The election of claimants under section 167 of the Motor Vehicles Act, 1988, to claim compensation under the Motor Vehicles Act precludes the Tribunal from fastening liability on the owner, driver, and insurer on the basis of the liability created under the Workmen's Compensation Act, 1923.

S.K. Dubey, J.

1. The appellant is the Insurance Company who has filed this appeal under section 173, Motor Vehicles Act, 1988 aggrieved of the award dated 15-12-1995 in Claim Case No. 28/93, passed by IIIrd Additional Claims Tribunal, Bhopal.

2. It is not disputed that deceased Gopal was employed as a driver on truck No. CIC 0552 owned by respondent No. 6, driven by respondent No. 7 at the relevant time and insured by the appellant company.

3. The manner and the circumstances in which the accident occurred are stated in para 2 of the award. The findings of the Tribunal that the accident was caused due to rash and negligent driving of the respondent No. 7 as a result of which the deceased Gopal who was employed as a second driver died, are also not under challenge.

4. The Tribunal after appreciation of the evidence adduced by the parties recorded a finding that the deceased was getting salary of Rs. 2,000/- per month wherein a deduction of Rs. 500/- per month was given for the personal living expenses of the deceased, the Tribunal determined the dependency at Rs. 1,500/- per month, yearly Rs. 18,000/- and by applying the multiplier of 15 awarded compensation of Rs. 2,70,000/- and allowed on that amount interest at the rate of 12% per annum from the date of application till payment.

5. Shri B. D. Jain and Shri Sunil Jain, counsel for the appellant, contended that the deceased was a workman, therefore, the claimants ought to have approached the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923 where the legal representatives who are the dependents would have received the compensation according to the Schedule of the Act. On merit it was submitted that the Tribunal without any legal evidence by including TA and DA which remains fluctuating, held that the deceased was earning Rs. 2,000/- per month. Determination of dependency is also on higher side. Therefore, it was contended that the compensation so awarded by the Tribunal is highly excessive and deserves to be reduced.

6. After hearing Shri Sharad Verma, learned counsel for the claimants, we are of the opinion that the application of the legal representatives of the deceased workman was maintainable before the Tribunal as section 167 of the Motor Vehicles Act, 1988 gives option which reads thus :

"167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."

Therefore, it is the election of the claimants under section 167, if the claimants elect to claim compensation who have been found to be a tort feasor by the Tribunal, it is not open to the Tribunal to fasten the liability on the owner, driver and insurer on the basis of the liability created under the Workmen's Compensation Act, but the claimants would be entitled to get the entire compensation as determined for the death of a person/workman in accident arising out of use of motor vehicle. Norms of Workmen's Compensation Act cannot be applied. See Suresh Chandra v. State of U.P., (1995) 6 SCC 623, K.K. Jain v. Smt. Massoor, 1989 MPLJ 690, AIR 1990 MP 87.

7. The deceased at the time of accident was in between 32 to 35 years of age and was working as second driver in the employment of the respondent No. 6 who was drawing monthly wages twelve hundred rupees, besides TA and DA, even if that is ignored for want of legal evidence, considering the age of the deceased and the principles laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation v. Mst. Susamma Thomas, 1994 MPLJ 520, AIR 1994 SC 1631, it would be proper to take Rs. 1,500/- as the monthly income of the