The claimants' exercise of their option under the Motor Vehicles Act before receiving compensation under the Workmen's Compensation Act did not bar their claim under the Motor Vehicles Act.

( 1 ) ONE Mehtaruram was in the employment of Bhilai Steel Plant, Bhilai, District Durg. On 1-9-92, at about 11. 00 p. m. , Mehtaruram who was working in the Bhilai Steel Plant was going back to his house, was dashed and hit by a Maruti Car Bearing Registration No. MOR 247, the vehicle was being driven by Rajendra Kumar. The car belonged to M/s. Ferro Scrape Corporationlimited and was under immediate control of the Asstt. Manager (Personnel) Ferro Scrape Corporationlimited The vehicle was insured with the appellant/oriental Insurance Company. According to the allegations made in the claim petition, the vehicle was driven rashly and negligently. After hitting the deceased, the driver fled away from the spot. Mehtaruram was admitted in the hospital, who died on 2-9-92 at 0. 30 a. m. The claim petition further states that the claimant was about 52 years of age, was to work for more than six years and would have earned a good amount for the family. The claimants who are respondents No. 1 to 5 in this case claimed a sum of Rs. 4,68,920/- as compensation. An application under Section 140 of the Motor Vehicles Act was also filed seeking compensation under the provisions of no fault liability. By order dated 26-7-93, the Claims Tribunal, in claim case No. 11/93 delivered an interim award of Rs. 25,000/- in favour of the claimants. On 12-10-93, the present appellant and others moved an application under Section 167 of the Motor Vehicles Act seeking relief that as the claimants had exercised their option under the provisions of Workmen's Compensation Act, their application under the Motor Vehicles Act was not maintainable. The claimants contended before the Court that they did not move any application for grant of the compensation before the Commissioner, Workman Compensation, but as the amount was already deposited by the employer of the deceased, they simply made an application for its disbursement. After hearing the parties, the learned Court below held that the petition filed by the claimants was maintainable and the application filed by the present appellant was not tenable.

( 2 ) SMT. Ruprah, learned counsel for the appellant placing reliance on the judgment of Delhi High Court in the matter of N. N. Kashyap v. Ratti Ram 1986 ACJ 484 and judgment of this Court in the matter of this Court in the matter of New India Assurance Co. Limited v. Kamar Jahan 1994 ACJ 100, has contended that where the claimants have exercised their option under the provisions of Workmen's Compensation Act, 1923, they shall not be permitted to take advantage of the provisions of Motor Vehicles Act, 1939, especially Section 92-A, in view of the bar contained under Section 110-AA (Sections 140 and 167 of 1988 Act ).

( 3 ) ON the other hand, Shri N. C. Beohar, learned counsel for the claimants placing his strong reliance on a judgment of Gujarat High Court in the matter of Harivadan maneklal Modi v. Chandrasinh Chhatrasinh Parmar, AIR 1988 Gujarat 69, contended that if the claimants did not do anything for recovery of the money under the provisions of Workmen's Compensation Act, but had only received money deposited, by the employer, with the Commissioner, they are not debarred from claiming compensation under the Motor Vehicles Act.

( 4 ) SECTION 3 (5) (a) of the Workmen's Compensation Act, 1923 reads as under :-"3 (5 ). Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a civil court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury - (a) If he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) If an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. "

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