JUDGMENT
P.C. Verma, J.
1. This appeal has been preferred Under Section 173 of Motor Vehicles Act, 1988 (in short ‘the Act’) against the judgment and award dated 4.7.2003, passed in the M.A.C. Petition No. 112 of 2002, Nandi Devi v. Mangal Singh by the Motor Accidents Claims Tribunal/District Judge, Nainital (hereinafter referred to as ‘the Tribunal’), whereby the learned Tribunal dismissed the claim petition filed by the claimant-appellant.
2. Brief facts giving rise to the present appeal are that the claimant-appellant filed claim petition under Section 166/140 of the Act before learned Tribunal for compensation of Rs. 11,60,000 with the allegation that on 11.11.2000 her son Kundan Singh was going from Pithoragarh to Haldwani by vehicle No. UP 03-3178 along with his goods loaded thereon; that at about 5 p.m. near village Sheragaon (Ghat) suddenly the steering went out of order with the result the vehicle fell down in the khud with the result Kundan Singh sustained grievous injuries on different parts of his body. He was brought to B.D. Pandey Government Hospital at Pithoragarh for treatment but his condition did not improve, therefore, he was referred to K.G.M.C., Lucknow for treatment. He was hospitalised there for two months but he could not recover and died on 27.2.2001 at his parental village. Report of the incident was lodged with P.S. Pithoragarh, hence the claim petition was filed by the mother of the deceased.
3. O.P. No. 1, owner of the vehicle, contested the case and filed his written statement. He asserted that the deceased was deputed by the management to (sic) transportations of truck at the salary of Rs. 3,000 per month besides diet money. He admitted the ownership of the truck and further prayed that the vehicle was being run with valid driving licence and other valid papers. It was pleaded that the truck was duly insured on the date of accident.
4. O.P. No. 2, insurer of the vehicle, filed its separate written statement and denied material allegations for want of knowledge. The insurance of the truck was also denied. In the additional pleas it was asserted that the claimant filed a Case No. 51 of 2000 against Mangal Singh and O before the Workmen’s Compensation Commissioner, Haldwani on different and contradictory facts which was contested by the insurer. It was also pleaded that no information under Section 158(6) of the Act was given to the insurance company. The claimant is under obligation to prove that the vehicle was insured.
5. Learned Tribunal framed as many as four issues in the case. Issue No. 1 related to rash and negligent driving by the driver of the truck in question as well as its insurance with the O.P. No. 2. The issue No. 3 related to maintainability of the claim petition by the claimant. Issue Nos. 2 and 4 related to dependency of the claimant on the deceased and relief respectively.
6. In support of the claim petition the claimant examined herself as PW 1, Bheem Singh as PW 2 and Ritesh Pandey as PW 3 in oral evidence. A number of documents were also filed in documentary evidence. The O.P. Nos. 1 and 2 have led no oral evidence but have filed documents in support of their contentions.
7. After considering the entire material on record, the learned Tribunal took up all the four issues together for decision. Ultimately, the learned Tribunal dismissed the claim petition mainly on the preliminary/ technical ground that the claimant had filed a claim petition before the Workmen’s Compensation Commissioner which was registered as Case No. 51 of 2002, Nandi Devi v. Mangal Singh, therefore, it was not open to the claimant to file a claim petition again under the provisions of the Motor Vehicles Act. Besides it, few other grounds for dismissal of claim petition have been mentioned in the impugned order. It may be mentioned here that the oral evidence led by the parties had not been dealt with by the learned Tribunal in its judgment and order dated 4.7.2003.
8. Aggrieved by the impugned order, claimant-appellant has come up in appeal on the ground that learned Tribunal erred in appreciating the provisions of Sections 140 and 167 of the Motor Vehicles Act. It was contended that Section 167 of the Act clearly gives an option to the claimant-appellant either to prefer a claim petition before the learned Commissioner or before the Claims Tribunal. It was submitted that the claim petition before the learned Commissioner was not decided on merits, rather the same was withdrawn by the claimant-appellant.
9. We have heard learned Counsel for both the parties and have carefully examined the entire material on record including the impugned order.
10. In the course of argument, a reference has been made by the learned Counsel for the appellant to the questionnaire filed along with the memo of appeal and it was submitted before us that the claimant-appellant had withdrawn the claim petition filed before the learned Commissioner on 4.6.2002 before filing the present claim petition before the learned Tribunal on 13.6.2002. It was further submitted that under Section 167 of the Act it is provided that a person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts, i.e., Motor Vehicles Act and the Workmen’s Compensation Act, 1923, but not under both.
11. We have considered the submissions made on behalf of the appellant and have examined the document referred to above. Section 167 of the Motor Vehicles Act reads as under:
167. Option regarding claims for compensation in certain cases.–Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
12. In support of the contention, learned Counsel for the appellant placed reliance upon the case of Managing Director, Karnataka Power Corporation Ltd. v. Geetha 1988 ACJ 251 (Karnataka), wherein the provisions of the old Act under Section 110-AA were considered. In that case the claimants did not initiate and prosecute any remedy under Workmen’s Compensation Act, 1923. In para 11, it was observed that:
(11) …Wherever there was an employment injury or death, the employer is required by that law to deposit such amounts as are awardable under the Schedule to that ‘Act’ with the Commissioner within the stipulated time. In depositing the amount, the appellants purported to discharge their statutory obligation under that law. If that amount is paid over to the claimants, all that can be said is that such payment should be given deduction to in the compensation awardable in these proceedings. The bar contained in Section 110AA of the Motor Vehicles Act, is not attracted, because the claimants have not made any election under Section 110-AA.
It was further held that:
(12) …In the particular circumstances of this case and having regard to the fact that at the time of receiving this sum in response to the notice by the Commissioner, they had already initiated proceeding before Claims Tribunal under Section 110-A, it is not possible to read into their conduct, a conscious choice of a forum which they could be said to have elected….
Proceedings under the Motor Vehicles Act were held maintainable.
13. Learned Counsel for the claimant appellant also placed reliance upon the case of Rita Devi v. New India Assurance Co. Ltd. , wherein meaning and scope of death under Section 3 of the Workmen’s Compensation Act, 1923 were considered. It was held:
Whether judicially accepted interpretation of word ‘death’ in Workmen’s Compensation Act is applicable to the interpretation of the word ‘death’ in Motor Vehicles Act–Held: yes; objects of the two Acts are not in any way different; both Acts provide compensation to the victims of accidents.
14. On behalf of respondents, it could not be shown before us that claim petition preferred by claimant-appellant before the learned Commissioner was not withdrawn on 4.6.2002 or the same was decided otherwise by the Workmen’s Compensation Commissioner. The question-answer filed by appellant clearly shows that the claim petition before the learned Commissioner was withdrawn on 4.6.2002, which was registered as Case No. 51 of 2002. It further shows that the petition was not finally adjudicated by the learned Commissioner on the point of compensation. Admittedly, the present claim petition before learned Tribunal was filed on 13.6.2002. Therefore, in view of the provisions of Section 167 of the Motor Vehicles Act, it cannot be said that the matter of compensation was finally adjudicated by the learned Commissioner and the option of filing the claim petition before the learned Tribunal had been taken away from the appellant.
15. Learned Counsel for the appellant also relied upon the case of Government of Andhra Pradesh Transport Department v. K. Padma Rani 1975 ACJ 462 (AP), wherein the High Court of Andhra Pradesh observed that a claim for compensation under the Motor Vehicles Act by the wife and daughter of a passenger in a State-owned motor vehicle whose death was caused by the negligent and rash driving of the vehicle, is not barred in view of Section 110-AA of the Act, by the fact that a claim was also made subsequently under the Workmen’s Compensation Act and was dismissed for default.
16. In view of the discussion aforesaid, we are of the view that the learned Tribunal was not justified in not entertaining the claim petition filed by claimant-appellant. We hold that the claim petition is maintainable. Issue No. 3 is decided accordingly. It is a case fit for remand. Appeal deserves to be partly allowed.
17. The appeal is partly allowed. The impugned judgment and the order dated 4.7.2003 is set aside. The matter is remanded to Motor Accidents Claims Tribunal/ District Judge, Nainital, for decision afresh on merits on issue Nos. 1, 2 and 4 in accordance with law. The learned Tribunal shall afford opportunity of hearing to both the parties.