1. This appeal is preferred by the claimant being aggrieved by the award dated 4.6.2007 passed by Commissioner, Workmen's Compensation, Labour Court No.1, Gwalior in Case No. COC 8/B/WCA/2004 (Fatal); whereby the Commissioner has dismissed the claim petition filed by the present appellant-claimant on the ground that she has already approached the Motor Accidents Claims Tribunal for compensation and her claim was dismissed.

2. The brief facts of the case are that the appellant, who is widow of deceased Sanjeev alias Munna Agrawal had filed claim petition for compensation for the death of her husband before the Motor Accidents Claims Tribunal, Dabra, which was registered as Claim Case No. 40/02. The Claims Tribnal dismissed the claim petition by, award dated 29.3.2003. From the perusal of the said award, it is clear that the Claims Tribunal while dismissing the claim petition has granted liberty to the present appellant to move appropriate application before Commissioner, Workmen's Compensation for award for the death of her husband and for redressal of her grievance. It also appears that Smt. Pushpa Bai and Madanlal were also the claimants before the Claims Tribunal along with the present appellant. After dismissal of her claim petition, being aggrieved by this award, Madanlal and Smt. Pushpa Bai preferred appeal before this Court by filing M.A. No. 555/05, which was dismissed as withdrawn on 25.7.2003 and therefore, the present claimant-appellant has filed this appeal under section 30 of Workmen's Compensation Act, 1923.

3. From the perusal of the impugned award, it also appears that Smt. Pushpa Bai and Madanlal had also filed a separate application before the Commissioner, Workmen's Compensation, which was registered as case No. COC 19/B/WCA/04 (Fatal). This claim petition was also dismissed. The petition filed by Smt. Rajani Agrawal was dismissed by the impugned award, hence this appeal.

4. This appeal was admitted by this Court on 5.10.2007 on following substantial question of Law:

"Whether dismissal of the claim petition under the Motor Vehicles Act with liberty to the claimant to file a petition under Workmen's Compensation Act will operate as res judicata before the Commissioner, Workmen's Compensation?"

5. The question which was framed by this Court at the time of admission is that the dismissal of claim petition under Motor Vehicles Act with liberty to the claimant to file a petition under Workmen's Compensation Act will operate as res judicata before the Commissioner, Workmen's Compensation.

6. So far as the question framed by this Court about applicability of principle of res judicata is concerned, in the present case, in fact, the said question does not arise for consideration because the Claims Tribunal itself has held that the claim petition before Claims Tribunal is not maintainable and proper forum for deciding the matter is Commissioner, Workmen's Compensation and even it is held that the said finding has attained the finality, as per the said finality, the claim petition is maintainable.

7. The main question which is to be considered is whether the claim petition under Workmen's Compensation Act is maintainable after dismissal of claim petition in a miscellaneous appeal.

8. Section 167 of the Motor Vehicles Act, 1988 provides that a claimant can approach for compensation either before the Claims Tribunal situated under the Motor Vehicles Act or under Workmen's Compensation Act, but he cannot avail both the remedies. The section reads as under:

"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 u