The claimants' entitlement to compensation under Section 163A of the Motor Vehicles Act, 1988 was established based on the nexus between the cause of death and the accident, as well as the nature of employment.

JUDGMENT :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the present appellant- United India Insurance Company Limited, being aggrieved and dissatisfied with the judgment and award dated 15.01.2013 passed by the Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claim Petition No. 472 of 2009, by which the Tribunal has awarded compensation of Rs.3,33,500/- with 8% per annum interest to the claimants from the date of filing of application, by holding Opponent Nos.1 to 3 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 04.04.2003, One Chhaganbhai Bijalbhai has expired. The present applicants are the legal heirs of the deceased-Chhaganbhai Bijalbhai. The said accident had occurred when deceased-Chhaganbhai Bijalbhai was serving as a cleaner in the Truck bearing registration No.GJ-3-U-5519. When Truck reached near Kodwa village, Ahmedabad, at that point of time, deceased-Chhaganbhai Bijalbhai felt chest pain and due to heart attack, he died in the vehicle itself. At the time of death, the deceased- Chhaganbhai Bijalbhai was aged about 40 years old and was earning Rs.40,000/- by doing job as a cleaner in said Truck and also as a labourer. Therefore, the deceased was died in harness during the use of vehicle-Truck as a cleaner. Thereafter, the application is field by the legal heirs of the deceased to get compensation under Section 163A of the Motor Vehicles Act, 1988.

2.2 The Tribunal has issued notices to all the opponents. Opponent No.3-Insurance Company has filed its written statement at Exh.15 and submitted that there is no nexus between cause of death and accident. It is the say of the insurance company in the written statement that the death of the deceased was not caused due to workload, but due to natural cause. The claimant has also filed a claim petition before the Workmen’s Compensation Commissioner vide case No.56 of 2003, where they had failed to prove the accident. Therefore, the claim petition was filed under Section 163A of the Motor Vehicles Act, 1988. The insurance company has prayed that claim petition be dismissed.

2.3 The claimant has deposed at Exh.23 and has also produced the documentary evidence at Exh.16, by which copy of inquest Panchnama, copy of First Information Report, copy of cause of death, copy of P.M. report, copy of driving licence and copy of R.C. book, copy of insurance police and also statement of driver recorded before police is also produced on record at Exh.26 to 34, in the claim petition.

2.4 The Tribunal has proceeded and decided the claim petition by holding that the death of the cleaner occurred during the use of motor vehicle and during the course of employment as he was on duty and further, there is nexus between death and accident. Therefore, the amount of compensation Rs.3,33,500/- with 8% per annum interest is awarded by directing Opponent Nos. 1 to 3 liable, jointly and severally. Hence, this appeal by the Insurance Company.

3.1 Learned advocate Mr. Vibhuti Nanavati for the appellant-United India Insurance Company Limited has submitted that the present appeal is filed as earlier, the opponents have filed the Workmen Compensation Application being W.C. (Fatal) Case No.56 of 2003 before the concerned Workmen’s Compensation Commissioner, which was subsequently withdrawn by the claimants on 22.12.2009.

3.2 Further, he has submitted that on 21.03.2009, the claimants have therefore, filed the claim petition under Section 163A of the Motor Vehicles Act, 1988. He has submitted that, in view of the Section 167 of the Motor Vehicles Act, 1988, the claimants can opt the claim petition either under the Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1988. Once opted under a claim under the provisions of the Workmen’s Compensation Act, 1923, the claimants cannot entitled to file the claim petition under the provisions of the Motor Vehicles Act, 1988.

3.3 Further, he has submitted that there is no n