TaxTMI 
TaxTMI 
2005 (12) TMI 585
X X X X Extracts X X X X
X X X X Extracts X X X X
....lting in sufferance of injuries by the First Respondent which led to his disability to the extent of 45 to 50%. He initiated a proceeding under the 1923 Act. The Commissioner for Workmen's Compensation, Davangere, by an order dated 30.04.1997 awarded a sum of Rs. 2,70,264/- by way of compensation and interest of Rs. 33,230/- to the workman payable by the Appellant herein. 4. Aggrieved by and dissatisfied therewith the Appellant preferred an appeal before the High Court under Section 30(1) of the 1923 Act, which was dismissed by the High Court on the premise that the Appellant was not entitled to urge any ground therein which was not available to it in terms of the 1988 Act. In support of the said finding, reliance was placed upon a Full Bench judgment of the High Court dated 17.12.2003 in MFA Nos. 1910 of 1997 etc. The question referred to the Full Bench of the High Court for its consideration was as under : "Whether the restrictions on the defences available to an insurance company in terms of Section 149(2) of the Motor Vehicles Act have any application to the proceedings under the workmen's Compensation Act ?" 5. Upon consideration of various provisions of the 1988 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the modifications mentioned therein. 8. The Commissioner for Workmen's Compensation has been conferred with various powers including the power to record evidence. He has also the power to refer any question of law for the decision of the High Court. The appeal against an order passed by a Commissioner lies before the High Court on a substantial question of law involved. 9. Applicability of the 1988 Act in a proceeding under the 1923 Act is contained in Section 143 of the 1988 Act, which reads as under : "143. Applicability of Chapter to certain claims under Act 8 of 1923.- The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in sub-section (1) of Section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act." 10. 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 othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular." 13. Interpretation of this provision fell for consideration before this Court in National Insurance Company Ltd. v. Baljit Kaur [(2004) 2 SCC 1] wherein the principles have been laid down in some details and thus, it is not necessary to reiterate the same herein once over again. 14. However, despite Section 149(2) of the 1988 Act, the Parliament was of the opinion that if any circumstance arises as enumerated in Section 170 thereof, an insurer may be granted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but to put the insurer to further disadvantages would lead to an incongruous situation. 18. An insurer, subject to the terms and conditions of contract of insurance, is bound to indemnify the insured under the 1923 Act as also the 1988 Act. But as noticed hereinbefore, keeping in view the nature and purport of the two statutes, the defences which can be raised by the insurer being different, the scope and ambit of appeal are also different. 19. Under the 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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." 24. [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 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 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 1....