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IN THE HIGH COURT OF BOMBAY
Patel H.D. Patankar P.S., JJ.
Shantabai Parshuram Mule others .... Appellants.
Versus
Sharda Prasadsingh others.... Respondents.
First Appeal No. 839 of 1984, decided on 20-11-1991.
Advocates appeared :
S.L. Kapse, for appellants.
A.A. Rizvi, for respondent No. 1.
A.R. Kudroli, for respondent No. 3.
In order to institute a claim under sub-Section (5) of Section 3 of the Workmens Compensation Act, it is required and the phraseology of that clause so indicates that the workmen must have initiated a claim for compensation in respect of the injury before the Commissioner. The work initiated used in section makes it imperative that a litigant who may be said to be dominus litis must affirmatively go before the authority constituted under the Workmens Compensation Act and say that be wanted to avail of his right to compensation as provided by the Workmens Compensation Act, the liability for which is created by Section 3 of that Act. Even sub-section (5) of Section 3 of the Workmens Compensation Act gives an option between enforcing right to compensation under the Workmens Compensation Act against the employer and claiming damages in a Court of law or special statute incorporating the common law rights. To the extent of the choice of forum both the provisions, namely, Section 110-AA of the Motor Vehicles Act and Section 3 (5) of the Work-mens Compensation Act can be said to be similar though the language used is different.
Mere filing of an application by the appellants for distribution of the amount deposited by the employer before the authority constituted under the provisions of the Workmens Compensation Act can never be treated as a claim Instituted within the meaning of sub-section (5) of Section 3 of that Act. As discussed above, a claim is required to be made under Section 10 and there is nothing to suggest that any claim was made by the appellants as contemplated by that section. All that they did was that to file an application which they were called upon to do so. It may be relevant to repeat here that the application was filed on 18-11-1984 by which time the appellants bad already Chosen the forum for claiming compensation by filing an application before the Motor Vehicle Accident Claim Tribunal the appellants never called upon the employer to deposit the amount. It was a voluntary act of the employer. It is difficult for this Court to accept that the appellants bad instituted a claim as such within the meaning of sub-section (5) of Section 3 of the Workmens Compensation Act and if that is the correct view of the matter, then it follows that there cannot be a bar of sub-section (5) of Section 3 of the Workmens Compensation Act.
2. The deceased Parshuram met with an accident on 15-3-1978 while he was driving car No. MTY 3206 as a driver of the State Transport Corporation. The car was on its way to Ratnagiri. The said car crossed Mahad and while proceeding to its destination on Bombay Goa Road a motor tanker No. MNP 7952 belonging to the respondent No. 1 and driven by the respondent No. 2 in course of his service being in employment of respondent No. 1, coming from opposite direction dashed against the car No. MTY 3806 with the result that the deceased Parshuram as well as another occupant of the car Dinanath Shirodkar received multiple injuries and both died on the spot. The third occupant of the car Shri Pradip Sawant was seriously injured. There is no dispute that Parshuram Tukaram Mule died having received personal injuries caused by accident arising out of and in the course of employment.
3. The appellants filed an application on 8-9-1978 seeking compensation amounting to Rupees one lakh before the Motor Accident Claims Tribunal. The respondents resisted the claim on several grounds. Before the matter could be taken up for evidence an application came to be filed by the respondents that the appellants received compensation of Rs. 23,100/- from the employer of the deceased Parshuram, namely, the Maharashtra State Road Transport Corporation and, hence they are debarred from preferring this claim under section 110-AA of the Motor Vehicles Act. On a request a preliminary issue was framed by the learned Member of the Motor Accident Claims Tribunal on the maintainability of the application. The appellants in their reply accepted the fact of having received the compensation amount from the Court of Commissioner for Workmen's Compensation, Thane, though they denied its effect. It seems that after hearing the parties the learned Member of the Motor Accident Claims Tribunal held that the application was barred in view of the compensation awarded to the applicants, through the Court of Commissioner of Workmen's Compensation, Thane. Accordingly the application came to be dismissed. It is this finding which is under challenge in this appeal.
4. After hearing the rival contentions of the parties only one point falls for determination and that point is, whether the claim for compensation filed before the Motor Accident Claims Tribunal is tenable in the circumstance that the appellants have accepted the amount of Rs. 23,100/- deposited by the employer the Maharashtra State Road Transport Corporation with the Commissioner of Workmen's Compensation of under section 8 of the Workmen's Compensation Act, 1923.
5. Before the question could be answered, some more facts relevant for the purpose needs to be narrated. The deceased Parshuram having suffered injuries caused by accident arising out of and in the course of employment, his employer was also duty bound to comply with the relevant provisions of the Workmen's Compensation Act. In terms of section 8 of the said Act the employer of the deceased Parshuram deposited the amount due with the Commissioner of Workmen's Compensation. Upon deposit of the amount, no option was left with the Commissioner of Workmen's Compensation but to issue notices to the dependants whose names were disclosed by the employer while depositing the amount. The appellants appeared before the Commissioner of Workmen's Compensation and filed an application dated 18-11-1978 stating that they are dependants of the deceased Parshuram amongst whom the compensation may be distributed. The Commissioner of Workmen's Compensation recorded the statement of the first appellant and vide judgment dated 20-11-1978 ordered to distribute the compensation amongst the dependants in the manner set out therein. It is under these
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