ORIENTAL INSURANCE COMPANY LTD Vs. VERONICA OBRIN

JUDGEMENT

(1.) The award appealed against by the Insurer is of the Workmen's Compensation Commissioner made under the Workmen's Compensation Act,-1923 (for short 'the WC Act'). The insurer's liability under the said award to pay compensation to respondents 1 to 3, who are the dependants of deceased Machale Obrin, a driver of a motor vehicle, has arisen because of a Policy of Insurance issued by it under the Motor Vehicles Act, 1939 (for short 'the MV Act'), issued covering the risk of the driver of that motor vehicle as workman of employer-owner of that motor vehicle, respondent-4. Respondents 1 to 3 have made their claim for compensation under the WC Act for the death of workman (driver) opting to the forum provided for under the WC Act as permitted under Section 110-AA of the MV Act. Such opting disentitled respondents 1 to 3 to make a claim for compensation in the forum provided for under the MV Act, in that, Section 110 - AA forbids the claimants in making the claims for compensation in both forums. Consequently, if a claim is made under the MV Act, a claim under the WC Act becomes unmaintainable. In fact, in a case where a claim for compensation on account of death or bodily injury of a driver, conductor or employee in a motor vehicle is based on a Policy of Insurance issued respecting such motor vehicle under the MV Act and also a Policy of Insurance covering the third party risk issued under the MV Act in respect of another motor vehicle responsible for the accident, it would be advantageous to opt to make a claim for compensation under the MV Act, for, the scope of enquiry to be held thereunder and the reliefs which could be given there against several persons would not be restricted or limited. Relief could be got there not only against the employer or his insurer, but also against the tort-feasor, his master-the owner of the motor vehicle responsible for the accident and its insurer. Such claim if made under the MV Act, Claims Tribunal concerned could grant where permissible, to the claimant compensation higher than that which could be given by the commissioner under the WC Act. Besides, the Claims Tribunal, in such a claim, will be able to fix the liability against several persons concerned and their interse liability. But, if a driver, conductor or employee in a motor vehicle respecting which policy of Insurance was taken under the MV Act suffers bodily injury or dies and the claim for compensation in that regard is preferred by the driver, conductor or employee or the dependents, as the case may be, under the WC Act, the claim has to be restricted to the liability of the employer and the Insurer of such employer. However, filing of a claim by the owner of the motor vehicle or his insurer who has to bear the liability for compensation, does not prevent either of them from proceeding against the owner or Insurer of driver of the other motor vehicle responsible for the accident, before the Claims Tribunal under the MV Act for obtaining reimbursement of the liability suffered by any of them. If claim for compensation, which could have been made under the WC Act, and claim for compensation, which could have been made the MV Act arising from the same motor accident due to collision of two motor vehicles are made before Claims Tribunal under the M V Act, the course, which the Claims Tribunal could adopt, is to club those claims together, hold a common enquiry and decide upon all matters including the interse liability for compensation among the persons concerned which may arise for consideration. Under any circumstance, if an award is obtained by claimant/s by filing a claim under the WC Act, the amount payable thereunder should be reduced by the amount obtained by such claimants, in a claim made under the MV Act, before the Claims Tribunal, for, such reduction becomes permissible because of the entitlement of the employer and the Insurer to obtain reimbursement of the liability for compensation to the claimants from tort-feaser. How, by whom, against whom and in what manner a claim for compensation under the MV Act Should be decided since depends on a given fact situation, the same cannot admit of enumeration.

(2.) Coming to the award under appeal, as the same has since been made on the basis of a claim made under the WC Act, according to the option exercised by claimant/s as provided for in Section 110-AA of the MV Act, the appeal therefrom by an insurer on grounds other than those on which he could have defended the claim under Section 96 (2) of the MV Act becomes unmaintainable, as has been held by us in New India Assurance Company Limited v Raja Naika, 1992 (2) Kar. L.J. 672 : ILR 1992 Kar. 1325.

(3.) Hence, we dismiss this appeal, but without prejudice to the appellant-Insureror the in sured-employer to obtain reimbursement of their liability under the award in appeal, from such person/s who may become liable lor such reimbursement, by having recourse to such remedies as may be open to them in law.