Point of law : Reference Court is required to decide the respective References afresh by permitting the parties including the claimants to lead their evidence and thereafter to determine the prayer for enhancement in the compensation on its own merits and on the basis of the evidence which may be lead.

ORDER :

1. In this appeal under Section 30 of the Employees Compensation Act is preferred by the appellant to assail the judgment and order dated 3.06.2021 passed by Ex- Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad in Workman Compensation (Fatal) Case No.12 of 2010.

2. By order dated 29.07.2021 notice for final disposal is issued and Mr. P.P. Jhaveri, learned advocate has entered appearance on behalf of the respondent workman.

3. The brief facts giving rise to the present appeal as could be gathered from memo of appeal and connected material are that the deceased Hiteshbhai was working as a Peon with the appellant from 01.04.2003 and during the course of service, he had expired in the vehicular accident and therefore, the respondents claimed compensation before the Ex-Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad. The appellant by filing reply denied the claim and after duty hours, the deceased had died and therefore, the appellant is not liable to pay the amount as claimed in the case. Learned Ex-Officio Commissioner for Employee’s Compensation Act & Judge (S.D.), Labour Court, Ahmedabad, without considering the settled provisions of law, passed impugned order and therefore, present Appeal.

4. I have heard Mr. Yogen N. Pandya, learned advocate for the appellant and Ms. Krupali Bhatt, learned advocate for Mr. P.P. Jhaveri, learned advocate for respondent.

5. Mr. Pandya, learned advocate submits that the respondent had filed two proceedings namely one under Section 166 of Motor Vehicles Act before the MACT and other proceedings before the Commissioner for Workman Compensation for claiming compensation in respect of death of deceased workman. Relying upon the decision of this Court dated 23.06.2017 passed in First Appeal No.1998 of 2017, he submits that once an option under Section 167 of M.V. Act is exercised by the workman and compensation is claimed under the said act, he cannot maintain another claim petition under Section 10 of Workman Compensation Act. He, therefore, submits that the impugned judgment and order may be quashed and set aside and the amount deposited by the appellant before the Commissioner may be refunded to the appellant. 6. Ms. Krupali Bhatt, learned advocate for the respondent could not dispute the legal position of law as enunciated by this Court in the First Appeal No.1998 of 2017.

7. It is not in dispute that two proceedings namely one under the M.V. Act and the other under the Workman Compensation Act were taken out by the respondent in respect of the death of workman in a vehicular accident. It is, therefore, very clear that the present appeal is clearly covered by the decision of this Court in the case of Madinabibi Dasotbhai Sheikh v. Jagdishchandra Ramanlal Kachiya (supra). It would not be out of place to reproduce the entire judgment which reads as under:-

“1. Heard Mr.P.C.Chaudhary, learned counsel for the appellants, Ms.Maitri Patel, learned counsel for defendant No.1 and Ms.Niyati Juthani, learned counsel for defendant No.2.

2. This appeal is directed against the judgment and award dated 11.06.2015 passed by learned Labour Court, Nadiad, in Workmen Case (Fatal) No.6/2008, whereby learned Labour Court was pleased to dismiss the claim application filed by the appellants.

3. Learned counsel for the parties have provided copies of the documents filed and evidence led before the learned Labour Court and with consent of the parties, the appeal is extensively heard finally.

4. The following facts emerge from the record of the appeal.

4.1 That, brother of the appellants viz. Deceased Abdul Rashid Dasotbhai Shaikh was in employment with defendant No.1 herein and was working as driver of Eicher Truck bearing No.GJ-7-X-7415, which is of the ownership of defendant No.1. It appears from the record that, on 14.04.1997, brother of the appellants was driving said truck and was passing through Ahmedabad – Mumbai highway, at th