JUDGMENT :

1. This appeal is directed against the impugned judgment and award dated 14.07.2009 passed by the Court of learned Additional District Judge (Fast Track)-cum-Motor Accident Claims Tribunal, Tonk (Raj.) (for short ‘the Tribunal’) in Motor Accident Claim Case No. 73/2008 by which the claim petition filed by the claimants-appellants has been dismissed on the ground that the claimants-appellants have already got compensation in a claim petition filed by them under the provisions of Workmen’s Compensation Act, 1923 (for short ‘the Act of 1923’).

2. The issue involved in this appeal is that ‘Whether the claimants-appellants can file two parallel claim petitions for getting compensation under section 22 of the Workmen’s Compensation Act, 1923 and under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’)?’

3. The brief facts of the case are that the claimants-appellants filed a claim petition before the Tribunal seeking compensation on account of death of Ramlal who died in an accident occurred on 07.11.1991. It was pleaded in the claim petition that at the time of accident, deceased Ramlal was working as a driver and because of his sudden demise in the aforesaid accident, his dependents (appellants) suffered not only economic loss but also deprived from his love, affection and care.

4. The respondent No.2-Insurance Company submitted its reply and denied the averments made in the claim petition and took objection that the claimants-appellants have already got compensation from the Workmen Compensation Commissioner. Hence, the claim petition filed by the claimants-appellants is not maintainable.

5. On the basis of the pleadings of the parties, the Tribunal framed as many as six issues. In support of the claim, the claimants examined AW-1 Prem and AW-2 Asharam. While on behalf of respondents, no witness was produced in defence.

6. While deciding issue No.5, the Tribunal held that since the claimants-appellants have already got compensation by way of filing a claim petition under Section 22 of the Act of 1923, hence, they are not entitled to file subsequent application for getting compensation under the Motor Vehicles Act in view of Section 167 of the Act of 1988 and the claim petition filed by the claimants-appellants was dismissed.

7. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 14.07.2009, the claimants-appellants have submitted the instant appeal before this Court.

8. Learned counsel for the claimants-appellants vehemently submitted that the doctrine of election provided for in Section 167 of the Act of 1988 does not apply where the claimants have right to proceed against the employer under the Act of 1923 and against the tortfeasor; a different person under the provisions of the Act of 1988. Counsel further submitted that the bar under Section 167 of the Act of 1988 is only against the availing of two remedies against the same employer under both the enactments namely Workmen’s Compensation Act, 1923 and the Motor Vehicles Act, 1988. Counsel further submitted that the respondents in both the claim petitions were different even though the insurance company was common, the insurance company cannot be absolved from its liability to pay compensation under two separate insurance contracts. Lastly, counsel argued that the compensation awarded by the Commissioner, Workmen’s Compensation Act, 1923, can be adjusted in a subsequent claim filed by the claimants-appellants before the Motor Accident Claims Tribunal under the provisions of the Act of 1988.

9. In support of his contentions, learned counsel for the claimants appellants placed reliance on a judgment of Hon’ble the Supreme Court delivered in the case of Oriental Insurance Company Ltd. Vs. Dyamavva and Ors., reported in 2013 ACJ 709, where their Lordships of the Hon’ble Supreme Court has held in para 14 as under:-

“In the aforesaid view of the matter, we hereby affirm the determination rendered by the Motor Accidents Claims Tribu