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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    937       OF 2013 (Arising out of SLP (C) No.1138 of 2012)

Oriental Insurance Co. Ltd. … Appellant

Versus

Dyamavva & Ors. … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. Yalgurdappa  B.  Goudar  was  employed  as  a  Pump  Operator  in  the  

Mechanical Engineering Department, and posted in the Old Power House, of the  

Mormugao Port Trust, Mormugao (for short, ‘the Port Trust’).  While discharging  

his  duties  in  his  aforesaid  capacity  during  the course  of  the second shift  on  

19.4.2003, while pillion riding on a motorcycle bearing registration mo.GA 02 L  

8479, he was hit by a tipper bearing registration no.TM 07 V 4548.  Consequent  

upon  the  injury  suffered  by  Yalgurdappa  B.  Goudar  in  the  said  accident,  

Yalgurdappa B. Goudar died on the spot.  The aforesaid tipper was insured with  

the Oriental Insurance Company, i.e., the appellant herein.   

2. The  most  important  factual  aspect  in  the  present  controversy  is,  that  

Dayamavva  Yalgurdappa  the  widow,  and  the  dependants  of  Yalgurdappa  B.  

Goudar, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988

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on 30.5.2003.  Through the aforesaid claim petition, the widow and the children of  

the deceased Yalgurdappa B. Goudar sought compensation on account of the  

motor accident in the course whereof, the husband/father of the claimants had  

lost his life.

3. It is not a matter of dispute, that the Port Trust addressed a communication  

dated 4.11.2003 to the Workmen’s Compensation Commissioner, Goa intimating  

him of  the motor  accident  referred  to  hereinabove.   Simultaneously,  with  the  

aforesaid intimation, the Port Trust deposited an amount of Rs.3,26,140/- with the  

Workmen’s  Compensation  Commissioner,  as  compensation  payable  to  the  

dependants  of  the  deceased  Yalgurdappa  B.  Goudar  under  the  Workmen’s  

Compensation  Act,  1923.   Consequent  upon  the  receipt  of  the  aforesaid  

intimation (as also, the deposit of compensation), the Workmen’s Compensation  

Commissioner issued a notice to the dependants of the deceased Yalgurdappa B.  

Goudar.   Consequent  upon  the  service  of  notice  on  the  dependants  of  the  

deceased, hearing in the matter pertaining to disbursement of compensation to  

the  dependants  of  Yalgurdappa  B.  Goudar,  was  fixed  for  20.4.2004.   On  

20.4.2004 Dyamavva Yalgurdappa, the widow of the deceased Yalgurdappa B.  

Goudar, appeared before the Workmen’s Compensation Commissioner and her  

statement  was  recorded  by  the  Commissioner.   In  her  statement  she  

acknowledged the demise of her husband in a motor accident, while working in  

the employment of the Port Trust, in the second shift on 19.4.2003.  She also  

placed on record the fact, that she had two sons and a daughter who were also  

dependents of the deceased.  Based on her statement, she prayed for the release  

of  the  compensation  deposited  by  the  Port  Trust,  with  the  Workmen’s

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Compensation  Commissioner.   Since  the  claim  raised  by  Dyamavva  

Yalgurdappa,  widow  of  Yalgurdappa  B.  Goudar  was  not  contested  by  the  

employer,  the  amount  of  Rs.3,26,140/-  deposited  by  the  Port  Trust  with  the  

Workmen’s Compensation Commissioner, was ordered to be mainly released to  

the Dyamavva Yalgurdappa, widow of Yalgurdappa B. Goudar, and partly to the  

daughter of the deceased Yalgurdappa B. Goudar.  Out of the aforesaid amount,  

the daughter was held to be entitled to a sum of Rs.50,000/-.  The order dated  

29.4.2004 is available on the record of this case.  A elevant extract of the same is  

reproduced  hereunder,  which  fully  substantiates  the  factual  position  narrated  

hereinabove :

“The opp. Party Mormugao Port Trust vide their  letter dated 04.11.2003  had informed that Shri Gowder Yellagurdappa, ex-Pump Operator who was  posted  at  the Old  Power  House while  working  on the second shift  on  19.04.2003 met with an accident with a tipper truck and succumbed to the  injuries sustained.  The management further mentioned the date of birth of  the  deceased  employee  was  01.04.1956  and  his  monthly  salary  was  Rs.9,276/-  at  the  time  of  his  death  and  in  terms  of  Workmen’s  Compensation Act, 1923, they deposited an amount of Rs.3,26,140/- in this  office towards compensation to be paid to the dependants of the deceased  employee.

Notice was served on the parties and the hearing was fixed on 20.04.2004.  During the course of hearing on 20.04.2004 the applicant stated that she is  the wife  of  late  Yellagurdappa Goudar.   Her  husband was  working  for  Mormugao Port Trust in Mechanical Engineering Department as a Pump  Operator.  On 19.04.2003 her husband met with an accident.  He was hit  by a truck and succumbed to the injuries.  He did on the spot.  Besides her,  she has got two sons viz., Shri Balappa Y. Goudar and Shri Basavraj Y.  Goudar aged 21 years and 19 years respectively and one daughter Miss  Yallava Y. Goudar, daughter aged 20 years who were dependants on the  earning of her husband.  She further stated that she is aware that the Opp.  Party has deposited an amount of Rs.3,26,140/- with this Authority which  according  to  her  the  amount  has  been  properly  worked  out  as  per  Workmen’s Compensation Act.  She prayed that the said amount may be  awarded to her and children as per the Workmen’s Compensation Act.

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The representatives of the Opp. Party Mr. S.V. Verekar, Labour Officer,  who was present during the course of hearing on 20.04.2004 did not desire  to cross the Applicant.

After having verified the records produced in the course of hearing and the  fact that the Opp.Party deposited the amount accepting the liability to pay  the  compensation,  I  hereby  order  to  pay  the  compensation  to  the  dependants of late Yellagurdappa Goudar in the following manner:

…..”

Consequently, the aforesaid compensation under the Workmen’s Compensation  

Act, 1923 came to be released to the widow and daughter of Yalgurdappa B.  

Goudar.

4. Besides  the  compensation  determined  under  the  Workmen’s  

Compensation  Act,  1923,  the  claim  raised  by  Dyamavva  Yalgurdappa  under  

Section 166 of the Motor Vehicles Act, 1988 was independently determined by  

the Motor Accident Claims Tribunal, Bagalkot.  Vide an award dated 15.7.2008,  

the said Motor Accident Claims Tribunal awarded the claimants compensation of  

Rs.11,44,440/-.  Out of the aforesaid compensation, the Motor Accident Tribunal  

ordered a deduction of Rs.3,26,140/-, (i.e., the amount which had been disbursed  

to  the  claimants  by  the  Workmen’s  Compensation  Commissioner,  vide  order  

dated 29.4.2004).  In the aforesaid view of the matter, a sum of Rs.8,18,300/-  

was ordered to be released to the claimants.

5. The order passed by the Motor Accident Claims Tribunal, Bagalkot, dated  

15.7.2008  was  assailed  by  the  Oriental  Insurance  Company  Ltd,  i.e.,  the  

appellant herein, before the High Court of Karnataka Circuit Bench at Dharwad  

(hereinafter referred to as the ‘High Court’).  By its order dated 14.9.2011, the  

High Court affirmed the compensation awarded to the claimants by the Motor  

Accident  Claims Tribunal,  Bagalkot.   Through the instant appeal,  the Oriental

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Insurance Company Ltd. has assailed the orders dated 15.7.2008 and 14.9.2011  

passed by the Motor Accidental Claims Tribunal, Bagalkot, and the High Court  

respectively,  awarding  compensation  to  the  dependants  of  Yalgurdappa  B.  

Goudar under Section 166 of the Motor Vehicles Act, 1988.   

6. The challenge raised  by the appellant-Insurance Company is  based on  

Section  167  of  the  Motor  Vehicles  Act,  1988,  which  is  being  extracted  

hereinunder:

“167. Option regarding claims for compensation in certain cases.— Notwithstanding anything contained in the Workmen's Compensation Act,  1923 (8 of 1923) where the death of, 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  X  claim  such  compensation under either of those Acts but not under both.”

It is the vehement contention of the learned counsel for the appellant, that the  

respondents  had  been  awarded  compensation  under  the  Workmen’s  

Compensation Act, 1923, and as such, they were precluded from raising a claim  

for compensation under the Motor Vehicles Act, 1988.  Relying on Section 167,  

extracted above., it was pointed out, that an option was available to the claimants  

to seek compensation either under the Workmen’s Compensation Act, 1923, or  

the Motor Vehicles Act, 1988.   The claimants, according to learned counsel, had  

exercised  the  said  option  to  seek  compensation  under  the  Workmen’s  

Compensation Act,  1923.  In this  behalf  it  was pointed out,  that the claimants  

having accepted compensation under the Workmen’s Compensation Act, 1923,  

were  precluded  by  Section  167  of  the  Motor  Vehicles  Act,  1988,  to  seek  

compensation (on account of the same accident), under the Motor Vehicles Act,  

1988.   In order  to  buttress the aforesaid  submission,  learned counsel  for  the

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appellant-Insurance Company has placed reliance on a decision rendered by this  

Court in National Insurance Company Ltd. V. Mastan & Anr., (2006) 2 SCC 641.  

Pointed reliance was placed on the following observations recorded therein:

“33. On the establishment of a Claims Tribunal in terms of Section 165 of  the Motor Vehicles Act, 1988, the victim of a motor accident has a right to  apply  for  compensation in terms of  Section 166 of  that Act  before that  Tribunal.  On the establishment of the Claims Tribunal, the jurisdiction of  the Civil Court to entertain a claim for compensation arising out of a motor  accident, stands ousted by Section 175 of that Act. Until the establishment  of the Tribunal, the claim had to be enforced through the Civil  Court as a  claim in tort. The exclusiveness of the jurisdiction of the Motor Accidents  Claims Tribunal is taken away by Section 167 of the Motor Vehicles Act in  one  instance,  when  the  claim  could  also  fall  under  the  Workmen's  Compensation Act, 1923. That Section provides that death or bodily injury  arising out of a motor accident which may also give rise to a claim for  compensation under the Workmen's Compensation Act, can be enforced  through the authorities under that Act, the option in that behalf being with  the victim or his representative. But Section 167 makes it clear that a claim  could not be maintained under both the Acts. In other words, a claimant  who  becomes  entitled  to  claim  compensation  both  under  the  Motor  Vehicles Act 1988 and under the Workmen's Compensation Act because of  a motor vehicle accident has the choice of proceeding under either of the  Acts before the concerned forum. By confining the claim- to the authority or  Tribunal  under  either  of  the  Acts,  the  legislature  has  incorporated  the  concept of election of remedies, insofar as the claimant is concerned. In  other words, he has to elect whether to make his claim under the Motor  Vehicles Act 1988 or under the Workmen's Compensation Act 1923. The  emphasis  in  die  Section  that  a  claim  cannot  be  made  under  both  the  enactments, is a further reiteration of the doctrine of election incorporated  in the scheme for claiming compensation. The principle "where, either of  two alternative tribunals are open to a litigant, each having jurisdiction over  the  matters  in  dispute,  and  he  resorts  for  his  remedy  to  one  of  such  tribunals  in  preference  to  the  other,  he  is  precluded,  as  against  his  opponent,  from any subsequent recourse to the latter"  [see R.V. Evans  (1854) 3 E & B 363] is fully incorporated in the scheme of Section 167 of  the  Motor  Vehicles  Act,  precluding  the  claimant  who  has  invoked  the  Workmen's Compensation Act from having resort to the provisions of the  Motor  Vehicles  Act,  except  to  the limited  extent  permitted  therein.  The  claimant having resorted to the Workmen's Compensation Act, is controlled  by the provisions of that Act subject only to the exception recognized in  Section 167 of the Motor Vehicles Act.

34. 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

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inspiration from any of the provisions of the Motor Vehicles Act 1988 other  than what is specifically saved by Section 167 of the Act. Section 167 of  the Act gives a claimant even under the Workmen's Compensation Act, the  right to invoke the provisions of Chapter X of the Motor Vehicles Act 1988.  Chapter X of the Motor Vehicles Act 1988 deals with what is known as 'no  fault" liability in case of an accident. Section 140 of the Motor Vehicles Act,  1988  imposes  a  liability  on  the  owner  of  the  vehicle  to  pay  the  compensation fixed therein, even if no fault is established against the driver  or owner of the of the vehicle. Sections 141 and 142 deal with particular  claims on the basis of no fault liability and Section 143 re-emphasizes what  is emphasized by Section 167 of the Act that the provisions of Chapter X of  the Motor Vehicles Act, 1988, would apply even if the claim is made under  the  Workmen's  Compensation  Act.  Section  144  of  the  Act  gives  the  provisions of Chapter X of the Motor Vehicles Act 1988 overriding effect.”

Based  on  the  observations  extracted  hereinabove,  it  was  the  vehement  

contention  of  the  learned  counsel  for  the  appellant,  that  the  respondents-

claimants, having accepted compensation under the Workmen’s Compensation  

Act, 1923, must be deemed to have exercised their option to seek compensation  

under the Workmen’s Compensation Act,  1923. As such, they could not once  

again seek compensation under Section 166 of the Motor Vehicles Act, 1988.   

7. In  order  to  succeed  before  this  Court,  it  would  be  necessary  for  the  

appellant to establish, that the respondents-claimants had exercised their option  

to  seek  compensation  under  the  Workmen’s  Compensation  Act,  1923,  and  

therefore,  were  precluded  from  seeking  compensation  yet  again  under  the  

provisions of the Motor Vehicles Act, 1988.  For, it is only when such an option  

has been exercised, that the provisions of Section 167 of the Motor Vehicles Act,  

1988,  would  disentitle  the  claimant(s)  from  seeking  compensation  under  the  

Motor Vehicles Act, 1988.   

8. For determining the legal as well as the factual position emerging out of the  

issue  canvassed  at  the  hands of  the  learned  counsel  for  the  appellant,  it  is

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necessary for us to determine the ambit and scope of Sections 8 and 10 of the  

Workmen’s Compensation Act, 1923.  The aforesaid provisions are accordingly  

being extracted hereunder :

“8. Distribution of compensation.—(1) No payment of compensation in  respect of a workman whose injury has resulted in death, and no payment  of a lump sum as compensation to a woman or a person under a legal  disability, shall be made otherwise than by deposit with the Commissioner,  and no such payment made directly by an employer shall be deemed to be  a payment of compensation:   Provided that, in the case of a deceased workman, an employer may make  to  any dependant  advances on account of  compensation of  an amount  equal  to  three  months'  wages  of  such workman and so  much of  such  amount as does not exceed the compensation payable to that dependant  shall  be  deducted  by  the  Commissioner  from  such  compensation  and  repaid to the employer.   (2) Any other sum amounting to not less than ten rupees which is payable  as compensation may be deposited with the Commissioner on behalf of the  person entitled thereto.   (3)  The receipt  of  the  Commissioner  shall  be  a  sufficient  discharge  in  respect of any compensation deposited with him.   (4) On the deposit of any money under sub-section (1), as compensation in  respect  of  a  deceased  workman]  the  Commissioner shall,  if  he  thinks  necessary,  cause  notice  to  be  published  or  to  be  served  on  each  dependant in such manner as he thinks fit, calling upon the dependants to  appear  before  him  on  such  date  as  he  may  fix  for  determining  the  distribution of the compensation. If the Commissioner is satisfied after any  inquiry which he may deem necessary, that no dependant exists, he shall  repay the balance of the money to the employer by whom it was paid. The  Commissioner shall,  on application by the employer, furnish a statement  showing in detail all disbursements made.   (5)  Compensation  deposited  in  respect  of  a  deceased  workman shall,  subject  to  any  deduction  made  under  sub-section  (4),  be  apportioned  among the dependant of the deceased workman or any of them in such  proportion as the Commissioner thinks fit, or may, in the discretion of the  Commissioner, be allotted to any one dependant.   (6) Where any compensation deposited with the Commissioner is payable  to  any  person,  the  Commissioner  shall,  if  the  person  to  whom  the  compensation  is  payable  is  not  a  woman  or  a  person  under  a  legal

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disability, and may, in other cases, pay the money to the person entitled  thereto.   (7) Where any lump sum deposited with the Commissioner is payable to a  woman or a person under a legal  disability,  such sum may be invested,  applied or otherwise dealt  with for the benefit  of the woman, or of such  person during his  disability,  in  such manner as  the Commissioner  may  direct; and where a half-monthly payment is payable to any person under a  legal  disability,  the  Commissioner  may,  of  his  own  motion  or  on  an  application made to him in this behalf,  order that the payment be made  during  the disability  to  any dependant  of  the workman or  to  any other  person,  whom  the  Commissioner  thinks  best  fitted  to  provide  for  the  welfare of the workman.   (8)  Where  an application  made to  him in  this  behalf  or  otherwise,  the  Commissioner is satisfied that, on account of neglect of children on the part  of  a  parent  or  on account of  the variation of  the circumstances of  any  dependant or for any other sufficient cause, an order of the Commissioner  as to the distribution of any sum paid as compensation to as to the manner  in which any sum payable to any such dependant is to be invested, applied  or otherwise dealt with, ought to be varied, the Commissioner may make  such orders for the variation of the former order as he thinks just in the  circumstances of the case:   Provided that no such order prejudicial to any person shall be made unless  such person has been given an opportunity of showing cause why the order  should not be made or shall be made in any case in which it would involve  the repayment by a dependant of any sum already paid to him.   (9)  Where the Commissioner varies any order under sub-section (8)  by  reason of the fact that payment of compensation to any person has been  obtained by fraud, impersonation or other improper means, any amount so  paid  to  or  on behalf  of  such person may  be  recovered  in  the manner  hereinafter provided in section 31.”

xxx xxx xxx

10. Notice  and  Claim.—(1)  No  claim  for  compensation  shall  be  entertained by a Commissioner  unless notice of  the accident  has been  given in the manner hereinafter provided as soon as practicable after the  happening thereof and unless the claim is preferred before him within two  years]  of  the occurrence of  the accident  or  in  case of  death within two  years] from the date of death:

Provided that where the accident is the contracting of a disease in respect  of which the provisions of sub-section (2) of section 3 are applicable the  accident shall be deemed to have occurred on the first of the days during

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which the workman was continuously absent from work in consequence of  the disablement caused by the disease:   Provided further that in case of partial disablement due to the contracting of  any such disease and which does not force the workman to absent himself  from work  the  period  of  two  years  shall  be  counted  from the  day  the  workman gives notice of the disablement to his employer:   Provided  further  that  if  a  workman who,  having  been  employed  in  an  employment  for  a  continuous period,  specified  under sub-section (2)  of  section 3 in respect of that employment, ceases to be so employed and  develops  symptoms  of  an  occupational  disease  peculiar  to  that  employment within two years of the cessation of employment, the accident  shall be deemed to have occurred on the day on which the symptoms were  first detected:   Provided further that the want of or any defect or irregularity in a notice  shall not be a bar to the entertainment of a claim—   

(a)  if  the claim is preferred in respect of  the death of  a workman  resulting from an accident which occurred on the premises of  the  employer,  or  at  any place where the workman at  the time of  the  accident was working under the control  of the employer or of any  person employed by him, and the workman died on such premises or  at such place, or on any premises belonging to the employer, or died  without  having left  the vicinity  of  the premises or  place  were the  accident occurred, or

 (b) if the employer or any one of several employers or any person  responsible to the employer for the management of any branch of the  trade or business in which the injured workman was employed] had  knowledge of the accident from any other source at or about the time  when it occurred:

 Provided  further  that  the Commissioner  may entertain  and decide  any  claim  to  compensation  in  any  case  notwithstanding  that  the  notice has not been given, or the claim has not been preferred, in  due time as provided in this sub-section, if  he is satisfied that the  failure so to give the notice or prefer the claim, as the case may be,  was due to sufficient cause.

 (2) Every such notice shall  give the name and address of the person  injured and shall state in ordinary language the cause of the injury and the  date on which the accident happened, and shall be served on the employer  or upon any one of several employers, or upon any person responsible to  the employer for the management of any branch of the trade or business in  which the injured workman was employed.  

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(3) The  State  Government  may  require  that  any  prescribed  class  of  employers  shall  maintain  at  these  premises  at  which  workmen  are  employed a notice book,  in  the prescribed form, which shall  be readily  accessible at all reasonable times to any injured workman employed on the  premises and to any person acting bona fide on his behalf.   (4) A notice  under this  section may be served by delivering it  at,  or  sending it by registered post addressed to, the residence or any office or  place of business of the person on whom it is to be served, or, where a  notice book is maintained, by entry in the notice book.”

9. Sub-sections (1) to (3) of Section 8 extracted above, leave no room for any  

doubt, that when a workman during the course of his employment suffers injuries  

resulting in his death, the employer has to deposit  the compensation payable,  

with  the  Workmen’s  Compensation  Commissioner.   Payment  made  by  the  

employer directly to the dependants is not recognized as a valid disbursement of  

compensation.   The  procedure  envisaged  in  Section  8  of  the  Workmen’s  

Compensation Act,  1923, can be invoked only by the employer for depositing  

compensation with the Workmen’s Compensation Commissioner.   Consequent  

upon  such  “suo  motu”  deposit  of  compensation  (by  the  employer)  with  the  

Workman’s Compensation Commissioner, the Commissioner may (or may not)  

summon the dependants of the concerned employee, to appear before him under  

sub-section  (4)  of  Section  8  aforesaid.   Having  satisfied  himself  about  the  

entitlement  (or  otherwise)  of  the  dependants  to  such  compensation,  the  

Commissioner  is  then  required  to  order  the  rightful  apportionment  thereof  

amongst  the  dependants,  under  sub-sections  (5)  to  (9)  of  Section  8  of  the  

Workmen’s Compensation Act, 1923.  Surplus, if any, has to be returned to the  

employer.

10. As against the aforesaid,  where an employer has not suo-motu initiated  

action  for  payment  of  compensation  to  an  employee  or  his/her  dependants,

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inspite of an employee having suffered injuries leading to the death, it is open to  

the  dependants  of  such employee,  to  raise  a  claim  for  compensation  under  

Section  10  of  the  Workmen’s  Compensation  Act,  1923.   Sub-section  (1)  of  

Section 10 prescribes the period of limitation for making such a claim as two  

years, from the date of occurrence (or death).  The remaining sub-sections of  

Section  10  of  the  Workmen’s  Compensation  Act,  1923  delineate  the  other  

procedural requirements for raising such a claim.

11. Having  perused the aforesaid  provisions  and determined their  effect,  it  

cleanly  emerges,  that  the  Port  Trust  had  initiated  proceedings  for  paying  

compensation to the dependants of the deceased Yalgurdappa B. Goudar “suo  

motu” under  Section  8  of  the  Workmen’s  Compensation  Act,  1923.   For  the  

aforesaid purpose, the Port Trust had deposited a sum of Rs.3,26,140/- with the  

Workmen’s  Compensation  Commissioner  on  4.11.2003.   Thereupon,  the  

Workmen’s Compensation Commissioner, having issued noticed to the claimants  

(dependants of the deceased Yalgurdappa B. Goudar), fixed 20.4.2004 as the  

date  of  hearing.   On  the  aforesaid  date,  the  statement  of  the  widow  of  

Yalgurdappa  B.  Goudar,  namely,  Dyamavva  Yalgurdappa  was  recorded,  and  

thereafter,  the  Workmen’s  Compensation  Commissioner  by  an  order  dated  

29.4.2004 directed the release of a sum of Rs.3,26,140/- to be shared by the  

widow of the deceased and his daughter in definite proportions.

12. The  issue  to  be  determined  by  us  is,  whether  the  acceptance  of  the  

aforesaid compensation would amount to the claimants having exercised their  

option,  to seek compensation under the Workmen’s Compensation Act,  1923.  

The procedure under Section 8 aforesaid (as noticed above) is initiated at the

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behest  of  the  employer  “suo  motu”,  and  as  such,  in  our  view  cannot  be  

considered  as  an  exercise  of  option  by  the  dependants/claimants  to  seek  

compensation under the provisions of the Workmen’s Compensation Act, 1923.  

The position would have been otherwise, if the dependants had raised a claim for  

compensation under Section 10 of the Workmen’s Compensation Act, 1923.  In  

the said eventuality, certainly compensation would be paid to the dependants at  

the instance (and option) of the claimants.  In other words, if the claimants had  

moved an application under Section 10 of  the Workmen’s Compensation Act,  

1923,  they  would  have been deemed to  have exercised  their  option  to  seek  

compensation under the provisions of the Workmen’s compensation Act.  Suffice  

it to state that no such application was ever filed by the respondents-claimants  

herein under Section 10 aforesaid.  In the above view of the matter, it  can be  

stated that the respondents-claimants having never exercised their option to seek  

compensation  under  Section  10  of  the  Workmen’s  Compensation  Act,  1923,  

could not be deemed to be precluded from seeking compensation under Section  

166 of the Motor Vehicles Act, 1988.

13. Even though the  aforesaid  determination,  concludes  the issue  in  hand,  

ambiguity if at all, can also be resolved in the present case, on the basis of the  

admitted factual position. The first act at the behest of the respondents-claimants  

for seeking compensation on account of the death of Yalgurdappa B. Goudar,  

was by way of filing a claim petition under Section 166 of the Motor Vehicles Act,  

1988  on  30.5.2003.   The  aforesaid  claim  petition  was  the  first  claim  for  

compensation raised at the hands of the respondents-claimants.  If the question  

raised by the appellant has to be determined with reference to Section 167 of the

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Motor Vehicles Act, 1988, the same is liable to be determined on the basis of the  

aforesaid claim application filed by the respondents-claimants on 30.5.2003.  The  

compensation deposited by the Port  Trust  with the Workmen’s Compensation  

Commissioner  for  payment  to  the  respondents-claimants  was  much later,  on  

4.11.2003.   The aforesaid  deposit,  as  already  noticed  above,  was not  at  the  

behest of the respondents-claimants, but was based on a  unilateral “suo motu”  

determination of the employer (the Port Trust) under Section 8 of the Workmen’s  

Compensation Act, 1923.  The first participation of Dayamavva Yalgurdappa, in  

the proceedings initiated by the Port Trust under the Workmen’s Compensation  

Act,  1923,  was  on  20.4.2004.   Having  been  summoned  by  the  Workmen’s  

Commissioner,  she  got  her  statement  recorded  before  the  Commissioner  on  

20.4.2004.  But well before that date, she (as well as the other claimants) had  

already filed a claim petition under Section 166 of the Motor Vehicles Act, 1988,  

on  30.5.2003.   Filing  of  the  aforesaid  claim  application  under  Section  166  

aforesaid, in our view constitutes her (as well as, that of the other dependants of  

the deceased) option, to seek compensation under the Motor Vehicles Act, 1988.  

The  instant  conclusion  would  yet  again  answer  the  question  raised  by  the  

appellant herein, under Section 167 of the Motor Vehicles Act, 1988, in the same  

manner, as has already been determined above.

14. In the aforesaid  view of  the matter,  we hereby affirm the determination  

rendered by the Motor Accidents Claims Tribunal, Bagalkot, and the High Court in  

awarding compensation quantified at Rs.11,44,440/- to the claimant.  The Motor  

Accidents  Claims  Tribunal,  Bagalkot,  as  also,  the  High  Court,  ordered  a  

deduction therefrom of a sum of Rs.3,26,140/- (paid to the claimants under the

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Workmen’s  Compensation Act,  1923).  The said  deduction gives  full  effect  to  

Section  167  of  the  Motor  Vehicles  Act,  1988,  inasmuch  as,  it  awards  

compensation to the respondents-claimants under the enactment based on the  

option first exercised, and also ensures that, the respondents-claimants are not  

allowed dual benefit under the two enactments.   

15. For  the reasons recorded  hereinabove,  we  find  no merit  in  the  instant  

appeal.  The judgment rendered by the High Court is affirmed. The instant appeal  

is accordingly dismissed.

…..…………………………….J. (Dr. B.S. Chauhan)

…..…………………………….J. (Jagdish Singh Khehar)

New Delhi; February 5, 2013