The Employess's Compensation Act, 1923

Section 3 (5)-

3. Employer’s liability for compensation.-

(5) Nothing herein contained shall be deemed to confer any right to compensation on a

workman in respect of any injury if he has instituted in a Civil Court a suit for damages in
respect of the injury against the employer or any other person; and no suit for damages shall
be maintainable by a workman in any Court of law in respect of any injury--
(a) if he has instituted a claim to compensation in respect of the injury before a
Commissioner; or
(b) if an agreement has been come to between the workman and his employer providing for
the payment of compensation in respect of the injury in accordance with the provisions of
this Act.

Section19. Reference to Commissioners.-
(1) If any question arises in any proceedings under this Act as to the liability of any person to
pay compensation (including any
1. Subs. by the A. O. 1937 for" G. G. in C.". 2. S. 18A ins. by Act 15 of 1933, s. 11. 3. Subs. by Act 8 of 1959, s. 13,
for" one hundred" (w. e. f. 1- 6- 1959 ). 4. Subs. by Act 64 of 1962, s. 6, for certain words (w. e. f. 1- 2- 1963 ).

question as to whether a person injured is or is not a workman) or as to the amount or

duration of compensation (including any question as to the nature or extent of disablement),
the question shall, in default of agreement, be settled by 1 a Commissioner].
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is
by or under this Act required to be settled, decided or dealt with by a Commissioner or to
enforce any liability incurred under this Act.

Section 167 in The Motor Vehicles Act, 1988

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.

Section 166 in The Motor Vehicles Act, 1988

166. Application for compensation.—
(1) An application for compensation arising out of an accident of the nature specified in sub-
section (1) of section 165 may be made—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of
the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be: Provided that where all the legal
representatives of the deceased have not joined in any such application for compensation, the
application shall be made on behalf of or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so joined, shall be impleaded as
respondents to the application. 1[(2) Every application under sub-section (1) shall be made,
at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area
in which the accident occurred, or to the Claims Tribunal within the local limits of whose
jurisdiction the claimant resides or carries on business or within the local limits of whose
jurisdiction the defendant resides, and shall be in such form and contain such particulars as
may be prescribed: Provided that where no claim for compensation under section 140 is
made in such application, the application shall contain a separate statement to that effect
immediately before the signature of the applicant.] 2[***] 3[(4) The Claims Tribunal shall
treat any report of accidents forwarded to it under sub-section (6) of section 158 as an
application for compensation under this Act.]

 The ’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 a right which he otherwise  would have had.  The
doctrine of election postulates that when two remedies  are available for the same
relief, the aggrieved party has the option to elect  either of them but not
both. .Although there are certain exceptions to the  same rule but the same has no
application in the instant case.     In Nagubai Ammal and Others v. B. Shama Rao
and Others [AIR  1956 SC 593], it was stated:

"It is clear from the above observations that the  maxim that a person cannot
’approbate and  reprobate’ is only one application of the doctrine  of election, and
that its operation must be confined  to reliefs claimed in respect of the same
transaction  and to the persons who are parties thereto."
       In C. Beepathuma and others v. Velasari Shankaranarayana  Kadambolithaya
and others [AIR 1965 SC 241], it was stated:

"The doctrine of election which has been applied  in this case is well-settled and
may be stated in the  classic words of Maitland \027 "That 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." (see Maitland’s lectures on Equity  Lecture 18) The
same principle is stated in White and Tudor’s  Leading Cases in Equity Vol. 18th
Edn. at p. 444  as follows: "Election 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."

       [See also Prashant Ramachandra Deshpande v. Maruti Balaram  Haibatti,

1995 Supp (2) SCC 539]

       Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti [(1998) 6  SCC

507] stated the law, thus:

"The doctrine of election is based on the rule of  estoppel \027 the principle that
one cannot approbate  and reprobate inheres in it. The doctrine of  estoppel by
election is one of the species of  estoppel in pais (or equitable estoppel) which is a
rule in equity. By that rule, a person may be  precluded by his actions or conduct
or silence  when it is his duty to speak, from asserting a right  which he otherwise
would have had.
The decision of this Court in  Ved Prakash Garg (supra) whereupon  Mr.
Ramasesh placed strong reliance may not have any application in the  instant
case as the liability of insurer therein arose under the 1923 Act;  where having
regard to proviso (i)(c) appended to sub-section (1) of Section  147 was
considered in the context of clause (i) of sub-section (1) of Section  11 of the
insurance policy vis-‘-vis Section 4A(3) thereof.  Such a question  does not arise
herein as the claim under the 1923 Act  vis-‘-vis Chapter XI  of the 1988 Act stand
absolutely on a different footing.

United India Insurance Co. Ltd. v. Karam Chand & Ors. (2011) 

In this case, the Court established the principle that third parties include all those who suffer as a result
of the use of the said motor vehicle in a public place. These parties could be the occupants of the vehicle
or even any other persons travelling by road or in any other vehicle who fall victim to the accident. All
these individuals are liable to be awarded compensation as a result of such an accident. The
compensation is to be awarded by the insurance company that the concerned vehicle holds a policy
with. 

One Sayed Adam filed an application before the Commissioner for Workmen's Compensation, Goa,
claiming compensation from the Inspector-General of Police, his employer, on the ground of disability
sustained by him due to the accident arising out of and in the course of his employment. He contended
that on June 4, 1979, while he was employed as a driver in Goa Police he met with an accident while he
was proceeding to Valpoi from Pale on official duty. He suffered injuries on his right cheek with a
fracture and permanent loss of the right eye. He also suffered injuries to the left rib, left thumb and left
hand. He also made requests for compensation to the Office of the Inspector-General of Police on
February 11, 1980, but there was no response.

Bombay High Court

Inspector General Of Police vs Sayed Adam on 20 September, 1996
Equivalent citations: 1998 (79) FLR 68, (1998) IIILLJ 1012 Bom
Author: V Tipnis
Bench: V Tipnis, F Rebello

Before the learned single judge, it appears that the point was raised as to the maintainability
of the application before the Commissioner for Workmen's Compensation on the basis of
interpretation of Section 110-AA of the Motor Vehicles Act, 1939, on the ground that the
applicant had sought his remedy by making a claim before the Accidents Claims Tribunal at
Panaji and had obtained an amount of Rs. 50,000 as compensation from the Insurance
Company which had insured the owner of the truck and the truck with which the jeep driven
by the applicant, collided at the relevant time.

5. That the applicant had filed a claim before the Accidents Claims Tribunal against the
owner of the truck and the insurance company and that he got compensation of Rs. 50,000
from the insurance company in full and final satisfaction of his claim against the owner of
the truck is an admitted position.

The learned Judge felt that before the Motor Accident Claims Tribunal the damages could
be claimed not for the reasons that the injury was received during the course of
employment or was arising out of the employment but only if it was the claimant's case,
that the employer or the driver of the vehicle belonging to the employer was negligent and
the injuries were the result of the negligence. Before the Motor Accidents Claims Tribunal
compensation could not have been claimed against the employer on the ground that the
injuries were sustained during the course of employment or arising out of the employment.
The causes of action were distinct in both the proceedings. The learned judge felt that the
kind of eventualities contemplated under Section 110-AA is entirely different from the one
contemplated under the Workmen's Compensation Act. The learned judge, therefore, felt
that Section 110-AA could not have any application to the facts of the instant case.

In the aforesaid case, the truck belonging to the Karnataka Rural Water Development
Company Private Limited of Bangalore was proceeding from Jalgaon towards Chalisgaon on
April 3, 1979, along the State Highway, carrying some amount of drilling equipment and
accessories as well as companys servants. One John Buryan David who was employed by
the company for its drilling operations was one of the passengers of the truck which was
being driven by one Sadanand Karbali Ramble, another employee of the company. As a
result of the accident, the truck turned turtle and John Buryan died on the spot. The parents
of the deceased, John Buryan, applied to the Motor Accidents Claims Tribunal of Jalgaon
District for compensation impleading the company and the National Insurance Company
Ltd., the insurer with whom the truck was insured. The Tribunal awarded damages to the
tune of Rs. 27,500. The insurer challenged the award before the High Court. In the said
case, the argument on behalf of the insurer was that under the terms of the policy read
with the first proviso to Sub-section (1) of Section 95 of the Motor Vehicles Act, the liability
of the insurer will be limited to that arising under the Workmen's Compensation Act. This
was the only issue before the Court and the Division Bench held that undoubtedly, an
aggrieved employee is entitled under Section 110-AA of the Motor Vehicles Act to exercise
his option regarding the forums which he can approach to prefer his claims for
compensation.

The factors to be taken into consideration in deciding his claim under the two Acts would be
different. A Tribunal would apply the principles of strict liability circumscribed by the
Workmen's Compensation Act while the Motor Vehicles Tribunal would go on the principles
of tort in determining the issue and if the workman had chosen to undertake the onerous
burden imposed upon him by the tort law, it follows that he should get the benefit of the
expression "including the liability, if any, arising under the Workmen's Compensation Act"
occurring in Clause (a) of Sub-section (2) of Section 95 of the Motor Vehicles Act which
implies that the insurer is liable for common law damages also and not only liabilities arising
under the Workmen's Compensation Act. In our opinion, the authority deals with totally
different issue and is of no help to the submission of Shri Bharne.

However, in the facts before us, the application before the Motor Accidents Claims Tribunal
was filed only against the owner of the truck and the insurer of the truck on the ground that
the owner of the truck was solely responsible and was negligent as a result of which the
accident took place and the applicant suffered injuries. By no stretch of imagination the
respondent could have claimed any compensation from his employer, namely, the
Inspector-General of Police, in those proceedings as there was no question or allegation of
negligence against the employee who was driving the jeep, who was the respondent
himself. Therefore, the claim for damages against the employer could not have been made
in those proceedings. This case, in our opinion, therefore, does not help the submission of
Shri Bharne.

The learned Judges of the Division Bench of the Allahabad High Court in the matter
of Kalawati v. Balwant Singh, (supra) lay down that by enactment of Section 110-AA, the
tortfeasor has been exempted from paying any compensation, once it is found that the
claimant has made an application for compensation under the Workmen's Compensation
Act and has been awarded compensation. In the very judgment, the learned judges have
made a specific reference to a disturbing aspect ofthis interpretation. The learned judges
observed that the claim that is made for compensation under the Motor Vehicles Act is
based on the law of torts and is claimed against a tortfeasor. The tortfeasor is liable to pay
compensation as awarded on the finding that there was a rash and negligent act on the part
of the driver of the truck. Once this finding is given, the liability of the driver, the tortfeasor
and the liability of the owner vicariously and that of the insurer arises. Once there is a
finding of rash and negligent act on behalf of the driver the claimant is entitled to
compensation under the Motor Vehicles Act. The learned judges further found that it
appears that by enactment of Section 110-AA, the tortfeasor has been exempted from
paying compensation once it is found that the claimant has made an application for
compensation under the Workmen's Compensation Act and has been awarded
compensation. The learned judges rightly felt that would it not give rise to a situation where
the tortfeasor would try to induce the claimant to go to the Commissioner under the
Workmen's Compensation Act, if need be by paying the claimant some amount to tide over,
in order that the bigger liability to pay compensation be avoided.

The poor and helpless claimant, in order to secure some amount quickly, may unknowingly
approach the Commissioner under the Workmen's Compensation Act. Similarly, a clever
employer in order to avoid his liability may induce the claimant to approach the Tribunal
under the Motor Vehicles Act. This may lead to malpractice and manipulation.

The learned judges held that in their opinion the principle of double jeopardy, as held in
some cases, will not be applicable in the present case or such cases. The respondents being
different parties and against whom there are different causes of action the principle of
double jeopardy will not be attracted. The learned judges posed the question but then
should the tortfeasor avoid his liability and go free, avoiding payment of compensation ?
They further observed that it is common knowledge that the amount of compensation
payable under the Motor Vehicles Act is substantially more than that awarded under the
Workmen's Compensation Act. The learned judges wondered could it be the real intention
of the law makers that the tortfeasor should not be made to pay compensation, say in a
case where the bread-winner of the family dies in a motor accident leaving his entire family
destitute ? However, the learned judges felt that the law needs to be suitably amended so
that the tortfeasor does not evade payment of compensation in such a situation. However,
the learned judges felt helpless and held that the law as it stands cannot be stretched to say
that in case of two different causes of action and where there are two different
respondents, the claimant could claim compensation under both the Acts. According to the
learned judges the law is clear that under Section 110-AA of the Motor Vehicles Act the
claimant is barred from seeking such compensation from more than one respondent. The
law emphasizes that he can claim compensation only under one forum and not both and
that the choice is his.

With great respect we find ourselves unable to agree with the aforesaid decision rendered
by the Division Bench of the Allahabad High Court. In our opinion from the reading of the
Section, it is clear that it is only in the cases were the tortfeasor and the employer happens
to be one and the same person that the workman or the claimant would have the choice
and it is only in such a situation that the workman or the claimant has to exercise his option,
namely, he can either proceed against his employer before the Accidents Claims Tribunal or
he can proceed against the employer under the provisions of the Workmen's Compensation
Act. So far as a tortfeasor other than the employer is concerned it is clear that the workman
can never proceed against such a tortfeasor under the provisions of the
Workmen's Compensation Act. We see absolutely no logic or reason to bar the remedy of
the claimant or the workman against his employer or the tortfeasor when in the facts and
circumstances of the case he could proceed against the tortfeasor only under the provisions
of the Motor Vehicles Act and against the employer only under the provisions of the
Workmen's Compensation Act.

The argument is that since the compensation was not being claimed against the same
person twice, but from two different persons, the bar of Section 110 AA of the M. V. Act will
not be attracted.

"Under the provisions of Workmen's Compensation Act a statutory appeal is provided under Section
30 of the Act to the High Court on the orders enumerated therein. The proviso to that Section makes
it very clear that no appeal shall lie against any order unless a substantial question of law is involved
in the appeal. As stated earlier negligence or contributory negligence of the offending vehicle is not a
ground to be considered at all while awarding compensation under the Workmen's Compensation
Act. Therefore, the insurer cannot prefer any appeal either challenging the quantum of
compensation or on any other grounds except the ground available to him under Section 149(2) of
the 1988 Act."

In arriving at the said findings, the Full Bench inter alia relied upon decisions of this Court in
National Insurance Company Ltd. v. Nicolletta Rohtagi and Others [(2002) 7 SCC 456]], United
India Insurance Co. Ltd. v. Bhushan Sachdeva & Ors. [(2002) 2 SCC 265] as also Ved Prakash Garg
v. Premi Devi and Others [(1997) 8 SCC 1]. The Full Bench apart from the finding that the
contributory negligence is not a defence on the part of the owner of the vehicle or the insurance
company further opined that the question of proving negligence does not arise under the 1923 Act.
It was further observed that the expression 'death' shall carry the same meaning both under the
1923 Act as also the 1988 Act.

Both the 1923 and 1988 Acts are self-contained Codes. Subject to the provisions made in the later
Act, Section 3 of the 1923 Act provides that if personal injury is caused to a workman by accident
arising out of and in the course of his employment, his employer shall be liable to pay compensation
in terms of the provisions of the said Chapter. Section 4 of the 1923 Act provides for amount of
compensation. Section 5 elucidates the method of calculating wages. Section 15B(ii) provides that
the 1923 Act shall apply if the persons have been sent for work abroad along with motor vehicles
subject to the modifications mentioned therein.

Section 143 occurs in Chapter X of the 1988 Act. Section 144 contains a non-obstante 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. Applicability of the provisions of the 1988 Act in a
proceeding under the 1923 Act is confined to a matter coming within the purview of Chapter X only. It
cannot be stretched any further.

Section 143 of the 1988 Act limits its applicability to the 1923 Act in a case where the liability arises
despite the fact that the accident might have taken place without any fault on the part of the driver
of the vehicle or others in control thereof. Under the 1923 Act also, as noticed hereinbefore, aworkman is
entitled to compensation even if no negligence is proved against the owner or any other
person in charge of the vehicle. It is, thus, not possible to extend the applicability of Section 143 of
the 1988 Act to include Chapter XI thereof to a claim under the 1923 Act.

In a given situation, the Accident Claims Tribunal, having regard to its rights

and liabilities vis-`-vis the third person may direct the insurance company to
meet the liabilities of the insurer, permitting it to recover the same from the
insured. The 1923 Act does not envisage such a situation.
Role of Reference by incorporation has limited application. A limited right to defend a
claim petition arising under one statute cannot be held to be applicable in a claim petition arising
under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act
makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as
contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to
have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a
claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A 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 for one. A 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 for one.
Section 167 of the 1988 Act statutorily provides for

[See also Devasahayam (Dead) By LRs. v. P. Savithramma and Others, (2005) 7 SCC 653] 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 therefor, inasmuch as
the procedure laid down under both the Acts are different save and except those which are covered
by Section 143 thereof.

The decision of this Court in Ved Prakash Garg (supra) whereupon Mr. Ramasesh placed strong
reliance may not have any application in the instant case as the liability of insurer therein arose
under the 1923 Act; where having regard to proviso (i)(c) appended to sub-section (1) of Section 147
was considered in the context of clause (i) of sub-section (1) of Section 11 of the insurance policy
vis-`-vis Section 4A(3) thereof. Such a question does not arise herein as the claim under the 1923
Act vis-`-vis Chapter XI of the 1988 Act stand absolutely on a different footing.

Ved Prakash Garg vs Premi Devi & Ors on 25 September, 1997

In these three appeals by special leave, a short ut ticklish question arises for consideration. It runs as
under :
"Where an employee receives a personal injury in a motor accident arising out of and
in the motor vehicle of the employer, whether the insurance company, which has
insured the employer-owner of the vehicle against third party accident claims under
Motor Vehicles Act, 1988 (hereinafter referred to as 'the Motor Vehicles Act') and
against claims for compensation arising out of proceedings under the Workmen's
Compensation Act, 1923 (hereinafter referred to as 'the Compensation Act') in
connection with such motor accidents, is liable to meet the awards of Workmen's
Commissioner imposing penalty and interest against the insured employer under
Section 4A(3) of the Compensation Act."

Civil Appeal Nos. 15698-15699 of 1996 These two appeals arise out of a motor accident wherein the
owner of a motor truck, appellant in these appeals, had entrusted the said trust for driving to one
Pritam Singh and has employed one Hem Raj to be a cleaner attached to the said truck. The said
truck met with an accident on 15th February 1992 near Village Pulwahai on Kumarsain Dhamla
Road in the State of Himachal Pradesh. In the said accident driver Pritam Singh and cleaner Hem
Raj died on spot. It is the case of the appellant, owner of the truck, that having come to know about
the accident on 16th February 1992 he immediately informed the Branch Manager of respondent
no.9- insurance company about the accident. According to the appellant, respondent no.9-insurance
company had insured the appellant comprehensively against all the risks arising out of the use of the
said motor vehicle.
That still the insurance company though bound to pay the heirs of the deceased-employees
appropriate compensation as per the insurance cover, did not carry out the said obligation.
On the other hand, Mr. Anil Bhandari, Sunil Bhandari, the learned counsels appearing on
behalf of the claimants vehemently submitted that doctrine of election provided for in
Section 167 of the Motor Vehicles Act, 1988 does not apply where the claimants have right to
proceed against the employer under the Workmen Compensation Act and against the
tortfeasor; a different person under the provisions of Motor Vehicles Act. They submitted
that bar is only against availing two remedies against the same employer under both the
enactments, namely, Workmen Compensation Act, 1923 and Motor Vehicles Act, 1988.

Bhakra Beas Management Board V/s Kanta Aggarwal

Gobald Motor Services Ltd. V/s R.M.K. Veluswami reported in 1958-65 ACJ 179 (SC) and Davies
V/s Power Duffryn Associated Collieries Ltd. reported in (1942) AC 601 in para 7 of the judgment
and judgment of the Supreme Court in the case of Helen C. Rebello V/s Maharashtra State Road
Transport Corporation reported in 1999 ACJ 10 (SC) in para 9 of the judgment, the Hon'ble Apex
Court held as under:
"7. In United India Insurance Co. Ltd. V/s Patricia Jean Mahajan, 2002 ACJ 1441
(SC), it was inter alia, observed as follows:

Gobald Motor Services Ltd. v. R.M.K.

Himachal Pradesh High Court in the case of Smt. Gayatri Devi V/s Tani Ram reported in AIR
1976 HP 75 as under:

"5.......... Section 110-A of Motor Vehicles Act, 1939 is applicable to a person who has two
remedies against the joint tort-feasor (s) while object of Sec. 3(5) of the
Workmen's Compensation Act,. 1923, is to save the employer from double jeopardy,
meaning thereby, from multiplicity of litigation, one under the Workmen's Compensation
Act, 1923 and other under the Motor Vehicles Act, 1939. Where a claimant can avail one
remedy against the employer, he is not debarred from raising/claiming compensation under
the Motor Vehicles Act, 1939, against the tort-feasor.

Present is a case where claimants are receiving compensation from the

employer who is statutorily bound to pay the same on the death of deceased
being his Master. This is separate relationship and liability and has nothing to
do with the liability of a tort-feasor under the Motor Vehciles Act, 1930.
the principle of double jeopardy, as held in some cases, will not be applicable in the present
case or such cases. The respondents being different parties and against whom there are
different causes of action the principle of double jeopardy will not be attracted.

The issue in the present case does not involve the question of duplication of compensation
but it involves two sets of compensation which are payable virtually under two different
heads even if they are under the same policy.

Since the benefits accruing and flowing from two different enactments flow in two different
streams and such claim is made against two different parties; employer in one case and
tort-feasor other than employer in another case, one compensation does not militate or
offend against other compensation. The claimants also are rightly entitled to both the
compensations in such cases and one cannot be set off or deducted from the other.

Section 143 of the 1988 Act has a limited applicability so far as the provisions of the 1923 Act
are concerned. Where a liability arises despite the fact that accident might have taken place
without any fault of the driver of the vehicle and others under control thereof, the insurer may
have a liability, whereas under 1923 Act a "workman" would be entitled to compensation, even
if no negligence is proved against the owner or the person in charge of the vehicle; but the
applicability of Section 143 of the 1988 Act, therefore, cannot be extended to one made under
Chapter XI thereof. In a case of this nature, provision of Section 167 of the 1988 Act would be of
no significance.