute and were, therefore, debarred from claiming compensation under the Motor Vehicles Act. We are, therefore, of the opinion that the appellants were entitled to compensation under the Motor Vehicles Act.

7. The Claims Tribunal has determined the compensation at Rs. 89,875/-. The claimants had, however, made a claim of Rs. 77,875/- only. They cannot, therefore, get more than what they had claimed. Out of this amount, Mr. Mehta farely concedes that, Rs. 21,600/- received by the claimants from the authority under the Workmen's Compensation Act may be deducted. He also concedes that the claimants have received Rs. 15,000/- from the New India Assurance Company which too may be deducted. That gives a balance of Rs. 41,275/-. There will, therefore, be an award against the original Respondents 1 and 5 only in favour of the Appellants in the sum of Rs. 41,275/- with costs calculated on the total amount of Rs. 77,875/- and interest at 9% p.a on 41,275/- from the date of the claim application till payment. Out of the amount arded Rs. 10,000/- may be paid to the appellants in cash and the balance may be deposited in a long term fixed deposit of five years in any scheduled bank with a provision that interest thereon will be paid to the appellants quarterly. No advance or loan will be granted on the said fixed deposit nor will the fixed deposit be permitted to be used as security for any other loan without the express permission of this Court.

The appeal is allowed accordingly with costs.

Appeal allowed.