ORIENTAL INSURANCE CO. LTD.versusDYAMAWA & ORS.

                      [2013] 1 S.C.R. 739


              ORIENTAL INSURANCE CO. LTD.                           A
                                v.
                      DYAMAWA & ORS.
                (Civil Appeal No. 937 of 2013)
                      FEBRUARY 5, 2013
                                                                    B
                 [DR. B.S. CHAUHAN AND
               JAGDISH SINGH KHEHAR, JJ.]

     Motor Vehicles Act, 1988:
                                                                    c
     s. 167 read with s.166 of the Act and s.8 of 1923 Act -
 Death of an employee in a motor accident while in
 employment of the employer - Motor Accident Claims
 Tribunal awarding compensation and directing deduction of
 the amount already paid to claimant under 1923 Act - Held:         D
 Dependents having opted to file claim petition uls 166 of the
 Act first, and being disbursed the amount under 1923 Act
 subsequently, the order of Tribunal directing deduction of the
 amount paid under the 1923 Act from the compensation
 determined under Motor Vehicles Act, gives full effect to
 s. 167 of the said Act, and the claimants are, thus, not allowed   E
 dual benefit under the two enactments - Workmen's
 Compensation Act, 1923 - ss. 8 and 10.

       The husband of respondent no. 1 lost his life In a
  motor accident while working in the employment of the F
  Port Trust. The dependents filed a claim petition u/s 166
  of the Motor Vehicles Act, 1988. Subsequently, the
  employer-Port Trust Intimated the Workmen's
  Compensation Commissioner of the motor accident and
  deposited an amount of Rs. 3,26,140/·, which was paid to G
  the dependants. The Motor Accident Claims Tribunal
· Independently determined the claim and awarded the
  claimants a compensation of Rs.11,44,440/-, out of which
  the amount of Rs. 3,26,140/· disbursed under Workmen's
                              739                                   H
    740      SUPREME COURT REPORTS            [2013] 1 S.C.R.

A Compensation Act, 1923 was directed to be deducted.
  The High Court affirmed the order.

      In the instant appeal filed by the Insurance Company,
  it was contended for the appellant that the claimants
  having received the compensation under the Workmen's
8 Compensation Act, were, in view of s. 167 of the Motor
  Vehicles Act, 1988, precluded from raising a claim linder
  the Motor Vehicles Act, 1988.

          Dismissing the appeal, the Court
c      HELD: 1.1. Sub-s. (1) to (3) of s. 8 of the Workmen's
  Compensation, 1923 (the 1923 Act) envisages 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
0
  Compensation Commissioner. Where an employer has
  not suo-motu initiated action u/ss 8 for payment of
  compensation to an employee or his/her dependants, it
  is open to the dependants of the deceased employee to
  raise a claim for compensation u/s 10 of the Workmen's
E Compensation Act, 1923. The procedure u/s 8 is initiated
  at the behest of the employer "suo motu", and as such,
  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. If
F the claimants had moved an application u/s 10 of the 1923
  Act, they would have been deemed to have exercised
  their option to seek compensation under the provisions
  of the said Act. In the instant case, no such application
  was ever filed by the respondents-claimants u/s 10.
G Therefore, the respondents-claimants having never
  exercised their option to seek compensation u/s 10 of the
  1923 Act could not be deemed to be precluded from
  seeking compensation u/s 166 of the Motor Vehicles Act,
  1988. (para 9 and 12] [754-D-E; 756-A-D]
H
 ORIENTAL INSURANCE CO. LTD. v. DYAMAWA & 741
                  ORS.
    National Insurance Company Ltd. v. Mastan & Anr. 2005       A
(5) Suppl. SCR 704 = (2006) 2 sec 641 - relied on.

      1.2. Even otherwise, the first act at the behest of the
respondents-claimants for seeking compensation on
account of the death of the bread winner was by way of          8
filing a claim petition uls 166 of the Motor Vehicles Act,
1988 on 30.5.2003. The said 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 s. 167         C
of the Motor Vehicles Act, the same is liable to be
determined on the basis of the said claim application filed
by the respondents-claimants on 30.5.2003. The
compensation deposited by the Port Trust under the
1923 Act was much later, on 4.11.2003. The said deposit
was not at the behest of the respondents-claimants, but         D
was based on a unilateral "suo motu" determination of
the employer (the Port Trust) u/s 8 of the 1923 Act. Filing
of the claim application u/s 166 aforesaid, constitutes her
(as well as, that of the other dependants of the deceased)
option, to seek compensation under the Motor Vehicles           E
Act. [para 13) [756-F-H; 757-A-B, C-D]

     1.3. This Court, therefore, affirms the determination
rendered by the Motor Accidents Claims Tribunal and the
High Court in awarding compensation quantified at               F
Rs.11,44,440/- to the claimant. The Motor Accidents Claims
Tribunal as also the High Court rightly ordered a deduction
therefrom of a sum of Rs.3,26,140/- (paid to the claimants
under the 1923 Act), which gives full effect to s.167 of the
Motor Vehicles Act, inasmuch as it awards compensation          G
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. [para 14) [757-E-G)
                                                                H
     742       SUPREME COURT REPORTS                    [2013] 1 S.C.R.


A                            Case Law Reference:
           2005 (5) Suppl. SCR 704             relied on      para 6
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 937
     of 2013.
B
         From the Judgment & Order dated 14.9.2011 of the High
     Court of Karnataka, Circuit Bench at Dharwad, in MFA No.
     20108 of 2009 (MV).

           M.K. Dua, Kishore Rawal for the Appellant.
c
           D.P. Chaturvedi, S.N. Bhat for the Respondents.

           The Judgment of the Court was delivered by

       JAGDISH SINGH KHEHAR, J. 1. Yalgurdappa B. Goudar
D 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
E 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
F 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 ofYalgurdappa B. Goudar, filed a claim petition
G under Section 166 of the Motor Vehicles Act, 1988 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.

H•         3. It is not a matter of dispute, that the Port Trust addressed
  ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                     743
        ORS. [JAGDISH SINGH KHEHAR, J.]
  a communication dated 4.11.2003 to the Workmen's                     A
  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              B
  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.                C
  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 Dyamawa Yalgurdappa,
  the widow of the deceased Yalgurdappa B. Goudar, appeared
  befor~ the Workmen's Compensation Commissioner and her               D
  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             E
  dependents of the deceased. Based on her statement, she
  prayed for the release of the compensation deposited by the
  Port Trust, with th(.. Workmen's Compensation Commissioner.
  Since the claim raised by Dyamawa Yalgurdappa, widow of
  Yalgurdappa B. Goudar was not contested by the employer, the         F
  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                 G
· 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 :                                                        H
    744      SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A         "The opp. Party Mormugao Port Trust vide their letter dated
          04.11.2003 had informed that Stiri 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
B         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
c         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
D         Yellagurdappa Goudar. Her husband was working for
          Mormugao Port Trust in Mechanical Engineerin·g
          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,
E         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
F         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
G         Compensation Act.
          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.
H
 ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                    745
     · ORS. [JAGDISH SINGH KHEHAR, J.]
    After having verified the records produced in the course        A
    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:
                                                                    B
        "

     Consequently, the aforesaid compensation unde~ the
Workmen's Compensation Act, 1923 came to be released to
the widow and daughter of Yalgurdappa B. Goudar.
                                                                    c
     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 o
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 E
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             F
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,             G
Bagalkot. Through the instant appeal, the Oriental 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
                                                                    H
    746       SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A 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:
8
          "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
C         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."
D
         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
E   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
F   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),
G   under the Motor Vehicles Act, 1988. In order to buttress the
    aforesaid submission, learned counsel for the 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
H   placed on the following observations recorded therein:
ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                    747
      ORS. [JAGDISH SINGH KHEHAR, J.]
  "33. On the establishment of a Claims Tribunal in terms of        A
   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         B
   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           c
   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                  0
   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            E
   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   F
   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         G
  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      H
    748       SUPREME COURT REPORTS                 [2013) 1 S.C.R.

A         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 & 8 363) is fully incorporated in the scheme of Section
          167 of the Motor Vehicles Act, precluding the claimant who
8         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
c         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
D         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. Section 167 of the Act gives a claimant
          even under the Workmen's Compensation Act, the right to
E         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
F         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
G         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."
H
  ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                   749
        ORS. [JAGDISH SINGH KHEHAR, J.]
      Based on the observations extracted hereinabove, it was       A
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           B
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-     C
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    D
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     E
counsel for the appellant, it is 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             F
    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           G
    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                  H
    750      SUPREME COURT REPORTS                   [2013) 1 S.C.R.

A         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.
B
          (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
c         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
0         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
E
          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.
F
          (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
G         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
H
    ORIENTAL INSURANCE CO. LTD. v. DYAMAWA & 751
          ORS. [JAGDISH SINGH KHEHAR, J.]
        compensation is payable is not a woman or a person             A
        under a legal 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 legaJ disability,    8
        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     C
        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.
                                                                       D
         (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                E
        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         F
        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       G
        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-         H



... "
    752         SUPREME COURT REPORTS              [2013] 1 S.C.R.

A         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."
B
          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
c         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:

D         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
          which the workman was continuously absent from work in
          consequence of the disablement caused by the disease:
E
          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
F         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
G
          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:
H
ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                    753
      ORS. [JAGDISH SINGH KHEHAR, J.]
  Provided further that the want of or any defect or irregularity   A
  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              8
         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        C
         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          D
         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:
                                                                    E
         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-
                                                                    F
         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       G
  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 emplo"yers, or upon any person
  responsible to the employer for the management of any
                                                                    H
    754       SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A         branch of the trade or business in which the injured
          workman was employed.

          (3) The State Government may require that any prescribed
          class of employers shall maintain at these premises at
B         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
c         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."

0        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
E   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
F   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
G   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
H   to the employer.
   ORIENTAL INSURANCE CO. LTD. v. DYAMAWA & 755
         ORS. [JAGDISH SINGH KHEHAR, J.]
      10. As against the aforesaid, where an employer has not A
 suo-motu initiated action for payment of compensation to an
 employee or his/her dependants, 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 B
 Compensation Act, 1923. Sub-section (1) of Section 1O
 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               c
 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               D
 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             E
 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           F
 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          G
  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
  behest of the employer "suo motu", and as such, in our view        H
    756     SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A 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
B 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
c 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
0
  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.
E      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
F 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
G Section 167 of the 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
H respondents-claimants was much later, on 4.11.2003. The
 ORIENTAL INSURANCE CO. LTD. v. DYAMAWA &                   757
      ORS. [JAGDISH SINGH KHEHAR, J.]
aforesaid deposit, as already noticed above, was not at the        A
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 Workm~n's        B
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        c
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         0
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           E
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 Workmen's Compensation          F
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       G
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.
R.P.                                                               H
                                           Appeal dismissed.