1. The third defendant in a suit for compensation is the petitioner herein. In the suit, a compensation for Rs.10 lakh was claimed by the plaintiffs, who are the legal representative of the deceased Mahesh, who died on 31/3/2010 by electrocution. The deceased was working as a contract worker under KSEB. It is stated that the plaintiffs have also filed WCC No.67/2011, before Workmen's Compensation Commissioner, evidenced by Ext.P2, claiming a compensation for Rs.12 lakh, based on the same cause of action. The petitioner is the third respondent therein.

2. The learned counsel for the petitioner submits that since WCC No.67/2011 filed by the plaintiffs in the suit is now pending before the Deputy Labour Commissioner-Kollam, the plaintiffs cannot prosecute the suit.

3. The fact that in respect of the same cause of action a suit is pending before the Sub Court and at the same time, WCC No.67/2011 is pending before the Workmen's Compensation Commissioner (Deputy Labour Commissioner) is not in dispute. There is no dispute regarding the fact that plaintiffs have to elect one of them and cannot have both together. Sec.3(5) of the Workmen's Compensation Act, 1923 reads:

“(5) Not