B. SESHASAYANA REDDY, J.

( 1 ) THIS Civil Miscellaneous appeal is directed against the order dated 23-3-2002 passed in W. C. No. 41 of 2000 on the file of Commissioner for Workmen s compensation and Assistant Commissioner of Labour, Hyderabad II, whereby the learned commissioner for Workmen s Compensation dismissed the application filed by the appellant/applicant claiming compensation for the death of her husband S. Mallesh in the road accident occurred on 27. 3. 1998.

( 2 ) THE appellant is the applicant before the Commissioner for Workmen s compensation-cum-Assistant Commissioner of Labour, Hyderabad-H. She filed the application under Rule 20 of A. P. Workmen s compensation Act, 1923 claiming compensation of Rs. 2. 50 lakhs for the death of her husband 5. Mallesh. It is the case of the appellant/ applicant that her husband S. Mallesh was a driver of the lorry bearing No. ADT 6676 owned by R-1 and insured with R-2; that on 27. 3. 1998 the lorry involved in the accident and thereby her husband sustained injuries and died. It is her further case that her husband was earning Rs. 3,000/- per month and was aged 28 years as on the date of the accident. She claimed compensation of Rs. 2. 50 lakhs against R-l and R-2 who are the owner and the insurer of the vehicle respectively. Learned Commissioner dismissed the application of the appellant/ applicant on the ground that the mother of the deceased (R-3 herein) has filed application before the motor Vehicle Accident Claims Tribunal, nalgonda under Section 140 of M. V. Act claiming compensation of Rs. 50,000/- under no fault liability. There seems to be no dispute that R-3 who is the mother of the deceased filed application before the Motor vehicle Accident Claims Tribunal, Nalgonda claiming compensation of Rs. 50,000/- under no fault liability and the learned Tribunal allowed the application and granted compensation of Rs. 50,000/ -.

( 3 ) THE short question mooted in this appeal is "can a claim be made for compensation under the Workmen s compensation Act, 1923 (for short WC Act) after one of the legal heirs of the deceased invoked the jurisdiction under Section 140 of M. V. Act, 1988". The appellant/applicant was not a party to the proceedings before the Motor Vehicle Accident Claims Tribunal, nalgonda. R-3 herein who is the mother of the deceased filed petition before the Motor vehicle Accidents Claims Tribunal claiming compensation under no fault liability. It is an undisputed fact that the accident was due to the negligent driving of the deceased himself.

( 4 ) LEARNED Counsel for the appellant/ applicant contends that the legal heirs of the deceased in the circumstances of the case should claim compensation under W. C. Act and not under M. V. Act. He further contends that the claim made by the mother of the deceased before the Tribunal is not a claim recognizable under law and therefore there is no bar in making a claim by the appellant/ applicant who is the wife of the deceased under W. C. Act. He placed reliance on the following decisions in support of his contentions: (1) D. Jayamma v. S. Govindaswamy, 1982 ACJ 467. (2) Arun Kumar Rastogi v. Chandra kumari, 1987 ACJ 149 (3) Neelabai Mahadeo Salunkhe v. Shamrao Tatoba Pawar, 1995 ACJ 36 (4) New India Assurance Company limited v. Pennamma Kurien, 1995 acj 760

( 5 ) UNITED India Insurance Company limited v. Kore Laxmi, 2003 ACJ 203 in the first cited decision the Karnataka high Court held that to make a claim under the provisions of Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor vehicles Act is not maintainable. It is further held that when the accident has occurred due to the rash and negligent driving of the lorry by the deceased himself, the petition for compensation

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