Legal representatives are not entitled to compensation under the Motor Vehicles Act, 1988 if the death was a result of the driver's negligent act.

Vijay Kumar Shrivastava, J.

1. This is an appeal filed by the appellants/ claimants under Section 173 of the Motor Vehicles Act. 1988 (henceforth, "the Act, 1988") against the award dated 23-12-1995 passed by the Motor Accident Claims Tribunal, Raigarh, (henceforth, "the Tribunal") in Claim Case No. 10 of 1993, whereby the application filed by the claimants under Section 166 of the Act, 1988 has been dismissed.

2. Facts briefly stated are that Gopal Prasad Chandra (since deceased) was an employee of respondent No. 1. He was employed by respondent No. 1 to the post of driver of Truck No. MP-26-E-0042 (hereinforth, "the vehicle"). The vehicle was owned by respondent No. 1 and was insured with respondent No. 2. On 1-1-1993 deceased was driving the ill-fated vehicle, the vehicle fell into a field. When the deceased was ploughing the wet soil, he was caught up underneath the tractor and died. Both the appellants who are father and mother in the capacity of legal representatives filed an application under Section 166 of the Act, 1988 for award of compensation against the driver, owner and insurer of the vehicle. Respondent No. 1 contested the claim. Respondent No. 2 Insurance Company, however contested the claim on the ground that the deceased died during the course of employment, therefore, claim towards his death is maintainable in accordance with Workmen's Compensation Act, 1923 and the Tribunal has no jurisdiction to take cognizance of it.

3. Appellants adduced evidence in support of their case. Learned Tribunal after meticulous appreciation of evidence recorded finding of fact that Gopal Prasad Chandra, driver of the vehicle himself was negligent far the accident and, therefore, neither truck owner nor Insurance Company is liable to pay any compensation to the appellants and accordingly vide impugned award, dismissed the claim petition.

4. Learned Counsel for the appellants contended that deceased during the course of employment met with an accident and died, therefore, appellants have right to opt the forum for award of compensation, and even if deceased himself was negligent, father and mother cannot be deprived of from receiving compensation through Tribunal in accordance with the provisions of the Act, 1988. Section 167 of the Act, 1988 reads as below:

167 Opinion regarding claims for compensation in certain cases - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of 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 to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. From bare reading of the above provision, it is evident that the appellants are entitled for compensation in accordance with the Workmen's Compensation Act, 1923 (for short "the Act, 1923") and in accordance with the provisions of the Act, 1988, they have option to choose either of them.

5. Sections 165(1) and 166(1) of the Act, 1988 read as below:

165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

Explanation.- For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicle" includes claims for compensation under Section 140 (and Section 163A).

166(1) Application for compensation.- (1) An application for compensation arisin