IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK AGARWAL

ON THE 2^nd OF AUGUST, 2022

MISC. APPEAL No. 3550 of 2022

Between:-

THE

ORIENTAL

INSURANCE

CO.

LTD.

THROUGH MANAGER INCHARGE T P HUB

DIVISIONAL OFFICE 11-B INDRAPURI IN FRONT

OF JUBLEE GATE RAISEN ROAD BHOPAL M.P.

.....APPELLANT

(BY SHRI PRABHAT SHUKLA, ADVOCATE )

AND

1.

SMT.

PREETI

AHIRWAR

W/O

RAJESH

AHIRWAR,

AGED

ABOUT

24

YEARS,

OCCUPATION: WIFE OF DECEASED GRAM /

POST DOBI TEHSIL BUDNI DISTRICT SEHORE

M.P. (MADHYA PRADESH)

2.

KU. PRIYANKA D/O RAJESH AHIRWAR, AGED

ABOUT 3 YEARS, OCCUPATION: (DAUGHTER OF

DECEASED) THROUGH NATURAL GUARDIAN

MOTHER

SMT.

PREETI

AHIRWAR

R/O

GRAM/POST DOBI, TEHSIL BUDNI, DISTRICT

SEHORE (MADHYA PRADESH)

3.

SMT. KAMLA BAI AHIRWAR W/O MAHESH

KUMAR, AGED ABOUT 47 YEARS, OCCUPATION:

(MOTHER OF DECEASED) R/O GRAM/POST

DOBI,

TEHSIL

BUDNI,

DISTRICT

SEHORE

(MADHYA PRADESH)

4.

SALEEM

KHAN

S/O

SAKOOR

KHAN R/O

BAMHORI, BAJIRGUNJ, WARD NO. 14, THANA

AND TEHSIL BADI DISTRICT RAISEN (MADHYA

PRADESH)

5.

ANIL

CHOUHAN

S/O

MAHENDRA

SINGH

CHOUHAN R/O GRAM JAIT, THANA SHAHGUNJ,

TEHSIL BUDNI, DISTRICT SEHORE (MADHYA

PRADESH)

.....RESPONDENTS

1

(NONE FOR THE RESPONDENTS )

This appeal coming on for hearing this day, th e court passed the

following:

ORDER

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.

2

(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