The main legal point established in the judgment is the jurisdiction of the Motor Accident Claims Tribunal in cases involving claims under both the Motor Vehicles Act and the Workmens Compensation Act, and the duty of the Tribunal to assess compensation under the respective Acts and translate the percentage of disability to the percentage of earning power for non-schedule injuries.

K.Kannan, J.

1. I. The two appeals

I.The two appeals in FAO No.759 of 1989 and FAO No. 1001 of 1989 arise out of the same award, the former at the instance of the insurer and the latter at the instance of the claimant for enhancement.

II. Entitlement of a workman/driver responsible for accident

2. The petition for compensation for injuries had been field before the Motor Accident Claims Tribunal by a driver of a truck, who had been injured in a collision with another truck, whose driver was responsible for causing the accident. The claimant had not merely made the owner of the other truck and the insurer as party but had also made his own employer/owner and the insurer as parties to the claim petition. The insurer of the vehicle, which the claimant was driving is the appellant before this Court. Although the claimant had contended that the driver of the other truck namely Raghbir Singh was responsible for the accident, the Tribunal found that the claimant himself was responsible. The insurance company pleaded that if the claimant had been the tort feasor himself, the liability, if at all against the employer-owner, could be only in claim before the Workmens Compensation Commissioner under the Workmens Compensation Act and the petition could not have been successfully prosecuted against the insurer. The Tribunal found that in view of Section 167 of the Motor Vehicles Act enabling a person to file a case either under the Motor Vehicles Act or under the Workmens Compensation Act, the petition filed before the Tribunal was justified and decided to assess the compensation on the basis of evidence and awarded a compensation of Rs.25,000/- against the insurer of the vehicle, which he was himself driving. III. Choice of forum under section 167 arises only if claims are possible in a given situation under both MY & WC Acts

3. The issue of jurisdiction in case of collision between vehicles at the instance of workmen or the representatives have been themselves source of several litigations and it is necessary to stave clear of the cobweb of claptrap and obtain a proper legal perception on the respective spheres of jurisdiction under the Workmens Compensation Act and under the Motor Vehicles Act. There could be no doubt that if a claim is possible both under the Motor Vehicles Act and under the Workmens Compensation Act, Section 167 will certainly be attracted and it will enable the workman to prosecute in either of the Forums. However, the respective enactments have their own limitations of applicability and it may not always be that a workman will not be able to claim compensation under the Motor Vehicles Act only because the accident resulted out of the use of motor vehicle. Under the Workmens Compensation Act, all that could be necessary, would be to show that the accident arose out of and in the course of employment. The issue of negligence of the workman itself may not always be relevant, except in cases of injuries where the employment injury had been the result of doing an act which is expressly against the instructions given by the employer. The mere act of negligence may not exclude liability for the employer. Therefore, in motor accident situation if the workman had been guilty of causing an accident by his negligent driving, if the accident arose out of or in the course of employment, a petition under Workmens Compensation Act would be perfectly maintainable and in such an event, the insurers liability will also be attracted.

4. On the other hand, the same accident that resulted by his negligent act may not give rise to a claim for compensation under the Motor Vehicles Act A claimant, who is a workman cannot successfully prosecute a claim for his own tortious act before the MACT under the Motor Vehicles Act. The principle of providing compensation under the Act is still on the basis of fault which provides the philosophical foundation of a fort law liability, but secured through statutory prescription under MV Act. A w