KRISHNA MOURYA Vs. J P SHARMA

JUDGEMENT

(1.) AGGRIEVED of the dismissal of the application under Section 166 of the Motor Vehicles Act, 1988, for award of compensation for the death of Shiv Prasad Mourya, arising out of an accident by the use of a two-wheeler Kinetic-Honda scooter, the appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act' ).

(2.) FACTS giving rise to this appeal are: The deceased, a daily wager, was getting Rs. 627/- per month working as a peon in O. F. K. Government College, Khamariya, Jabalpur, of which the respondent No. 1 was the Principal. The respondent No. 1 is a cardiac patient, therefore, the deceased used to bring him on the said scooter bearing registration No. MP-20c-2737. On 18. 5. 91, which was a holiday, the deceased went to the residence of the respondent No. 1, where he was asked by the respondent No. 1 to fill up the fuel and to check the air of the wheels of the scooter. While the deceased was coming back with a pillion rider Akaldas, the scooter struck with an electric pole, as a result of which the deceased who was driving the scooter died at the spot. The pillion rider received multiple injuries. The appellants/legal representatives of the deceased filed an application under Section 166 of the Act to claim compensation for the death of the deceased arising out of and during the course of employment. No averment was made of negligence in the application, so as to hold the owner and insurer of the vehicle liable for the tortious act. After recording the evidence, the Tribunal dismissed the application for compensation holding that it has no jurisdiction to pass an award, as the appellants have failed to establish the negligence on the part of the owner of the vehicle. The Tribunal further observed that the appropriate remedy, if any, in the circumstances, is to claim compensation under the provisions of the Workmen's Compensation Act, 1923 (for short 'the WC Act' ).

(3.) MR. S. K. Jain, learned Counsel for the appellants, submitted that the Tribunal illegally dismissed the application for compensation ignoring Section 167 of the Act which gives an option regarding claim for compensation, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act, and under the WC Act, the person entitled to compensation may without prejudice to the provisions of the said Act claim such compensation under either of these Acts, but, not under both.