D. Biswas, J.
1. This appeal by the Insurance Company is directed against the judgment and order dated 29th May, 2002 passed in W.C. Case No. 217/2001 by the learned Commissioner, Workmen's Compensation, Kamrup at Guwahati allowing a compensation of Rs. 4,23,580/- to the respondents-claimants.
2. The respondent Nos. 1, 2 and 3 filed the claim petition for compensation on death of Dara Singh Sutradhar who was working as driver of a Mini Truck bearing Registration No. AS-01/C-3182 belonging to the respondent No. 4.
3. On 29.07.2001, Dara Singh Sutradhar was driving the aforesaid vehicle with CRPF personnel on way to Rangjuli. On the way at Bhalukjuli, while passing over a wooden bridge, the vehicle was blown off by a remote controlled explosive device by extremists. As a result, Dara Singh Sutradhar along with two other persons died. The vehicle was insured with the appellant Company. The death of the driver was in course of his employment and, as such, an application for compensation was filed under the Workmen's Compensation Act. It may be mentioned here that the claim petition has been filed by the brother of the deceased, sister (widowed) and her son.
4. The appellant Company entered appearance and contested the claim. They took the plea that the respondents were not dependent on the deceased and, therefore, the claim petition cannot be entertained.
5. The learned Commissioner on appreciation of the materials on record awarded the verdict granting compensation without any finding on the objection raised.
6. At the time of admission of this appeal no substantial question of law was formulated as is required under the proviso to Section 30 of the Act. Considering the pleadings, it has been decided to hear this appeal on the following question of law:
Whether the respondents-claimants who are the brother and widowed sister of the deceased workman could be treated as dependents under the provisions of the Workmen's Compensation Act, 1923?
7. There is no dispute that the father and mother of late Dara Singh Sutradhar predeceased him. They left the deceased, his brother Rana and their sister Malabati. Malabati was married and the claimant No. 3 Parameswar is her son. Her husband died premature after birth of their first child, and since then she along with her minor son have been living with the deceased. There is no evidence on record to show that there is any other male or female member in the family to earn the livelihood for the claimants. They obviously had to depend upon the income of the deceased. Therefore, there cannot be any doubt that they were dependents of deceased Dara Singh for their subsistence. This is the ground reality. But the Workmen's Compensation Act defines 'dependent' in Section 2(1)(d) which does not include the brother - major or minor, the married or widowed sister and their son. In the same Section in Clause (iii)(d), it is provided 'a minor brother or an unmarried sister or a widowed sister if a minor' are dependents within the meaning of the Act. The learned Commissioner noticed that the sister Malabati is 29 years old and her son Parameswar is 6 years old. They, therefore, cannot be treated as dependents. The verification as well as the evidence of PW1 (Claimant No. 1) show that Rana Dev (brother) was 21 years old at the time of filing of the claim petition. Therefore, he cannot being a minor cannot be treated as dependent.
8. Reliance has been put on the decision of the Hon'ble Supreme Court in Rita Devi (Smt) and Ors. v. New India Assurance Co. Ltd., and Anr., reported in : (2000)ILLJ1656SC : wherein in para-15, the Hon'ble Supreme Court made an observation that objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word 'death' in the Workmen's Compensation Act is applicable to the interpretation of the word 'Death' in the Motor Vehicles Act. By referring to this judgment, it has been contended that the claimants being legal heirs may not be deprived of the benefit for choosing a wrong forum.
9. As provided in Section 167 of the Motor Vehicles Act, 1988, the claimants were entitled to choose either of the two schemes available under the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, 1923. Having chosen to opt for the Scheme under the Workmen's Compensation Act, they cannot be permitted to seek relief under the provisions of the Motor Vehicles Act which provide for payment of compensation to the legal heirs or the victim, as the case may be. Since they cannot be treated as dependents within the meaning of Section 2(1)(d) of the Act of 1923, the learned Commissioner was wrong in awarding compensation to the claimants.
10. The above proposition is supported by the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Mastan and Anr. 2005 AIR SCW 6305. The Hon'ble Supreme Court held as follows:
13. Section 143 occurs in Chapter X of the 1988 Act. Section 144 contains a non-obstinate clause stating that the provisions of the said Chapter shall have effect notwithstanding anything contained in any other provisions of the said Act or of any other law for the time being in force. Chapter X deals with liability without fault in certain cases. Chapter X, therefore, will have no application in relation to a claim made in terms of Chapter XI of the 1988 Act.
20. Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved. Therein what is required to be proved is that the workman suffered injuries or died in course of employment. The amount of compensation would be determined having regard to the nature of injuries suffered by the worker and other factors as specified in the Act. The findings of fact arrived at by the Commissioner for Workmen's Compensation are final and binding. Subject to the limitations contained in Section 30 of the 1923 Act, an appeal would be maintainable before the High Court; but to put the insurer to further disadvantage would lead to an incongruous situation.
28. The First Respondent having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer cannot now fall back upon the provisions of the 1988 Act therefore, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by Section 143 thereof.
35. On the language of Section 167 of the Motor; Vehicles Act, and going by the principle of election of remedies, a claimant opting to proceed under the Workmen's Compensation Act cannot take recourse to or draw inspiration from any of the provisions of the Motor Vehicles Act, 1988 other than what is specifically saved by Section 167 of the Act…
36. Coming to the facts of the case, the claimant has not chosen to withdraw his claim under the Workmen's Compensation Act before it reached the point of judgment, with a view to approach the Motor Accidents Claims Tribunal. What he has done is to pursue his claim under the Workmen's Compensation Act till the award was passed and also to invoke a provision of the Motor Vehicles Act, not made applicable to claims under the Workmen's Compensation Act by Section 167 of the Motor Vehicles Act. The claimant-respondent is not entitled to do so. The High Court was in error in holding that he is entitled to do so.
11. It may be said that the dispute with regard to eligibility of the claimants within the meaning of the provisions of Section 2(1)(d) of the Act of 1923 is undoubtedly a substantial question of law, particularly when the Commissioner has not addressed the issue despite being specifically pleaded in the written statement by the Insurance. Therefore, contention of the claimants that the appeal is not maintainable stands rejected.
In the result, the appeal is allowed. The award dated 29th May, 2002 passed in W.C. Case No. 217/2001 by the Commissioner, Workmen's Compensation, Kamrup at Guwahati is hereby set aside.