( 1 ) TWO appeals (First Appeal No. 407 of 1998 - Nasimbanu, widow of Sirajuddin amruddin Kazi and others Ramjibhai bachubhai Ahir and others, for enhancement of compensation and First Appeal No. 3656 of 1998 - The New India Assurance Company limited V/s. Nasimbanu, widow of Sirajuddin amruddin Kazi and others for setting aside the award dated 30. 8. 1997 passed by the mact, Kheda at Nadiad - MACP No. 372/88) are proposed to be disposed of by this judgment.

( 2 ) SHORTLY stated, Sirajuddin amruddin Kazi (deceased) was driver of tanker bearing Registration No. GTB-6374 of kavina Transport Company owned by ramjibhai Hirabhai Ahir (respondent-2 in FA 407/98) and insured with the New India assurance Company Limited. Accident took place on 23. 12. 1987 at Boriyavi village when deceased was going from Abmedabad to vadodara and the offending vehicle Truck bearing Registration tlo. GQY-4478, driven by ramjibhai Bachubhai Ahir (respondent 1 in fa 407/08) clashed against the tanker driven by Sirajuddin Amruddin Kazi. As a result of this accident, deceased (33) died leaving behind the claimants Nasimbanu (widow) and two minor children Sadiq Siraiuddin Kazi and shabana Sirajuddin Kazi. Claim for compensation of Rs. 3,50,000/- with interest is made. Allegation is that the offending vehicle was driven rashly and negligently, otherwise, accident could not have taken place. Deceased was the sole bread winner for the family and after his death, family is facing starvation.

( 3 ) OWNER of the offending vehicle did not file written statement nor appeared before the Claims Tribunal. Contesting opponent is Insurance Company with which the offending truck was insured. This opponent has not admitted facts, therefore, denied the claim, Consequently, the Claims tribunal framed issues on 23. 6. 1996, sought evidence and decided that allegations were sustainable. Accident had taken place in which deceased died leaving behind the claimants. They have been held entitled to compensation of Rs. 2,12,000/- carrying interest at the rate of 12% p. a. with effect from 7. 2. 1997. Against this award, both the parties have filed appeals. Claimants seeking more compensation and Insurance Company praying for setting aside the award,

( 4 ) HEARD learned counsel for the parties, record perused. First we take First appeal No. 3656 of 1998 filed by the New india Assurance Company Limited Ms. Lilu bhaya. learned counsel for the appellant-New india Assurance Company Limited, contends that claimants filed petition under the workmens Compensation Act. 1923, claiming compensation for the death of deceased. They appeared and sought compensation of Rs. 80,000/ -. Therefore, initiation of application under Section 110a motor Vehicles Act. 1939 is not maintainable under Section 110aa thereof and Section 3, sub-section 5 of the Workmens compensation Act, 1923. She also submits that in case this Court holds that application is maintainable, then amount of Rs. 80,000/- paid under the Workmens Compensation act, 1923, be deducted from the amount, of compensation awarded by the Claims tribunal under the Motor Vehicles Act, 1939. Further submission is that claimants committed delay in prosecuting the petition, therefore, interest should not be made payable by the Insurance Company. Shri M. C. Bhatt, learned counsel For the claimants, submits that appeal by insurance Company is not maintainable because the appellant has challenged the quantum of compensation. Mr. Lilu Bhaya submits that there is no challenge to quantum, challenge is to jurisdiction of the claims Tribunal to entertain the petition after the claim has been decided by the workmens Compensation Commissioner, therefore, the appeal is maintainable. Relevant prov/sions of the WC Act, 1923 and the MV Act, 1939 which have been referred to and relied upon by the learned advocates while making their submissions are reproduced as under:"3 (5) Nothing herein contained shall be deemed to confer any right to compe