ORDER :

(Pankaj Bhatia, J.)

1. Heard counsel for the parties and Sri Bhanu Pratap for respondent no. 2 to 7.

2. Present petition has been filed challenging the order dated 02.02.2022, whereby the application filed by the petitioner for recall of the award dated 18.12.2018 was rejected.

3. The facts in brief are that husband of the respondent no. 2 died on 14.04.2013 in an accident caused on 28.12.2012 with the vehicle bearing No. UP 27 E 4671. The deceased was the cleaner in a truck bearing No. UP 27 T 2264 and on the ill fated day, when he went to repair the tyre, the tempo bearing No. UP 27 T 4671 hit the deceased which caused grievous injuries and ultimately led to his death.

4. The respondent no. 2, claiming compensation filed a case No. 50/E.C.A./2013 before the Workmen's Claims Commissioner claiming compensation on account of the death of the husband of the claimant, respondent no. 2. In the said case final order was passed on 06.11.2013 granting compensation of Rs. 588913/-amount awarded was decided to be paid by the insurer of truck No. UP 27 T 2264 mainly on the ground that the deceased died while on duty and was entitled for compensation from the employer under the Workmen's Compensation Act. As the employer was indemnified by the insurance company, the amount as granted was directed to be paid by the ensurer of truck No. UP 27 T 2264, namely Sri Ram General Insurance Company Ltd..

5. After award was passed on 06.11.2013, the respondent no. 2 alongwith the respondent no. 3 to 7 filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation from the owner of tempo No. UP 27 T 4671, which was said to be insured with the petitioner company. The said claim petition was allowed vide judgment dated 06.04.2017, wherein an amount of Rs. 4,57,000/-was determined as compensation under Motor Vehicles Act. While passing the said award, the amount was directed to be paid (1/6th share to each) to the claimants, wife of the deceased (respondent no. 2), the minor children of the respondent no. 2 as well as the mother and father of the deceased in the proportion as indicated.

6. The petitioner company subsequently moved an application seeking recall of the award dated 06.04.2017 mainly on the ground that prior to filing of the claim petition, the claimant, respondent no. 2 had filed proceedings under Workmen's Compensation Act and the award was passed in her favour, which fact was not disclosed by the respondent no. 2 in the claim petition No. 148 of 2014. The contention of the petitioner was that the claim as decided in MACT No. 148 of 2014 was barred by virtue of the Section 167 of the Motor Vehicles Act. The said application for recall was rejected by means of order dated 02.02.2022 mainly on the ground that the application for recall/review was not maintainable before the Tribunal.

7. The contention of the counsel for the petitioner is that in view of the bar created under Section 167 of the Motor Vehicles Act, a right of election of remedy vested in favour of the claimant and once the remedy/right was chosen, the right to claim compensation under the different Act was specifically barred. He argues that in view of the bar created under Section 167 coupled with the fact that there were no disclosure made in the claim petition, the award was obtained by the misrepresentation and contrary to the statutory provisions and thus, was liable to be recalled. In support of his contention, he places reliance on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Vs. Mastan and Anr. (2006) 2 SCC 641.

8. He also places reliance on the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Dyamavva and Ors.(2013) 9 SCC 406. He then places reliance on the judgment of the Gujarat High Court in the case of Madinabibi Dasotbhai Sheikh and Ors. Vs. Jagdishchandra Ramanlal Kachiya Patel and Ors. Decided on 23.06.2017 in First Appeal No.1998 of 2017 and lastly pla