Hon'ble JHAVERI, J.—Being aggrieved by the award dated 21.03.1992 passed by the Learned Commissioner of Workmen's compensation, Amreli in Workmen Compensation Application No. 19 of 1985 awarding Rs. 61172/- to the claimant, the present appeal is preferred.

2. It is the case of the appellant that on 01.09.1985 the deceased Bhikhabhai Ukabhai had gone to Jetpur driving a matador and while returning on 02.09.1985 with the children of the respondent no. 1 and the original claimant no. 4 in the matador. At that time a public carrier no. GTX 3246 which was loaded with iron bars came from the opposite direction in high speed and dashed with the matador. The driver of the matador died on the spot. The other passengers were seriously injured. The legal heirs of the deceased filed compensation of Rs. 142080. The Commissioner after hearing the parties passed the aforesaid award.

3. Mr. Nanavati, learned advocate appearing for the appellants submitted that the Commissioner ought to have seen that the parents and brothers of Bhikhabhai have received compensation in Motor Accident Claims Petition No. 81/85 to an extent of Rs. 42000/- and therefore are not entitled to claim compensation on the same cause of action.

4. Mr. Shah, learned advocate appearing for the claimants submitted that pointed out that the amount of compensation received in Motor Accident Claims Petition No. 81/85 is for different policy and is claimed from the vehicle which he was driving. It does not have any connection with the present insurance company.

5. Having heard learned advocate for the parties and having perused the papers on record, this court is of the view that the contention by the learned advocate for the respondent is required to be accepted. It is pointed out by the learned advocate for the claimant that the compensation received is for a different policy which covered the risk of the vehicle driven by the deceased. In fact the issue involved in the present appeal is squarely covered by a decision of this Court dated 10.07.2009 passed in First Appeal No. 2704 of 2009 with Civil Application No. 7118 of 2009. The said decision has been confirmed by the Apex Court by dismissing the SLP filed against it. Relevant paras of the said decision read as under:

"13. In view of the decision of Division Bench of this Court as referred to above, law is very much clear on the subject that the claimants are entitled to file independent proceedings against respondent if two vehicles are involved in accident and claimants are entitled to file claim petition before claims tribunal against offending vehicle being third party under the MV Act and simultaneously claimant is also entitled to file claim application before WC Commissioner against his employer and insurance company of the vehicle of employer. Employer is statutorily bound to pay compensation in case of death of its employee because of the relationship of employer and employee and claimant is also filing claim petition against tortfeasor who is liable to pay compensation under the MV Act, 1988. Particular observations made by Division Bench of this Court are reproduced as under:

"Even otherwise, there is no force in the submissions raised by the learned counsel for the appellant-Insurance Company. Section 110A of Motor Vehicles Act, 1939 is applicable to a person who has two remedies against the joint tort feaser(s) while object of Section 3(5) of the Workmen's Compensation Act,1923, is to save the employer from double jeopardy, meaning thereby,from multiplicity of litigation, one under the Workmen's Compensation Act, 1923, and other under the Motor Vehicles Act, 1939. Where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, 1923, he is not debarred from raising /claiming compensation under the Motor Vehicles Act, 1939, against the tort feaser. Present is a case where claimants are receiving compensation from the employer who is statutorily bound to pay the same on the death of dec

Click Here to Read the rest of this document