An employee receiving compensation under Chapter X of the M.V. Act retains the option to seek compensation under the 1923 Act or the M.V. Act.

JUDGMENT

1. The appellant takes exception to the order passed by the learned Commissioner for Workmen's Compensation and Judge Labour Court at Latur in Application (WCA) No. 4 of 98 dtd. 30/7/2001.

2. The facts giving rise to the Appeal were that the appellant was a driver with respondent no.1. Respondent No. 1 owned a truck bearing no. Mh-04-C-6933 and was insured with respondent no.2. He met with a vehicular accident on 13/4/1997. He sustained the injury to his femur and toe of the left leg. He was hospitalised for around twenty days. He sustained 35% physical disability. He was employed with respondent no.2 on the day of the accident. He could not work as before the accident. He served the notices to both respondents. However, none of the respondents has paid him the compensation. Hence, he filed an application under Sec. 3 and 22 of the Workmen's Compensation Act 1923 (now Employees Compensation Act 1923) ("1923 Act", for short).

3. The learned Commissioner rejected his Claim for the reason that the appellant had already approached the Motor Accident Claims Tribunal and had received the compensation under sec. 140 of the Motor Vehicles Act 1988; ("M.V.Act", for short) therefore, the Claim is barred under sec. 167 of the M.V. Act. Hence, this appeal.

4. The respondents have neither denied the accident nor the relationship with the appellant. Respondent no.2/insurer objected that the application is bad for no notice under sec. 10 of the 1923 Act. However, the learned Commissioner has discarded the said objection and no appeal or cross-appeal is preferred against the said finding. It has also objected that the application is hit by sec. 167 of the M.V. Act.

5. Heard the learned counsel Shri. B.R. Kedar for the appellant and the learned Counsel Shri S.G. Chapalgaonkar for respondent no.2 at length. None appeared for respondent no.1.

6. Learned counsel for appellant Shri. Kedar would argue that the learned Commissioner has misread and misinterpreted sec. 167 of the M.V. Act. An application under Sec. 140 of M.V. Act has been excepted from the bar envisaged in Sec. 169 of M.V. Act and an application for compensation either under the Workmen's Compensation Act or M.V. Act, is maintainable. He would rely on the case of Maroti Shrawan Manghate vs Smt. Rita Y. Sapra and Anr. [2018 (1) All MR. 700].

7. Per contra, learned counsel Shri. Chapalgaonkar for respondent no.2 would argue that after the impugned order, the appellant had filed another application under sec. 166 of M.V. Act. The appellant had made the incorrect statement before this court that the said application had been withdrawn. However, the copy of the order passed in the said application reveals that the said application was dismissed for default. The appellant was exercising the remedies simultaneously by suppressing the material facts from the court. If the said application had been withdrawn, the situation would be different. But the said application was dismissed for default. Therefore, the application cannot be considered. There is no substance in the appeal. If the court concludes that the appeal deserved to be allowed, the matter should be remitted to the learned Commissioner, as the application has been decided without answering all the issues framed.

8. A short point that arises for consideration is, Whether the compensation granted under chapter X of the M.V. act forfeits the right of the employee to claim the compensation under sec. 3 of the 1923 Act as provided under Sec. 167 of the M.V. Act ?

9. Before adverting to the issue involved in the appeal, it would rather be appropriate to reproduce Sec. 167 of the M.V.Act, which reads thus;

"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 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 t