This appeal is filed by the Insurance Company under Section 173(1) of

the Motor Vehicle Act, 1988 being aggrieved of the award dated 30.04.2022

passed by the learned 12th Motor Accident Claims Tribunal, Bhopal in MACC

No.2729/2019 awarding certain compensation in favour of the claimant.

This appeal is filed only on the ground that the claimant was a cleaner of

the offending vehicle bearing No.MP09-KC-4479. This vehicle was driven by

Salim Khan and owned by Anil Chouhan S/o Mahendra Singh Chouhan and the

truck was insured with Oriental Insurance Company Limited at Bhopal.

It is submitted that claimant should have preferred a claim petition against

the owner under the Workmen Compensation Act, 1923.

Shri Shukla's concern is covered in terms of 'Doctrine of Election'

Supreme

Court

in C. Beepathumma and Others Vs. Velasari

Shankaranarayana Kadambolithaya and Others, AIR 1965 SC 241,

(three Judge Bench) dealt with the elements that go to constitute the pre

requisites for applying the doctrine of election. The context however, was

different, but the principles it stated, are as under:

"17. The doctrine of election which has been applied in this case is

well-settled and may be stated in the classic words of Maitland.”

.ÂœThat he who accepts a benefit under a deed or will or other

instrument must adopt the whole contents of that instrument, must

conform to all its provisions and renounce all rights that are inconsistent

with it.

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(see Maitland's lectures on Equity Lecture 18)

The same principle is stated in White and Tudor's Leading Cases

on Equity Vol. 18th Edn. at p. 444 as follows:

ÂœElection is the obligation imposed upon a party by courts of

equity to choose between two inconsistent or alternative rights or claims in

cases where there is clear intention of the person from whom he derives

one that he should not enjoy both¦. That he who accepts a benefit under

a deed or will must adopt the whole contents of the instrument.

In National Insurance Company Vs Mastan & Anr. , 2006(2) SCC

641, the Supreme Court held that the party to a lis, having regard to the

different provisions of the two Acts, cannot enforce liabilities of the insurer

under both the Acts. He has to elect one.

In fact doctrine of election is a branch of '˜rule of estoppel', in terms

whereof a person may be precluded by his actions or conduct or silence when

it is his duty to speak, from asserting the right, which he otherwise would have

had. The 'Doctrine of Election' postulates that when two remedies are available

for the same relief, the agreed party has the option to elect either of them but

not both.

In S. Suppiah Chettiar vs V. Chinnathurai and Anr. reported in AIR

1957 Madras 216 facts were that an employee moved the commissioner under

the workmen compensation with an action, withdrew this claim and instituted

his suit under the Fatal Accident Act. Extracting from the judgment by Lord

Alverstone C.J. in Rouse Vs. Dixon, 1904-2 KB 628Â​, the judgement reads;

"13.------------, "that being so, it seems to me that when a claim is

made under the Workmen's Compensation Act which cannot be

enforced because the case does not come within the Act at all, the right

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(VIVEK AGARWAL)

JUDGE

of the workman to make any other claim is not lost ........There is nothing

in the Act to lead to the extraordinary result that, where a claim is made

under the Act, but withdrawn before there has been any decision upon it,

all other liability on the part of the master is thereby wiped out.............

The intention of the Act was only to prevent the master from being liable

to pay twice over." (Per Lord Alverstone C.J.)

Supreme Court in the case of Oriental Ins.Co.Ltd vs Dyamavva &

Ors, reported in (2013) 9 SCC 406 has held that option available is either to

file claim petition under the Motor Vehicle Act, 1988 or under Workmen

Compensation Act, 1923 but not under both. Therefore, when employer had

himself deposited certain amount before the Commissioner under Workmen

Compensation Act under Section 8 of the said act, then the Supr