Lalita Yadav Vs Chief General Manager

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Digitally signed by AVANISH KUMAR PATHAK Date: 2024.10.24 10:57:05 +0530

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2024:CGHC:41018

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 18 of 2020

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1 - Lalita Yadav W/o Late Tipuram Aged About 52 Years R/o Ward No. 04, Manendragarh, District Koriya, Chhattisgarh. (Claimant), District : Koriya (Baikunthpur) CG

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2 - Archana Yadav D/o Late Tipuram Aged About 16 Years Minor Through Mother Lalita Yadav, W/o Late Tipuram, Aged About 52 Years. R/o Ward No. 04, Manendragarh, District Koriya, Chhattisgarh. (Claimant), District : Koriya (Baikunthpur), CG

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... Appellants

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versus

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1 - Chief General Manager South Eastern Coal Fields Ltd, South Jhagrakhand Ledri, District Koriya, Chhattisgarh., District : Koriya (Baikunthpur), CG

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2 - Dipo Officer Regional Store, S.E.C.L. Hasdeo Area Bijuri, District Anuppur Madhya Pradesh. (Owner)

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3 - United India Insurance Company Ltd. Branch Shahdol, Madhya Pradesh. (Insurer)

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4 - Pannalal Upadhyay S/o Arjunlal Upadhyay, R/o C Sector Rajnagar, Thana Bijuri, District Annuppur, Madhya Pradesh. (Driver)

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... Respondents

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For Petitioners : Shri Parag Kotecha, Adv. For Respondents No. 1 and 2 : Mr. Vinod Deshmukh, Adv. For respondent No. 3 Shri Anupam Dubey, Adv.

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(Hon’ble Shri Naresh Kumar Chandravanshi, J)

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Order on Board

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17/10/2024

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1. With consent of the parties, the matter is heard finally.

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2. This MAC has been preferred against the award dated 6-12-2019

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passed by the 1^st Additional Motor Accident Claims Tribunal, Manendragarh, Distt. Koriya (CG) in Claim Case No. 12/2015, whereby application filed by

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the appellants/claimants under Section 166 of the Motor Vehicles Act, 1988 (hereinafter, referred to as ‘the Act of 1988’) has been dismissed as not maintainable.

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3. Facts of the case, in brief, are that on 20-6-2013, Tipuram, who was employee of respondent/SECL, died in motor accident. Being wife and daughter of deceased, the appellants/claimants filed application under Section 166 of the Act of 1988 against the respondents for grant of compensation to the tune of Rs. 76,44,000/-. After entering into appearance, respondents No. 1/SECL filed its reply, reply was also filed by respondent No. 3/Insurance Company, in which, they raised objection that, the claim application filed by the appellants/ claimants under Section 166 of the Act of 1988 is not maintainable, because on account of death of Tipuram, an employee of SECL, claimants have obtained compensation to the tune of Rs. 5,89,800/- from respondents/SECL as after the accident, aforesaid amount was deposited by the SECL on 17-7-2013, as per provisions of Section 3 of the Workmen Compensation Act, 1923 (henceforth, referred to as ‘Act of 1923’).

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4. After hearing both the parties, learned Claims Tribunal vide award dated 6-12-2019 dismissed the application filed by the claimants, holding therein that, since they have obtained amount of compensation paid by the respondents No. 1/ SECL, therefore, in view of provisions of Section 167 of the Act of 1988, their claim application is not maintainable.

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5. Being aggrieved by aforesaid impugned award dated 6-12-2019, the appellants have filed instant appeal.

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6. Learned counsel for the appellants/claimants would submit that, the claimants had obtained compensation amount, which was deposited by

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the employer/SECL after death of Tipuram, but that amount was deposited by respondent/SECL without any application made to it by the claimants, as such, it was deposited by the SECL suo motu. He would further submit that Tipuram died on motor accident, therefore, as per Section 167 of the Act, 1988, there is option vested with the claimants that, whether they may file application for compensation under the Workmen Compensation Act, 1923 or they may file application under the Motor Vehicles Act of 1988. Claimants opted the Act of 1988 to get compensation, as such, they filed application under Section 166 of the Act of 1988 before learned Claims Tribunal. It is further submitted that, claimants have never filed any application choosing option to get compensation under the Workmen Compensation Act, 1923, despite that, only because they had obtained amount of compensation Rs. 5,89,800/- deposited by the employer/SECL, learned Claims Tribunal has rejected their claim application as not maintainable, but the same is perverse and illegal, as the claimants have only opted their option to get compensation by filing application under Section 166 of the Act of 1988. Hence, their application ought not to have been rejected by learned Claims Tribunal. Hence, it is prayed that, this appeal may be allowed by setting aside the impugned award passed by learned Claims Tribunal and the Claims Tribunal may be directed to consider the claim application filed by the appellants under Section 166 of the Act of 1988. In this regard, he relied in the judgment rendered by Hon’ble Supreme Court in the case of Oriental Insurance Company Limited Vs. Dyamavva and others (AIR 2013 SC 1853) .

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7. Per contra, learned counsel appearing for the respondents would submit that, since claimants have received amount of compensation

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deposited by employer/SECL in view of provisions of Section 3 of the Act of 1923, therefore, the remedy available to them was to file application under Section 10 of the Act of 1923, instead of taking second option by filing application under Section 166 of the Act of 1988. It is further submitted that, since appellants/claimants have already opted to get compensation under the Act of 1923, therefore, they cannot file application under Section 166 of the Act of 1988, as such, the award impugned does not suffer from any perversity or illegality, hence, the appeal is liable to be dismissed.

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8. I have heard learned counsel for the parties and perused the material available on record.

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9. In instant case, it is not in dispute that, on account of death of Tipuram, the employer/SECL had deposited amount of Rs. 5,89,800/- on 177-2013 as compensation in compliance of provisions of Section 3 of the Act of 1923. It is also not disputed by learned counsel for the claimants that, the amount was received by the claimants and, thereafter, the claimants have filed application under Section 166 of the Act of 1988 on 28-11-2014 before the First Additional Motor Accident Claims Tribunal, Manendragarh.

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10. Section 167 of the Act of 1988, provides the provision to opt or file application either under the Act of 1923 or file application under the Act of 1988. In this regard, Section 167 of the Act of 1988 is quoted hereinbelow :-

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“167. Option regarding claims for compensation in

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certain cases.

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Notwithstanding anything contained in the Workmen's Compensation Act, (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

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to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.”

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11. A perusal of aforesaid provision specifically shows that, compensation application can be filed only under one Act. It is stated that, in instant case, prior to filing claim application by the appellants under Section 166 of the Act of 1988, amount of compensation Rs. 5,89,800/- was deposited by employer/SECL on 17-7-2013. During course of submission, when specific question was posed, then learned counsel for both the parties could not apprise the Court, as to, on which date, alleged amount was received by the claimants, but learned counsel for the claimants admitted that, the claimants have obtained aforesaid amount prior to filing application for compensation under the Act of 1988. As such, the issue for consideration of this Court is that, whether receiving aforesaid amount by the claimants can be termed that they have opted the Act of 1923 for redressal of their grievance/getting compensation on account of death of Tipuram.

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12. In the case of Dyamavva and others ( supra), on account of death of a person, his family members had filed application under Section 166 of the Act of 1988. After 4 months of filing aforesaid application, employer deposited amount of compensation in view of provisions of Section 3 of the Act of 1923, which was received by claimants, therefore, objection was raised that application under Section 166 was not maintainable. Case travelled upto Supreme Court. In aforesaid case, Hon’ble Supreme Court, while considering the provisions of Section 10 of the Act of 1923 and Section 166 of the Act of 1988, has observed as under in para 12 :-

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“12. The issue to be determined by us is, whether the

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acceptance of the aforesaid compensation would amount to the claimants having exercised their option, to seek compensation under the Workmen's Compensation Act, 1923. The procedure under Section 8 aforesaid (as noticed above) is initiated at the behest of the employer "suo motu", and as such, in our view cannot be considered as an exercise of option by the dependants/claimants to seek compensation under the provisions of the Workmen's Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under Section 10 of the Workmen's Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under Section 10 of the Workmen's Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmen's compensation Act. Suffice it to state that no such application was ever filed by the Respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the Respondentsclaimants having never exercised their option to seek compensation under Section 10 of the Workmen's Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988.”

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13. Having considered the aforesaid dictum of Hon’ble Supreme Court, if facts of instant case are considered, then admittedly, in instant case, claimants have obtained amount of compensation, which was deposited by employer/SECL in compliance of Section 3 of the Act of 1923, but that

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amount has been deposited by SECL suo motu i.e. without any application filed by claimants under the Act of 1923, rather, first time, they filed application for grant of compensation on account of death of Tipuram under Section 166 of the Act of 1988, therefore, only receiving compensation deposited by the employer/SECL suo motu cannot be treated that the claimants have opted to take recourse of law to get compensation under the Act of 1923. Rather, it is clear that first time, they filed application under Section 166 of the Act of 1988 for getting compensation on account of death of Tipuram. Therefore, in view of above discussion and dictum given by Hon’ble Supreme Court in the case of Dyamavva and others (supra), the order impugned passed by learned 1^st Additional Motor Accident Claims Tribunal, Manendragarh, Distt. Koriya suffers from illegality, hence the same is set aside. Learned 1^st Additional Motor Accident Claims Tribunal, Manendragarh, Distt. Koriya is directed to restore Claim Case No. 12/2015 in its original file and proceed further in accordance with law.

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14. Record of the Claims Tribunal be returned forthwith.

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15. Learned counsel for both the parties are directed to keep their respective parties present before the concerned Claims Tribunal on 27-112024.

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16. Instant appeal is accordingly allowed.

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Sd/-

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(Naresh Kumar Chandravanshi)

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JUDGE