JUDGMENT :

MALASRI NANDI, J.

1. This appeal is directed against the judgment and award dated 29.7.2015 passed by learned Member MACT Cachar, Silchar in favour of the appellant-claimant in MAC Case No. 205/2012 challenging the method adopted by the Tribunal for computation of compensation under Workmen's Compensation Act though the claimant has filed her claim case under Motor Vehicles Act.

2. The only point raised by learned counsel for the appellant as well as respondent-Insurance Company is that when the claim of the appellant-claimant is under Motor Vehicles Act, 1988, the Tribunal should not have computed compensation under Workmen's Compensation Act, 1923 and the option is open to the claimant only under section 167 of the Motor Vehicles Act and not to the discretion of the Tribunal to adopt under which of the Act compensation be computed.

3. In the case in hand, the accident, involvement of Oil Tanker bearing Reg. No. AS-01/N-2665 and death of the deceased Ram Parvesh Mahato are not in dispute. The only issue to be discussed whether the legal representatives of the deceased lay claim under section 166 of M.V. Act, i.e., under fault liability principle and whether the Tribunal under the M.V. Act was empowered to adjudicate such claim.

4. Before proceeding with the discussion it is felt necessary to narrate what section 167 of the M.V. Act describes:

Section 167 of the Motor Vehicles Act, 1988 (‘the Act’) provides option regarding claims for compensation in certain cases. Section 167 reads as under:-

“167. Option 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 entitledto compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.”

5. The appellant has preferred the claim case under section 166 of the Motor Vehicles Act, 1988 for death of her husband Ram Parvesh Mahato stating, inter alia, that on 15.7.2010 husband of the claimant was proceeding Saiha from Silchar by travelling in the aforesaid Oil Tanker in course of his employment and when the tanker reached at Khamrang village of Mizoram, it fell down into a deep gorge. In consequence thereof, the husband of the deceased died on the spot.

6. Be that as it may, claim petition was filed under section 166 of the Motor Vehicles Act and the Tribunal also treated the claim as one under the said provisions. However, the Tribunal basing on the facts that the deceased who was the employee of the owner of the Oil Tanker died during course of his employment and computed the compensation under Workmen's Compensation Act as shown by the Tribunal in paras 9, 11, and 12 of the judgment which reads as follows:-

“9. However, the claimant deposed that deceased died at the time of proceeding to Saiha in the aforesaid tanker. To support exhibited not only Accident Information Report vide Ext. 1 but also exhibited police final report vide Ext. 2. I have gone through the contents of both the documents. As per those Exts. 1 and 2 the tanker was carrying full loaded of Diesel (HSD) 12,000 liters and while the vehicle reached at Khamrang area at about 2.10 p.m. another vehicle was coming from opposite direction and driver of the tanker to give pass the vehicle placed at the side of the road but due to softness of the soil of the side of the road the tanker fell down into a 300 feet deep gorge and in consequence the deceased being the occupant of the tanker who was escorting the load of diesel got fatal injury and died….

11. The claim application submitted before this Tribunal for which to assess the compensation I have discretion to adopt assessment of compensation procedure laid down by the Supreme Court in respect of application under section 166, MV Act or may adopt proc