A claimant entitled to compensation under both the Motor Vehicles Act and the Workmens Compensation Act can choose to claim under either Act, but not under both. A plea of negligence is fundamental to the maintainability of an application under Section 110-A of the Motor Vehicles Act and its absence should ordinarily preclude the Claims Tribunal from trying the claim. An amendment to include a plea of negligence cannot be allowed for the first time in appeal.

R. S. Pathak, C. J.:- This is a claimants first appeal directed against the order of the Motor Accident Claims Tribunal, Kangra Division dismissing their petition for compensation under Section 110-A of the Motor Vehicles Act, 1939.

2. Daya Ram was employed as a truck driver by the respondents Tani Ram, Smt. Raj Kumari, Jagmohan and Chain Lal. They owned Truck No. HIM- 4934, which was insured with the Oriental Fire and Life Insurance Company Limited. On February 18, 1968, Daya Ram was driving the truck from Mehatpur to Bahi Kharialti in the Tahsil of Hamirpur. At Talmehra, at about 6 Oclock in the morning, the truck met with an accident. It overturned and Daya Ram was killed. His widow Smt. Gayatri Devi, his daughter Neelam and son Papu filed a claim on May 3, 1968 before the Motor Accident Claims Tribunal under Section 110-A of the Motor Vehicles Act for compensation from the employers and the Insurance Company. The respondents resisted the claim on the ground that the Tribunal had no jurisdiction to entertain it and that it did not disclose any cause of action against them. The Claims Tribunal dismissed the claim by its order dated December 2, 1970. It held that the claim did not disclose any cause of action against the respondents inasmuch as no plea of negligence had been taken therein. It also held that Daya Ram had died during the course of his employment and therefore the claim properly lay before the Commissioner under the Workmens Compensation Act and not before the Motor Accident Claims Tribunal.

3. The claimants then filed the present appeal.

4. It appears that after the impugned order of the Claims Tribunal, the claimants also applied for compensation on January 8, 1971 before the Commissioner under the Workmens Compensation Act, and that application is pending.

5. It is urged on behalf of the appellants that it was open to them to make a claim for compensation either under the Motor Vehicles Act or under the Workmens Compensation Act inasmuch as the death had arisen out of the use of a motor vehicle. It is also urged that a specific allegation of negligence in the claim petition is not necessary and that the fact of negligence could be determined later on in the trial of the claim, For the respondents, the case is that after the Claims Tribunal had dismissed the claim the appellants had elected to apply for compensation before the Commissioner under the Workmens Compensation Act and therefore the present appeal should not be entertained. It is also urged that a plea of negligence is the sine qua non of a claim made under the Motor Vehicles Act and in its absence the present claim is incompetent.

6. The first point for consideration is whether the claim of the appellants can be entertained under Section 110-A of the Motor Vehicles Act. To appreciate the context in which the point falls to be decided, it is necessary to trace briefly the evolution of the law in this area.

7. Originally, the position appears to have been that in certain cases the employer was liable under the common law to a workman for any injury arising out of and in the course of his employment, and the workman could recover damages against his employer for such injury. Subsequently, the Workmens Compensation Act, 1923 was enacted as a result of which employers have become the insurers of their servants against accidental injuries and deaths. The Act provides a simple and expeditious remedy. The Schedule to the Act specifies a fixed quantum of compensation depending upon the wages of the workman and the nature of his injuries. The obligation of the employer to pay compensation under the Act is determined by the mere circumstance that it was caused by an accident arising out of, and in the course of, his employment. The liability is independent of any neglect or wrongful act on the part of the employer. It is a liability which springs out of the relationship of master and servant and not out of tort. Works Manager Carriage and Wagon Shop v. Mah