The main legal point established in the judgment is that when a petition is dismissed on technical grounds, another remedy cannot be foreclosed, especially on the ground of res judicata.

SHALINI PHANSALKAR JOSHI, J.

1. A very peculiar question of law raised in this appeal is; if a petition filed under section 166 of the Motor Vehicles Act is dismissed on the ground that it was not maintainable as the accident has occurred due to the rash and negligent driving of the deceased himself, whether the subsequent petition under section 22 of the Workmen's Compensation Act, 1923 is maintainable?

2. For answering this question of law, one has to consider the facts of this appeal, which is filed under section 30 of the Employee's Compensation Act, 1923 challenging the judgment and order dated 23.07.2015 passed by the Commissioner, Workmen's Compensation, Yavatmal thereby rejecting the claim petition of the appellant herein, filed under section 22 of the said Act.

3. Brief facts of the appeal are to the effect that, appellant No. 1 is the mother, appellant No. 2 is the widow and appellant Nos. 3 to 7 are the children of deceased Mohd. Khalil, who was working as a Driver on the Truck bearing MH-29-6337 and belonging to one Sheikh Israil. Respondent Nos. 1 to 6 are the legal heirs of Sheikh Israil. The said truck was validly insured with respondent No. 7.

4. On 23.08.2002 while deceased Mohd. Khalil was proceeding on the said truck towards Yavatmal, at about 04:00 a.m. when the truck reached near Imampur village on National Highway No. 7, due to focus of the light of other vehicles coming from opposite direction, deceased could not see the road properly. As a result, he lost control over the truck and it resulted in turtling and over turning of the truck. Deceased sustained the grievous injuries in the said accident and died on the spot.

5. As the appellants lost their only source of income and suffered loss of love and affection and also loss of the income, they filed Claim Petition No. 50/2003 before the Motor Accident Claims Tribunal, Yavatmal under Section 166 of the M.V. Act 1988. Along with the said petition, the appellants also preferred an application under section 140 of the M.V. Act, which was allowed and the appellants received an amount of Rs. 50,000/- towards no fault liability. The petition u/s 166 M.V. Act however, came to be dismissed by the Tribunal vide its judgment and order dated 19.09.2007 holding that as the cause of the accident was the rash and negligent driving of the deceased himself, the liability cannot be fixed upon the owner of the truck under section 166 of the Motor Vehicles Act. It was therefore, held that the petition under section 166 of the M.V. Act, cannot be maintainable in law. Accordingly, the said petition came to be dismissed.

6. According to appellants, as they were having no alternate remedy, they preferred claim petition under section 22 of the Workmen's Compensation Act, 1923 before the Labour Court, Yavatmal. In support of their claim, they also adduced the evidence. However, the Labour Court has also, vide its impugned judgment and order dated 23.07.2015, dismissed the said claim petition, holding that, when the appellants had elected the remedy of approaching the Tribunal under section 166 of the Motor Vehicles Act, the petition under section 22 of the Employee's Compensation Act cannot be maintainable. Therefore, though it was held that the appellants are entitled to get the compensation of Rs. 3,34,580/- for the death of the deceased, it was held that, as they have already elected and attempted to pursue the remedy under section 166 of the Motor Vehicles Act, their petition is barred by res judicata and therefore, it is not maintainable. Accordingly, it came to be dismissed.

7. While challenging this judgment and order of the Labour Court, the submission of learned counsel for appellants is that the learned Trial Court has failed to appreciate properly the legal issues involved in the case. It is urged that the claim petition filed by the appellants before the Tribunal under section 166 of the M.V. Act came to be dismissed on the sole ground that it is not maintainable