ORDER
B. Seshasayana Reddy, J.
1. This Civil Miscellaneous Appeal is directed against the order dated 23-3-2002 passed in W.C. No. 41 of 2000 on the file of Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Hyderabad n, whereby the learned Commissioner for Workmen's Compensation dismissed the application filed by the appellant/applicant claiming compensation for the death of her husband S. Mallesh in the road accident occurred on 27.3.1998.
2. The appellant is the applicant before the Commissioner for Workmen' s Compensation-cum-Assistant Commissioner of Labour, Hyderabad-II She filed the application under Rule 20 of A.P. Workmen's Compensation Act, 1923 claiming compensation of Rs. 2.50 lakhs for the death of her husband S. Mallesh, It is the case of the appellant/ applicant that her husband S. Mallesh was a driver of the lorry bearing No. ADT 6676 owned by R-1 and insured with R-2; that on 27.3.1998 the lorry involved in the accident and thereby her husband sustained injuries and died. It is her further case that her husband was earning Rs. 3,000/- per month and was aged 28 years as on the date of the accident. She claimed compensation of Rs. 2.50 lakhs against R-1 and R-2 who are the owner and the insurer of the vehicle respectively. Learned Commissioner dismissed the application of the appellant/ applicant on the ground that the mother of the deceased (R-3 herein) has filed application before the Motor Vehicle Accident Claims Tribunal, Nalgonda under Section 140 of M.V. Act claiming compensation of Rs. 50,000/- under no fault liability. There seems to be no dispute that R-3 who is the mother of the deceased filed application before the Motor Vehicle Accident Claims Tribunal, Nalgonda claiming compensation of Rs. 50,000/- under no fault liability and the learned Tribunal allowed the application and granted compensation of Rs. 50,000/-.
3. The short question mooted in this appeal is 'can a claim be made for compensation under the Workmen's Compensation Act, 1923 (for short WC Act) after one of the legal heirs of the deceased invoked the jurisdiction under Section 140 of M.V. Act, 1988'. The appellant/applicant was not a party to the proceedings before the Motor Vehicle Accident Claims Tribunal, Nalgonda. R-3 herein who is the mother of the deceased filed petition before the Motor Vehicle Accidents Claims Tribunal claiming compensation under no fault liability. It is an undisputed fact that the accident was due to the negligent driving of the deceased himself.
4. Learned Counsel for the appellant/ applicant contends that the legal heirs of the deceased in the circumstances of the case should claim compensation under W.C. Act and not under M.V. Act. He further contends that the claim made by the mother of the deceased before the Tribunal is not a claim recognizable under law and therefore there is no bar in making a claim by the appellant/ applicant who is the wife of the deceased under W.C. Act. He placed reliance on the following decisions in support of his contentions:
(1) D. Jayamma v. S. Govindaswamy, 1982 ACJ 467.
(2) Arun Kumar Rastogi v. Chandra Kumari, 1987 ACJ 149
(3) Neelabai Mahadeo Salunkhe v. Shamrao Tatoba Pawar, 1995 ACJ 36
(4) New India Assurance Company Limited v. Pennamma Kurien, 1995 ACJ 760
(5) United India Insurance Company Limited v. Kore Laxmi, 2003 ACJ 203
In the first cited decision the Karnataka High Court held that to make a claim under the provisions of Motor Vehicles Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act is not maintainable. It is further held that when the accident has occurred due to the rash and negligent driving of the lorry by the deceased himself, the petition for compensation is not maintainable under Section 110A of M.V. Act by his legal heirs. In the second cited decision the Allahabad High Court held that proper forum for the legal heirs of the deceased driver who is responsible for the accident would be under Workmen's Compensation Act. In the third cited decision the Bombay High Court held that Section 110-AA of the M.V. Act is applicable only where the death or bodily injury caused to a person gives rise to a valid claim for compensation under the Motor Vehicles Act, 1939, as well as a claim for compensation under Workmen's Compensation Act, 1923. The said section prohibits the applicants from making double recovery of compensation by invoking both the Acts. If the application for compensation made before the Motor Accidents Claims Tribunal is rejected on the ground that the deceased himself was negligently driving the tractor in question it can hardly be said that the death of the deceased gave rise to a valid claim for compensation under Motor Vehicles Act, 1939. If the claim for compensation made under Motor Vehicles Act could not be entertained by the Claims Tribunal for want of valid cause of action or for want of proof in respect of negligence of the driver causing the accident as alleged, Section 110-AA of the Motor Vehicles Act, 1939, can never be applied so as to bar the claim for compensation under Workmen's Compensation Act, 1923. In the fourth cited decision the High Court of Kerala at Ernakulam held that a driver who on account of his own negligence caused the accident cannot get any valid claim for compensation under the M.V. Act, except under a claim of no fault liability. If that driver had died in the accident, his legal heirs would not get any better claim under the M.V. Act. But the position would be different under W.C. Act in case of the death of the driver concerned. The employer is liable to pay compensation to his workmen when he sustained personal injuries in an accident, which arises out of and in case of his employment. In the fifth cited decision our High Court held that the foundation for laying a claim under Section 166 of M.V. Act is based on a tort, which flows from wrongful Act, neglect or default on the part of the person who is liable to pay compensation either independently or vicariously. For laying a claim under M.V. Act it is necessary to plead and prove that the accident was the result of some actionable negligence on third party.
5. R-3 who is the mother of the deceased filed petition before the Tribunal under Section 140 of M.V. Act claiming no fault liability of Rs. 50,000/-. In view of the fact that the accident took place due to the negligence of the deceased himself, the claim made by the mother of the deceased before the Tribunal could not be said that it was lawfully instituted.
6. It is necessary to look into the provisions of Section 167 of M.V. Act
'Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death 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 VII-A, claim such compensation under either of those Acts but not under both. A reading of the above referred section conveys the message that one cannot have multiple or double advantage for the same cause of action. If a person has obtained relief through the remedy provided in one of the two statutes, he is debarred from availing himself of the remedy provided in the other statute. There can be no doubt on that proposition. In order to make a claim under the provisions of M.V. Act it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence compensation under the Motor Vehicles Act is not maintainable. This point is settled by the decision of Supreme Court in Minu B. Metha and Anr. v. Balkrishna Ramachandra Nayan and Anr., 1977 ACJ 118 (SC). A Single Judge of our High Court in the fifth cited decision has considered the decisions of various High Courts and also the Supreme Court and held that the foundation for laying a claim under Section 166 of M.V. Act is based on tort which flows from wrongful act, neglect or default on the part of the person who is liable to pay compensation either independently or vicariously. For laying a claim under M.V. Act it is necessary to plead and prove that the accident was the result of some actionable negligence of third party.
7. It is no doubt true that at first blush of Section 167 of M.V. Act, 1988 it appears that claim could be made in a case like the present one either under the M.V. Act or under the W.C. Act. But a careful reading of the section reveals that an application under Section 167 of M.V. Act, 1988 would lie under M.V. Act only where the facts give rise to such a claim under the provisions of M.V. Act. In order to make a claim under the provisions of M.V. Act it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, petition for compensation under M.V. Act is not maintainable. Since the accident has occurred due to rash and negligent driving of a lorry by the deceased driver himself, the petition for compensation cannot under Section 167 of M.V. Act by his legal representatives before the Motor Accidents Claims Tribunal. In the circumstances, therefore, it is obvious that the petition for compensation under Section 167 of M.V. Act is misconceived. It has to be an application under the W.C. Act before the concerned authority. The wife of the deceased has rightly invoked the provisions of W.C. Act to claim the compensation for the death of her husband. The learned Commissioner dismissed the application of the appellant/applicant on the ground that the mother of the deceased has filed petition before the Motor Accidents Claims Tribunal claiming compensation under no fault liability. The application filed by the mother of the deceased before the Motor Accidents Claims Tribunal is not a valid one. Award of the amount by the Motor Accidents Claims Tribunal to the mother of the deceased who is R-3 herein a certain amount under no fault liability does not takeaway the jurisdiction of the authority under W.C. Act to consider the claim of the wife of the deceased and award just compensation. But it is only just and appropriate that the amount received under no fault liability is given credit while fixing the amount of compensation payable under W.C. Act since the compensation is in respect of the same accident. It must be noted that such an adjustment is envisaged in Section 141(3) of M.V. Act, 1988.
8. In view of the above discussions the only alternative left to this Court is to set aside the impugned order and remand the matter back to the Commissioner for Workmen's Compensation-cum-Assistant Commissioner of Labour, Hyderabad-II to conduct de novo enquiry and award just compensation. After arriving at the compensation, the amount awarded to R-3 who is the mother of the deceased by the Chairman, Motor Accidents Claims Tribunal, Nalgonda in O.P. No. 1005 of 1998 is to be given due credit to the amount to be awarded by the Commissioner for Workmen's Compensation-cum-Assistant Commissioner for Labour, Hyderabad-II.
9. This Civil Miscellaneous Appeal is allowed in terms of the above directions. No costs.