NATIONAL INSURANCE COMPANY Vs. SUSHILA BAI

JUDGEMENT

(1.) This is an appeal filed by the Insurance Company under Section 173 of the Motor Vehicles Act against the award dated 6.9.2005 passed by the MACT Indore in claim case No.103/05, by which the Claims Tribunal allowed the claim petition of the claimants(respondents No.1 and 2 herein) and awarded a total sum of Rs.3,14,440/- toward compensation for the death of one Durgesh aged about 20 years, who died in vehicle accident. According to the insurance company appellant herein learned Member of Claims Tribunal committed error in determining the compensation payable to the claimants to the extent of Rs.3,14,440/. According to them the compensation is on higher side being in excessive in nature deserves to be reduced so that to make it just and reasonable. Learned counsel for the appellant further challenges the validity of the award on the ground that since the respondent No.1 and 2 approached the Commissioner, Worksmen Compensation, therefore, respondents No.1 and 2 lost their right to ask for compensation before the Claims Tribunal under the provisions of Motor Vehicles Act.

(2.) Short facts of the case are that in a motor accident, which took place on 21.10.2003 Durgesh son of respondent No.1 and elder brother of respondent No.2 died. The offending vehicle was driven by respondent No. 4. In the claim petition it was alleged that the deceased Durgesh was working as cleaner/helper on the offending vehicle. It was alleged that the claimants No. 1 and 2 firstly file the claim petition before the Commissioner Workmen's Compensation at Labour Court Indore and the case was registered as case No.59/02 WC and the Claim petition was withdrawn vide order dated 23.2.2005 with the liberty to file a claim petition before the Motor Accident Claims Tribunal. Thereafter, the claim petition was filed before the learned Tribunal, which was contested by the appellant and also by respondent No.3 on various grounds. After framing of the issues and recording evidence, the learned Tribunal awarded the compensation of Rs 3,14,440/ against which present appeal has been filed.

(3.) Shri Milind Fadke, learned counsel for appellant submits that since the respondent No.1 and 2 filed the claim petition before the Commissioner, Workmen Compensation, therefore, they were debarred from filing the claim petition before the learned Tribunal. For this contention reliance has been placed on Section 167 of the Motor Vehicle Act, wherein it is laid down that in case of death or bodily injury to any person which gives rise to a claim for compensation under the Motor Vehicles Act and also Workmen's Compensation Act 1923 the person entitled to compensation may claim such compensation under either of those Act but not under both.