Hon'ble Dr. KOTHARI, J.—

Appeal No. 981/2008

1. This appeal has been filed by the appellant – Insurance Company under Section 30 of the Workmen Compensation Act, 1923 aggrieved by the award of the Workmen Compensation Commissioner, Jodhpur dtd.31.3.2008 in claim Case No.11/2006.

2. The brief facts giving rise to this appeal are that the husband of the respondent No.1 Smt. Badami, namely, Pappu Ram while driving Truck No. RJ-19/1G-3189 coming from Mumbai to Jodhpur in the night between 29.7.2003 and 30.7.2003, collided with Trailer No. HR-55-0707 and in the said accident Pappu Ram lost his life. The wife of the said deceased Pappu Ram, namely, Smt. Bidami Bai and his children Mamta, Rekha and Munna initially filed claim case No.103/2005 on 16.5.2005 before the Motor Accident Claims Tribunal, Jodhpur and the said claim was awarded on 30.11.2005 and a sum of Rs.4,60,333/- was paid to the claimants for the said death, in January, 2006. Thereafter somewhere in June, 2006, it appears that the same claimants filed present claim before the Workmen Compensation Commissioner against the employer and owner of the Truck being driven on the date of accident by Pappu Ram, namely, Truck No.RJ19/1G-3189 impleading the owner Sh. Gopi Ram as employer - respondent and the appellant New India Assurance Company as respondent. In MACT Case No.103/2005, these claimants had impleaded tortfeasor, namely owner Bhim sen, driver and insurer, the same Insurance Company, namely, the New India Assurance Company Limited of other offending vehicle, namely Trailer No. HR55-0707, in which they were awarded a compensation of Rs.4,61,333/-.

3. The Workmen Compensation Commissioner decided the claim No.11/2006 and awarded a sum of Rs.3,46,368/- and interest on the said compensation of Rs.1,93,866/- by the impugned award dtd.31.3.2008. The Workmen Compensation Commissioner in the award dtd.31.3.2008 noticed that there was delay in filing the claim petition of about 3 years, since the accident took place ion 29.7.2003 and the claim petition was filed in June, 2006, however the said delay deserves to be condoned as the employer respondent No.1 Gopi Ram had assured the claimant that let first MACT claim be decided and thereafter the claim under the Workmen Compensation Act as may be decided by the competent authority would be paid by him. The Workmen Compensation Commissioner also held that plea of limitation would not come in the way of the claimants and the claim should be decided on merits. The Workmen Compensation Commissioner also relying upon the decision of Gujarat High Court in the case of Nasim Banu vs. Ramji Bhai Bachchu Bhai Ahi reported in MACD 2006(1) Gujarat 108 held that notwithstanding the award of the claim under the provisions of Motor Vehicles Act against the tortfeasor, the claim against the employer under the Workmen Compensation Act, 1923 could be awarded in favour of the claimants. Being aggrieved by the said award, the Insurance Company has preferred this appeal before this Court.

4. Mr. D.S. Nimla, learned counsel appearing for the Insurance Company submitted that in view of bar under Section 167 of the Motor Vehicles Act, 1988 and also Section 3(5) of the Workmen Compensation Act, the claimants – legal representatives of deceased Pappu could not claim double benefit under both the enactments and therefore, the subsequent claim under the Workmen Compensation Act, 1923 was liable to be rejected and the appellant – insurance company cannot be made to pay said compensation. He also urged that claim itself was time barred having been filed after a delay of 3 years and also there was contributory negligence on the part of the driver Pappu Ram himself and thus, the claim under the MACT case having already been paid by the same insurance company, the award under the Workmen Compensation Act, 1923 deserves to be set aside. He relied upon the several decisions of the Hon'ble Supreme Court and various other High Courts and reference to which would be