NEW INDIA ASSURANCE COMPANY LIMITED Vs. GEETA SINHA

JUDGEMENT

(1.) The only point involved in this appeal is with respect to the entitlement of the claimant to maintain the claim petition under section 166 of Motor Vehicles Act in view of the bar created under section 167 of the Act. Section 167 reads thus:

(2.) The contention of the appellant insurer before the Tribunal as also before us during the hearing of this appeal has been that because the claimant had exercised option of receiving compensation from the employee of the deceased under the Workmens Compensation Act, 1923, their right to maintain a claim petition under section 167 of the Motor Vehicles Act stood extinguished and, therefore, the said claim petition should have been dismissed by the Claims Tribunal. For the reasons that we state hereafter we do not find ourselves in agreement with the aforesaid contention of the appellant.

(3.) The expression used in section 167 of the Act is that a person entitled to compensation both under the Motor Vehicles Act as well as under the Workmens Compensation Act, may claim compensation under either of these two Acts, but he or she cannot claim compensation under both the Acts. The expression used in section 167 is, therefore, claim such compensation. It is not the case of the appellant insurer before us that claimant had filed any claim petition under the Workmens Compensation Act, 1923 or had taken any steps in claiming any compensation under this Act before any authority. The admitted facts of the case are that the compensation amount under Workmens Compensation Act, 1923 was paid by the employer of the claimant and this amount was received by the claimant, without the claimant having either claimed the amount or taking steps in claiming this amount by filing any claim application before the authority under the Workmens Compensation Act. Filing of a claim application is different than receiving the claim. Not only that, the facts also indicate that whereas the claim application under section 166 of the Motor Vehicles Act was filed by the claimants in the Tribunal on 28.2.1996, the amount of compensation under Workmens Compensation Act, 1923 was paid to the claimants by the employer of the deceased on 27.1.1998. Even if the doctrine of election is invoked and applied in this case, claimant has elected to prefer the claim application under section 166 of Motor Vehicles Act much before they had received compensation under Workmens Compensation Act and, therefore, applying the doctrine of election, it cannot be said that the claimants even elected to file any claim application under the Workmens Compensation Act prior to the filing of the claim application under the Motor Vehicles Act.