JUDGMENT :

1. The judgment and order dated 23.07.2013 passed by the Commissioner for Workman Compensation, Amreli in W.C. (Fatal) No.3/2011 is challenged by the appellants in this appeal under Section 13 of the Workman Compensation Act, 1923 (‘W.C. Act’ for short).

2. Facts are not many and lie in a narrow compass.

3. Shabir, who was the son of the appellants was working as a driver on Maruti Van bearing registration No.GJ-1-HA-1488 of the ownership of respondent No.1. The deceased was going to Chitalia from Morbi on 24.11.2004 at around 8.30 p.m. the Maruti van met with an accident with truck being registration No. GJ-2-U-8357. The deceased – Shabir suffered serious injury to which he succumbed. An FIR in respect of this accident came to be registered with Babra Police Station being C.R. No.87/2004. The applicants being parents of the deceased filed W.C. (Fatal) Application No.3/2011 before the Commissioner for Workman Compensation, Amreli for compensation under Section 4A of W.C. Act against the respondents being employer owner of the vehicle and the insurer of the vehicle respectively.

4. The respondents entered their appearance upon service of process of the application. They resisted the claim application by filing reply at Exhibit - 20-24 respectively.

5. It was the contention of respondent No.1 that the deceased – Shabir had taken maruti van on the pretext of going to hospital. It was his further contention that the appellants herein had file one claim being MACP No.13 of 2005 in Accident Claims Tribunal at Amreli in which they have received the compensation in respect of this vary accident. It was, therefore, contended that the appellants herein cannot claim compensation in respect of the same accident from two fora. Alternatively, it was contended that if the appellants herein are held entitled to receive compensation, the respondent No.2 herein Insurance Company may be directed to pay the compensation as the insurer maruti van.

6. It was the contention of respondent No.2 – Insurance Company in its reply that there was no relationship of employer and workman between the deceased and respondent No.1 herein. It was further contended that no notice within 24 hours of the occurrence of the accident was served by the respondent No.1 herein. Respondent No.2 is not liable to pay the compensation. It was the respondent No.2 herein also contended that the appellants herein cannot claim compensation from two forum in respect of the same accident. It was, therefore, urged that the claim application may be dismissed.

7. I have heard Ms. Nasrin N. Shaikh, learned advocate for the appellant, Mr. Mihir Pathak, learned advocate for the respondent No1 and Mr. K.V. Gadia, learned advocate for the respondent No.2 - Insurance Company.

8. Ms. Shaikh, learned advocate for the appellants submits that MACP was filed against the another driver and Insurance Company of the Truck which was involved in the accident. It is her submission that in the said MACP, the respondents were not parties. She would further submits that the respondent No.1 being the employer had not paid any compensation to the appellants for the death of their son during the course of employment. Relying upon the decision of the Supreme Court in the case of Ramchandra v. Regional Manager, United India Insurance Company Limited reported in AIR 2013 SC 2561 and in the case of Oriental Insurance Company Limited v. Dyamavva reported in AIR 2013 SC 1853. She submits that the appellants being parents of the deceased workman can claim compensation under both Workman Compensation Act as well as Motor Vehicles Act. She, therefore, urges that the appeal may be allowed and may be remitted to the Commissioner for fresh consideration on merit.

9. Mr. Gadia, learned advocate for the Insurance Company submits that the appellants had opted to claim compensation under the provisions of M.V. Act in first point of time, and therefore, in view of the bar contend under Section 167 of the M.V. Act, the ap