PANWAR, J. - (1.) THIS appeal is directed against the judgment and award dated 10. 12. 90 passed by Motor Accident Claims Tribunal, Nohar (for short `the Tribunal') whereby the Tribunal awarded compensation for a sum of Rs. 1,50,000/- in favour of respondents-claimants No. 1 to 6 (hereinafter for short `the claimants') and against the appellant. Aggrieved by the judgment and award impugned, the appellant. The New India Assurance Co. Ltd. , Jodhpur (hereinafter for short `the insurer') has filed this appeal.
(2.) I have heard the learned counsel for the parties. Perused the judgment impugned and the record of the case. It was contended by the learned counsel for the appellant that the Tribunal fell in error in awarding compensation to the tune of Rs. 1,50,000/- in favour of the claimants. It was further contended that the deceased was Cleaner of truck No. RRM 3065 involved in the accident and, therefore, the compensation is required to be assessed according to the provisions of the Workmen's Compensation Act, 1923 (hereinafter for short `the Act of 1923' ). So far as the contention of the learned counsel for the appellant that the compensation is required to be assessed according to Schedule provided under the Act of 1923, I find no force in the contention raised by the learned counsel for the appellant in this regard. In Suresh Chandra vs. State of U. P. and another (1) , the Hon'ble Supreme Court held as under:- "for reducing the amount of compensation from Rs. 1,45,000/- to Rs. 85,000/-, the High Court has accepted the contention advanced on behalf of the respondent advanced on behalf of the respondents herein (appellants before it) that the claimant would have secured only Rs. 85,000/- by way compensation if he had moved the Commissioner of Workmen's Compensation. We do not think that the High Court was right in accepting that reasoning on the facts of this case when the finding is that the accident had occasioned while the roadroller was on the move and the negligence was on the part of the person who drove the roadroller belonging to the respondents. " Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act') provides option regarding claims for compensation in certain cases. Section 167 reads as under:- "section 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. " Thus, the Parliament has in its wisdom enacted Section 167 which laid down that the claimant has a right to claim compensation under either of both the Acts, namely Motor Vehicles Act and Workmen's Compensation Act, 1923. It would be open to him to claim the compensation under one of the two Acts and not under both. If the victim or his legal representative, therefore, prefers to claim the compensation under the Motor Vehicles Act, he or they, as the case may be, will be debarred from claiming the compensation under the Workmens' Compensation Act, or if he or they claim under Workmens' Compensation Act, he or they will be debarred from claiming the compensation under the Motor Vehicles Act. In the instant case, the claimants have filed the claim for compensation before Motor Accident Claims Tribunal for death of Khema Ram. Thus, the language of Sec. 167 of the Act makes it clear that it is open for the claimants either to claim the compensation before the Motor Accident Claims Tribunal under the provisions of the Motor Vehicles Act, 1988 or before the Workmen's Compensation Commissioner under the provisions of the Workmen's Compensation Act, 1923. Thus, the option lies to the claimant either to claim compensation under the provisions of the Motor Vehicles Act or under the provisions of the Workmen's Compensation Act, 1923 but not under both the Acts.
(3.) A similar view has been taken by this Court in The New India Assurance Co. Ltd. vs. Shanker Lal (2), wherein in a similar situation, this Court dismissed the appeal filed by the Insurance Company on the same point. Thus, in my considered opinion, the contention raised by the learned counsel for the appellant in this regard has no merit and is rejected. It was further contended by the learned counsel for the appellant that the compensation awarded by the Tribunal is on the higher side. I am afraid this ground is not available to the Insurance Company. It is settled law that Insurance Company can defend the cause only on the grounds provided in section 96 (2) of the Motor Vehicles Act, 1939 corresponding to Sec. 149 (2) of the Motor Vehicles Act, 1988, which reads as under:- "no sum shall be payable b an insurer under Sub-sec. (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:- (i) a condition excluding the use of the vehicle. (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle: or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. " Indisputably, none of the defences/grounds as envisaged in sub-section (2) of section 149 of the Act exists in this appeal and the challenge to quantum of compensation on the ground that it is on higher side is beyond the scope of defences provided under the aforesaid section. In this view of the matter, the appellant insurer has no right to maintain the appeal challenging the quantum of compensation. ;