The claimant can opt for compensation under the Motor Vehicles Act or Workmen's Compensation Act if the accident arises out of the vehicle's use.

1. The appellant - non - applicant No. 1, Khitti Sahu has preferred this appeal under S.173 of the Motor Vehicles Act , 1988, against the order dated 1.8.1998 passed by Additional Motor Accidents Claims Tribunal, Mahasamund in Claim Case No. 10 of 1996 whereby the learned Tribunal while deciding preliminary issue No. 7 regarding maintainability of the claim petition before the Claims Tribunal has held that the claim petition was maintainable.

2. That respondent No. 1 herein had filed a claim case under S.166 of the Motor Vehicles Act claiming compensation of Rs.5,00,000 on the pleading that he was working as a tractor mechanic in the shop of appellant herein where respondent No. 2 herein brought his tractor - trolley for being repaired and while respondent No. 1 herein was fitting the bearing in the wheel of the tractor by removing the same and the tractor was standing over the jack, all of a sudden the tractor slipped from the jack and the tractor - trolley fell on the respondent No. 1 as a result of which he sustained serious injuries on the backbone. It was claimed by respondent No. 1 - applicant that he was working under the directions of the appellant - non - applicant No. 1 and the accident occurred during the use of motor vehicle as a result of negligence of the appellant - non - applicant No. 1 as he did not take proper care.

3. Learned counsel for the appellant submits that the application for compensation under the Motor Vehicles Act can be preferred under S.166 arising out of the accident of the nature prescribed in S.165 (1). He further submits that the appellant - non - applicant No. 1 was neither the owner of the tractor nor there is an allegation in the petition that he was driving the tractor at the time of the accident and, therefore, the application for compensation under the is not maintainable and the only course available to the claimant was to move an application under the provisions of the Workmen 's Compensation Act as he claims to be the employee of the appellant - non - applicant No. 1. He further submits that the alleged accident did not arise out of the use of motor vehicle as admittedly it occurred outside the premises of the appellant - non - applicant No. 1 on a road near Prakash Medical Stores, Basna and respondent No. 1 - applicant went there to repair the same as per the instructions of the appellant - non - applicant No. 1 and at that moment the jack slipped and as a result of which the tractor - trolley fell over the claimant. Thus from the pleadings of the appellant - non - applicant No. 1 itself it would be evident that the accident occurred because of the negligence of the claimant himself and in the aforesaid circumstances no liability of compensation can be fastened on the appellant - non - applicant No. 1 under the and as such the claim petition was not maintainable.

4. On the other hand, learned counsel for the respondents submits that as per the averments made in the claim petition the claimant was the employee of appellant - non - applicant No. 1, he had gone to repair the tractor as per the instructions of the appellant - non - applicant No. 1 and the accident occurred during his employment and the claimant sustained bodily injuries due to accident arising out of the use of motor vehicle. Referring to S.167 of Motor Vehicles Act it is contended that where the death of or bodily injury to any person gives rise to a claim of compensation under the of 1988 and also under the Workmen's Compensation Act , 1923, the person entitled to compensation may claim such compensation under either of these Acts and since the respondent No.1 - applicant has opted for