NATIONAL INSURANCE CO. LTD. Vs. BAKKIAM

JUDGEMENT

(1.) The insurer of the first respondent in M.C.O.P.No.1373 of 2002 before the Motor Accident Claims Tribunal has preferred this appeal challenging in essence the maintainability of the very Claim.

(2.) Lokeshwaran was an employee of the second respondent (the first respondent before the Tribunal) as his lorry driver. On 18.05.1993, when he was on the wheels of the said lorry, due to a head on collision with a bus belonging to the State Transport Corporation, Lokeshwaran died on the spot. The claimant/first respondent is Lokeswaran's mother and she first moved the authority under the Workmen's Compensation Act, 1923 (would be referred to as WC Act) for the death of her son, but lost the claim. Instead of preferring an appeal under Sec.30 of the said Act, the claimant moved the Motor Accidents Claims Tribunal (MACT for short) seeking compensation under Sec.166 of Motor Vehicles Act (MV Act, for short) with a claim of Rs. 5.0 lakhs. This was resisted by the appellant insurance company of the lorry on the ground that inasmuch as the claimant had elected to prefer a claim under the WC Act, a second claim before MACT was not maintainable in view of the bar under Sec.167 of the Act. It produced the copy of the order passed in the Claim petition preferred under the WC Act as Ext.R- This document disclosed that the Tribunal under the WC Act rejected the Claim before it solely on the basis of its suspected identity of the victim who died in the accident, and dismissed the claim summarily. It did not even consider it necessary to quantify the compensation. Holding that both Lokeshwaran and the driver of the bus had contributed in equal terms to the occurrence of the accident, the MACT proceeded to deal with the objection of the insurance company and held that even though the Commissioner under the WC Act had dismissed the petition, nowhere had it held that the claimants/petitioners before it were not entitled to compensation and held that the claimant would be entitled to compensation in terms of Sec.163-A of the MV Act and awarded Rs. 3,47,000/- payable with interest at 7.5% p.a. In other words the Tribunal fell back on Chapter X of the MV Act dealing with 'No fault' liability which is an exception to the operation of Sec.167. It apportioned the liability equally between the employer of Lokeshwaran (owner of the lorry) and his insurer for one half and the State Transport Corporation for the other half.

(3.) The insurnace company of the lorry felt aggrieved by the award passed and has preferred this appeal. The only point raised and argued with a degree of emphasis by the appellant's counsel is that the claimant/first respondent had earlier moved the Commissioner the WC Act seeking compensation against his employer in W.C.No.70/ 1994 and the same was dismissed on merits by the Commissioner, Vide his order dated 24-04-1995. However, without challenging the said award on merits, the claimant has approached the Tribunal with a fresh claim for compensation, which is positively prohibited under Sec. 167 of the Motor Vehicles Act. The learned counsel has also brought to the notice of the Court that in column 22(ii) of the Claim petition which is intended for furnishing the details of earlier claim by the claimant, she has opted to suppress the factum of her earlier unsuccessful attempt to obtain compensation in W.C. 70/1994 and has stated a mere 'No' for an answer. Since the claimant had already elected to move one of the forums constituted for remedying her cause and lost that action, it is impermissible in law for her to make a fresh claim twice over and hence the petition is not maintainable in law. To lend strength to his submissions the learned counsel relied on the authorities in National Insurance Company v. Mastan & Another [2006] 2 SCC 641 and Oriental Insurance Company Limited v. Dyamavva & others [2013] 9 SCC 406.