An employee who has elected to file a claim under the WC Act is not entitled to invoke the provisions of the MV Act.

JUDGMENT

Pushpendra Singh Bhati, J. - This appeal U/s.30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :-

"It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed with costs, judgment and award dated 26.12.2003 passed by the learned Commissioner, Workmen's Compensation Act, Rajsamand in Case No.4/2002, may kindly be quashed and set aside and the claim petition may kindly be dismissed as against the appellant company."

2. The unfortunate accident happened on 13.8.2001 when Kesa Ram (deceased) was working as Helper in the mines of respondent no.2 on Poclain Machine. While he was working, a huge stone fell on the Machine, crushing Driver and Kesa Ram. Both of them expired due to the said accident.

3. Counsel for the appellant-Insurance Company submits that an employee/workman has an opportunity to elect remedy in accordance with Section 167 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act') and once he has elected to file claim under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'WC Act'), then he is not entitled to invoke the provisions of MV Act, for which restricted parameters of Chapter-X of MV Act shall apply.

4. Counsel for the appellant demonstrated from policy that a premium of Rs.5091/- was charged and no premium was charged to cover for the risk of any other employee (except the Operator, for which a premium of Rs.15/- was charged). The policy also include own damage clause. Counsel for the appellant submits that it is admitted position that deceased was not an Operator on Poclain Machine and was working as Labour in the mines of respondent no.2. Counsel for the appellant submits that once a labour/workman has consciously chosen option regarding availing compensation under the WC Act, then he shall not be entitled to get any relief under MV Act, particularly, beyond Chapter-X.

5. Counsel for the appellant submits that the learned Commissioner had gone on the premise that since Operator of machine in-question and Labour i.e. Kesa Ram were working on Poclain Machine, therefore, Kesa Ram is entitled to recover compensation under third party risk clause when the proceedings in-question were filed under WC Act. Counsel for the appellant has drawn attention of this Court to judgment rendered by Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Mastan & Anr., (2006) 2 SCC 641 ; relevant portion whereof reads as follows :

"34. On the language of Section 167 of the Motor Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act 1988 other than what is specifically saved by Section 167 of the Act. Section 167 of the Act gives a claimant even under the Workmen's Compensation Act, the right to invoke the provisions of Chapter X of the Motor Vehicles Act 1988. Chapter X of the Motor Vehicles Act 1988 deals with what is known as 'no fault" liability in case of an accident. Section 140 of the Motor Vehicles Act, 1988 imposes a liability on the owner of the vehicle to pay the compensation fixed therein, even if no fault is established against the driver or owner of the of the vehicle. Sections 141 and 142 deal with particular claims on the basis of no fault liability and Section 143 re-emphasizes what is emphasized by Section 167 of the Act that the provisions of Chapter X of the Motor Vehicles Act, 1988, would apply even if the claim is made under the Workmen's Compensation Act. Section 144 of the Act gives the provisions of Chapter X of the Motor Vehicles Act 1988 overriding effect."

6. Counsel for the respondent has not been able to refute the proposition that Kesa Ram (deceased) was working as Labour on the mines of respondent no.2. The learned Commissioner has gone absolutely on the premise that, though, Kesa Ram died during the course of employment but compe