Vineet Kothari, J. - (1.) THIS appeal has been filed by the appellant insurance company under section 30 of the Workmen's Compensation Act, 1923 aggrieved by the award of the Workmen's Compensation Commissioner. Jodhpur dated 31.3.2008 in Claim Case No. 11 of 2006.
(2.) THE facts in brief giving rise to this appeal are that the husband of Bidami Bai, respondent No. 1, namely, Pappu Ram, while driving truck No. RJ 19-1 G 3189 coming from Mumbai to Jodhpur in the night between 29.7.2003 and 30.7.2003 collided with trailer No. HR 55-0707 and in the said accident Pappu Ram lost his life. THE wife of the said deceased Pappu Ram, namely, Bidami Bai and her children Mamta, Rekha and Munna initially filed Claim Case No. 103 of 2005 on 16.5.2005 before Motor Accidents Claims Tribunal, Jodhpur and the said claim was awarded on 30.11.2005 and a sum of Rs. 4,60,333 was paid to the claimants towards the said death, in January 2006. THEreafter some where in June 2006, it appears that the same claimants filed present claim before the Workmen's Compensation Commisioner against the employer and owner of the truck being driven on the date of accident by Pappu Ram. namely, truck No. RJ 19-1 G 3189 impleading the owner Gopi Ram as the employer-respondent and the appellant New India Assurance Co. Ltd. as respondent. In M.A.C.T. Case No. 103 of 2005. these claimants had impleaded tortfeasor, namely, owner Bhim Sen, driver and insurer, the same insurance company, namely, New India Assurance Co. Ltd. of other offending vehicle, namely trailer No. HR 55-0707, in which they were awarded a compensation of Rs. 4,60,333. The Workmen's Compensation Commissioner decided Claim Case No. 11 of 2006 and awarded a sum of Rs. 3,46,368 and interest on the said compensation of Rs. 1.93,866 by the impugned award dated 31.3.2008. The Workmen's Compensation Commissioner in the award dated 31.3.2008 noticed that there was delay in filing the claim petition of about 3 years, since the accident took place on 29.7.2003 and the claim petition was filed in June 2006, however, the said delay deserves to be condoned as the employer, respondent No. 1. Gopi Ram, had assured the claimant that let first M.A.C.T. claim be decided and thereafter the claim under the Workmen's Compensation Act as may be decided by the competent authority would be paid by him. The Workmen's Compensation Commissioner also held that plea of limitation would not come in the way of the claimants and the claim should be decided on merits. Workmen's Compensation Commissioner also relying upon the decision of Gujarat High Court in the case of Nasimbanu v. Ramjibhai Bachubhai Ahir. 2005 ACJ 1816 (Gujarat), held that notwithstanding the award of the claim under the provisions of Motor Vehicles Act against the tortfeasor, the claim against the employer under the Workmen's Compensation Act. 1923 could be awarded in favour of claimants. Being aggrieved by the said award, the insurance company has preferred this appeal before this court. Mr. D.S. Nimla, the learned counsel appearing for insurance company submitted that in view of bar under section 167 of the Motor Vehicles Act, 1988 and also section 3 (5) of Workmen's Compensation Act, the claimants-legal representatives of the deceased Pappu Ram could not claim double benefit under both the enactments and, therefore, the subsequent claim under the Workmen's Compensation Act, 1923 was liable to be rejected and the appellant insurance company cannot be made to pay the said compensation. He also urged that claim itself was time-barred having been filed after a delay of 3 years and also there was contributory negligence on the part of the driver Pappu Ram himself and thus, the claims under the M.A.C.T. case having already been paid by the same insurance company, the award under the Workmen's Compensation Act, 1923 deserves to be set aside. He relied upon several decisions of the Hon'ble Supreme Court and various other High Courts and reference to which would be made hereinafter. On the other hand, Mr. Anil Bhan- dari and Mr. Sunil Bhandari, the learned counsel appearing on behalf of the claimants, vehemently submitted that doctrine of election provided for in section 167 of the Motor Vehicles Act, 1988, does not apply where the claimants have right to proceed against the employer under the Workmen's Compensation Act and against the tortfeasor, a different person, under the provisions of Motor Vehicles Act. They submitted that bar is only against availing two remedies against the same employer under both the enactments, namely, Workmen's Compensation Act, 1923 and Motor Vehicles Act, 1988. They also urged that the claim filed before the Workmen's Compensation Commissioner was not delayed and the delay, if any, has already been condoned by the Workmen's Compensation Commissioner and also there was no contributory negligence on the part of the said deceased Pappu Ram and obviously since the respondent parties in both the claim petitions were different even though the insurance company was common, the insurance company cannot be absolved of its liability to pay the compensation under two separate insurance contracts, one as insurer of the tortfeasor for the vehicle No. HR 55-0707 and other as insurer of truck No. RJ 19-1 G 3189 as employer covering risk of the workmen under the Workmen's Compensation Act, 1923. He also drew the attention of the court towards proviso to section 147 of the Motor Vehicles Act in which liability arising under the provisions of Workmen's Compensation Act, 1923 in respect of death or bodily injury to such employee engaged in driving of the vehicle could be covered under the insurance policy. Mr. Anil Bhandari also relied upon several decisions of the Supreme Court and other High Courts including this court, reference to which is being made hereinafter. Spectrum of case-laws: Let this court deal with case-laws cited at the Bar on both sides in reverse order date-wise, namely, the latest cases being discussed first. Case-laws relied upon by the insurance company: (i) Bhakra Beas Management Board v. Kanta Aggarwal, 2008 ACJ 2372 (SC).
(3.) WHILE dealing with the case of compensation under the provisions of Motor Vehicles Act, the Hon'ble Supreme Court found that the widow of the deceased had been provided compassionate appointment by the same employer who was drawing almost same salary as the deceased was and in order to arrive at just and fair compensation, the Hon'ble Apex Court reduced the amount of compensation arrived at by the M.A.C.T. and upheld by the High Court of Rs. 8,48,106 to Rs. 5,00,000 in full and final settlement of claim. WHILE discussing the principles relating to assessment of damages under the Fatal Accidents Act, the court observed that any benefit accruing to the dependants by reason of the relevant death must be taken into account and under those Acts the balance of loss and gain to a dependant by the death must be ascertained. Relying upon the earlier decision of the Supreme Court in the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1958-65 ACJ 179 (SC) and Davies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601, in para 7 of the judgment and judgment of the Supreme Court in the case of Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC), in para 9 of the judgment, Hon'ble Apex Court held as under: "(7) In United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC), it was, inter alia, observed as follows: '(21) Mr. Soli J. Sorabjee submitted that while assessing the amount of compensation, the benefits which have accrued to the claimants by reason of death must also be taken into account. A kind of balancing of the losses and the gains or the benefit by reason of death would be necessary. In support of the above contention, he has referred to the decision in Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1958-65 ACJ 179 (SC). It is a decision by a three-Judge Bench of this court and at page 184, the observations made by House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601, has been quoted which reads as follows: "The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately". (9) In Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC), it was held as follows: '(34) So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage' which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt, that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased, etc. This would obliterate both, all the possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage that is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under section 110 is, as the section states: ...for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to...' (35) Thus, it would not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of section 95. Under it, the liability of the insurer is excluded in respect of the injury or death, arising out of (sic) and in the course of employment of an employee. (36) This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's savings, wealth, etc., either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain', only on account of one's accidental death. This, of course, is a 'pecuniary' gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no correlation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any correlation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or, any provision of law." The judgment in the case of Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC), decided by the Supreme Court arose and question raised before the court was as to whether the compensation received from Life Insurance Corporation upon the death of the insured arising out of accident could be deducted/set off against the claim awarded under the provisions of Motor Vehicles Act. The Hon'ble Apex Court answered the question in negative and held that the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. The relevant portion has already been quoted above and the conclusion drawn by the Apex Court in para 37 of the judgment is reproduced hereunder for ready reference: "(37) Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured and is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy amount is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by claimant not on account of any accidental death, but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to he termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual." (ii) National Insurance Co. Ltd. v. Mas- tan, 2006 ACJ 528 (SC). The question being decided in the said case was as to whether the insurer while defending the action initiated under the Workmen's Compensation Act, 1923, is precluded from raising any defence as envisaged under sub-section (2) of section 149 of the Motor Vehicles Act, 1988. The Apex Court observed in paras 22 and 23 about sections 167 and 168 of the Act and doctrine of election in the following manner: "(22) Section 167 of the 1988 Act statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, 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. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act. (23) The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case." ;