The main legal point established in the judgment is that a claimant cannot maintain a claim under both the Motor Vehicles Act and the Workmen's Compensation Act for the same cause of action, as provided under Section 167 of the Motor Vehicles Act, 1988.

Anil Kumar,J.: -

Matter is taken in the revised list.

None appeared on behalf of the contesting respondents.

2. Heard Shri Ashish Kumar Srivastava, learned counsel for the revisionist.

3. As per undisputed facts of the present case, on 16.04.2000, some persons have booked vehicle bearing Registration No.U.P.34-C/0829 owned by Subodh Kumar Awasthi and Ashok Kumar Awasthi i.e. respondent nos.2 and 3. Thereafter, the same has been given on heir driven by Shri Satish Kumar in the capacity of driver accompanied by one Shri Subodh Kumar Awasthi. Later on, the dead body of the Shri Satish Kumar and Shri Subodh Kumar Awasthi were received at Itaunza, District-Barabanki.

4. In view of the abovesaid facts, opposite party no.4/Smt. Bindeshwari Devi W/O late Shri Satish Kumar along with the son of the deceased filed a case under Workmen Compensation Act registered Case No.179 of 2002 for compensation of death of her husband/late Sri Satish Kumar, dismissed by judgment and order dated 21.07.2004 passed by Commissioner appointed under Workmen's Compensation Act.

5. Thereafter, Smt. Bindeshwari Devi along with her sons Alok Kumar and Rahul who were minor filed a claim petition under Section 163-A of the Motor Vehicle Act registered as Motor Accident Claim Petition No.307 of 2004 for compensation for accidental death of her husband/late Shri Satish Kumar in which the appearance has been put up by the revisionist/New India Assurance India Ltd. and a defence has been taken that in view of the provisions as provided under Section 167 of the Motor Vehicle Act, 1988. the said claim petition for compensation is not maintainable under Section 163-A of the Motor Vehicle Act, liable to be dismissed on the said ground.

6. After exchange of the pleadings between the parties, the Motor Accident Claim Tribunal had framed the issues and issue no.6 is in respect of maintainability of the claim petition on the aforesaid ground.

7. After hearing the parties concerned, by means of the order dated 06.12.2005, learned Additional District Judge, Court No.1, Motor Accident Claim Tribunal, Sitapur thereby deciding the issue no.6 and held that the Motor Accident Claim Petition filed by respondent nos.2 and 3 is maintainable. The relevant finding given in this regard is as under : -

"The learned counsel for the insurance company has further submitted that once the petitioner has lost case under workmen's compensation Act, then the petitioner is precluded from restoring to the other forum. The learned counsel for the petitioner submitted that the parties of the W.C. No.179 of 2002 and the parties of present petition and matter in issue and ground of claim are different. Therefore, the decision of W.C. Case is not a bar in prosecuting the present case.

Considering the submissions of both parties in this regard, it will be worth mention that though the parties of both the cases are same and the deceased is same but the grounds of claim and provisions thereof submitted by claimants are different. The claimants of W.C. Case no.179 of 2002 may not be precluded from prosecuting this petition. The point of determination and matter in issue will also be subject to evidence and merit.

In the light of the observations made above, it is observed that the present petition is not barred by res-judicata due to W.C. Case No.179 of 2002. The present case is maintainable and liable to be proceeded. The factual and legal obsection shall be determined after evidence of the parties on merits."

8. Aggrieved by the said order, the present revision has been filed by the revisionist.

9. Shri Ashish Kumar Srivastava, learned counsel for the revisionist, in nutshell, submits that the impugned order dated 06.12.2005 passed by the Motor Accident Claim Petition thereby deciding the issue no.6 inter alia stating that claim petition is not maintainable in respect of the fact that earlier claim petition filed by the said persons under the Workmen Compensation Act, 1923. has been dismissed on