Holding

An insurer defending a claim under the Workmen’s Compensation Act 1923 cannot rely on the defences available under Section 149(2) of the Motor Vehicles Act 1988, as the claimant’s election of the 1923‑Act forum bars such cross‑statutory defences.

Summary

Mastan, a cleaner employed by the owner of a lorry insured by National Insurance Company Ltd., was injured (45‑50% disability) in a road accident while driving the employer's vehicle. He filed a claim under the Workmen's Compensation Act, 1923 and obtained an award of compensation payable by the insurer. The insurer appealed the award under Section 30 of the 1923 Act; the Karnataka High Court dismissed the appeal, holding that the insurer could raise defences available under Section 149(2) of the Motor Vehicles Act, 1988. The Supreme Court examined whether an insurer defending a claim under the 1923 Act could invoke the Motor Vehicles Act defences. It held that the two statutes are distinct, that Section 167 of the Motor Vehicles Act provides a mandatory election of remedy, and that once the claimant elects the 1923‑Act forum, the insurer is barred from raising the 1988‑Act defences. Consequently, the appeal was allowed and the matter remitted to the High Court for fresh consideration.

Issues considered

Whether an insurer defending a claim under the Workmen's Compensation Act, 1923, is precluded from raising defences under Section 149(2) of the Motor Vehicles Act, 1988.
Whether the doctrine of election/equitable estoppel applies to bar the insurer from invoking provisions of the Motor Vehicles Act after the claimant has elected the 1923‑Act forum.

Legislation cited

Motor Vehicles Act, 1988s. 140, s. 141, s. 142, s. 143, s. 144, s. 149, s. 165, s. 166, s. 167, s. 168, s. 170, s. 173
Workmen's Compensation Act, 1923s. 15B, s. 3, s. 30, s. 4, s. 5

Subjects

Workmen's Compensation ActMotor Vehicles ActInsurer defenceElection of remediesDoctrine of estoppelSection 149Section 167Statutory appealInterpretation of statutes

Judgment

A NATIONAL INSURANCE COMPANY LTD.
v.
MASTAN AND ANR.

DECEMBER 9, 2005

B [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]

Labour Laws:
Workmen's Compensation Act, 1923-Sections 3, 4, 5, 15B and 30-
C Motor Vehicles Act, 1988-Sections 143, 149, 167 and 173-First Respondent
was driving his employer's vehicle when it met with accident~He suffered
45% to 50% disability-Vehicle insured with Appellant-First Respondent
initiated proceedings under the 1923 Act and obtained award ofcompensation
payable by Appellant-Defences available to Appellant-insurer in appeal
initiated by it under the 1923 Act-Whether restrictions on defences available
D to an insurer in terms of S.149(2) of the 1988 Act applicable-Held, No--
First Respondent having chosen the forum under the 1923 Act/or obtaining
compensation against his employer debarred from invoking the provisions of
the 1988 Act-Applicability of doctrine of estoppel by election.
Interpretation of Statutes-Reference by incorporation-Applicability
E of
Doctrines-Doctrine of estoppel by election-When two remedies are
avmlable for the same relief. the aggrieved party has the option to elect
either of them but not both-However there are certain exceptions to the
same rule.
F First Respondent was driving his employer's vehicle when it met with
an accident. He suffered 45% to 50% disability. The vehicle was insured '•
with the Appellant. First Respondent initiated proceedings under the '
Workmen's Compensation Act, 1923 and obtained an award of compensation
payable by Appellant Against the award, Appellant filed appeal under Section
G 30(1) of the 1923 Act which was dismissed by High Court on the premise
that the Appellant was not entitled to urge any ground therein which was
available to it in terms of the Motor Vehicles Act, 1988.

In appeal to this Court the question which arose for consideration is
whether an insurer, while defending an action initiated under the Workmen's
II 704
,I .....

NA TIONALINSURANCECOMPANY LTD. v. MASTAN 705
Compensation Act, 1923, is precluded from raising any defence as envisaged A
under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988.

Allowing the appeal and remitting back the matter to High Court, the
Court

HELD: Per S.B. Sinha, J.
B
1.1. Right of appeal is a creature of statute. The scope and ambit of an
appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988
Act are distinct and different. They.arise under different situations. In a case
falling under the 1923 Act, negligence on the part of the owner may not be
required to be proved. What is required to be proved is that the workman C
suffered injuries or died in course of employment. The amount of compensation
would be determined having regard to the nature of injuries suffered by the
worker and other factors as specified in the Act. The findings of fact arrived
at by the Commissioner for Workmen's Compensation are final and binding.
Subject to the limitations contained in Section 30 of the 1923 Act, an appeal
would be maintainable before the High Court; but to put the insurer to further D
disadvantages would lead to an incongruous situation. (712-G-H; 713-A-BJ

1.2. 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, 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 E
ambit of appeal are also different. [713-C)

National Insurance Company Ltd v. Nico/letta Rohtagi and Ors., (2002)
7 SCC 456; United India Insurance Co. Ltd. v. Bhushan Sachdeva & Ors.,
[2002) 2 SCC 265 and National Insurance Company Ltd v. Baljit Kaur, (2004)
2 sec 1, referred to. . F
2.1. 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-a-vis the third person may direct the insurance company to meet G
the liabilities of the insurer, permitting it to recover the same from the
- insured. The 1923 Act does not envisage such a situation. (713-D)

2.2. 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 H
706 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 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
B a lis, having regard to the different provisions of the two Acts cannot enforce
liabHities of the insurer under both the Acts. He has to elect for one.
[713-E-F)

3. Section 167 of the 1988 Act statutorily provides for an option to the
claimant stating that where the death of or bodily injury to any person gives
C rise to a claim for compensation under the 1988 Act as also the 1923 Act,
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 167 contains a non-obstante clause providing for such an
option notwithstanding anything contained in the 1923 Act (713-G-H; 71~A)
D 4. 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
E but not both. Although there are certain exceptions to the same rule but the
same has no application in the instant case. [714-A-B)

Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR (1956) SC
593; C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya
and Ors., AIR (1965) SC 241; Prashant Ramachandra Deshpande v. Maruti
p Balaram Haibatti, (1995) Supp 2 SCC 539; P.R. Deshpande v. Maruti Balaram
Haibatti, [1998) 6 SCC 507 and Devasahayam (Dead) By LRs. v. P.
Savithramma and Ors., (2005) 7 SCC 653, relied on.

5.1. The First Respondent having chosen the forum under the 1923 Act
for the purpose of obtaining compensation against his employer cannot now
G 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. (715-C-D)
....
5.2. The contention on behalf of the Respondents that both the Acts
should be read together is not correct. A party suffering an injury or the
H dependents of the deceased who has died in course of an accident arising out
NATIONAL INSURANCE COMPANY LTD. v. MASTAN 707
of use of a motor vehicle may have claims under different statutes. But when A
cause of action arises under different statutes and the claimant elects the
forum under one Act in preference to the other, he cannot be thereafter
permitted to raise a contention which is available to him only in the former.
[715-E-FJ

Ved Prakash Garg v. Premi Devi and Ors., [1997} 8 SCC 1, B
distinguished

6. The matters are remitted to the High Court for consideration afresh
on merit. However, they would be entertained only in the event, the Appellants
satisfy the requirements contained in the proviso appended to sub-section (1)
of Section 30 of the 1923 Act. (716-A} C
Per Ba/asubramanyan, J. { Supplementing]

1. 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 inspiration
from any of the provisions of the Motor Vehicles Act, 1988 other than what is D
specifically saved by Section 167of 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 E
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 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 ifthe claim is made under the Workmen's Compensation F
Act. Section 144 of the Act gives the provisions of Chapter X of the Motor
Vehicles Act, 1988 overriding effect. [717-B-D}

2. In the facts of the case, the claimant has not chosen to withdraw his
claim under the Workmen's Compensation Act before it reached the point of ....,
judgment, with a view to approach the Motor Accidents Claims Tribunal What '-1
he has done is to pursue his claim under the Workmen's Compensation Act
till the award was passed and also to invoke a provision of the Motor Vehicles
Act, not made applicable to claims under the Workmen's Compensation Act
by Section 167 of the Motor Vehicles Act. The claimant-respondent, is not
entitled to do so. [717-E-F] H
708 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7381 of2005.

From the Judgment and Order dated 19.8.2004 of the Karnataka High
Court in M.F.A. No. 1303 of 1997.
WITH
C.A. No. 7''83 of2005.
B
Kishore Rawat and M.K. Dua for the Appellant.

P.R. Ramasesh for the Respondents.

The Judgment of the Court was delivered by
c S.B. SINHA, J. Leave granted.

Whether an insurer, while defending an action initiated under the
Workmen's Compensation Act, 1923, (for short, '1923 Act') is precluded from
raising any defence as envisaged in under sub-section (2) of Section 149 of
D the Motor Vehicles Act, 1988, (for short, 'the 1988 Act') is the question
involved in these appeals.

We will notice the fact of the matter from the Civil Appeal arising out
of Special Leave Petition (Civil) No.26615 of2004.

E A lorry bearing registration No. KA 34-545 was insured with the
Appellant company. The First Respondent herein was a cleaner and the
Second Respondent was an owner of the said lorry. The said lorry was

..
involved in an accident resulting 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
F 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.

Aggrieved by and dissatisfied therewith the Appellant preferred an
appeal before the High Court under Section 30( l) of the 1923 Act, which was
G dismissed by the High Court on the premise that the Appellant was not
entitled to urge any ground therein which was 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. 1910of1997
etc. The question referred to the Full Bench of the High Court for its
H consideration was as under :
NA TIONALINSURANCECOMPANY LTD. 1>. MAST AN [SINHA,J.) 709

"Whether the restrictions on the defences available to an insurance A
company in terms of Section 149(2) of the Motor Vehicles Act have
any application to the proceedings under the workmen's Compensation
Act ?"

Upon consideration of various provisions of the 1988 Act including
Sections 143, 167 and 149 thereof, the Full Bench held : B
" ...... Under the circumstances, under the W.C. Act, the Insurance
Company can only agitate violation of any condition of the policy to
make substantial question of law, and therefore, the question of raising
other defences available in terms of Sec. 149(2) of the M.V. Act does
not arise." c
It was also held :

"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 D
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 E
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. Nicol/etta F
Rohtagi and Ors., [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 Ors., [ 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 G
that the expression 'death' shall carry the same meaning both under the 1923
Act as also the I 988 Act. ..,

Both the 1923 and 1988 Acts are self-contained Codes. Subject to the
provisions made in the later Act, Section 3 of the I 923 Act provides that if
personal injury is caused to a workman by accident arising out of and in the H
A
710 SUPREME COURT REPORTS' [2005] SUPP. S S.C.R.

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 S elucidates the method of
calculating wages. Section I SB( 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.
B
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
c High Court on a substantial question of law involved.
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
D 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

E
(1) of Section 140 and for this purpose, the said provisions shall, with
necessary modifications, be deemed to form part of that Act."

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
F
application in relation to a claim made in terms of Chapter XI of the 1988 Act.

Applicability of th,e 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.
G The High Court, noticed. hereinbefore, was of the view that under the ...
1923 Act, negligence is not required to be proved for th·e purpose of
determining the quantum of compensation payable. However, under the 1988
Act, in a case where the liability arises without fault no difficulty arises in this
behalf in view of the provisions of Section 143 of the 1988 Act. But difficulty ~

H in applying the provisions of the 1988 Act arises in relation to a claim made
NATIONAL INSURANCE COMPANY LTD. v. MAST AN [SINHA, J.] 711

under Chapter Xl thereof. Claims under the said chapter are to be proved in A
tenns of Section 166 of the 1988 Act, where negligence on the part of the
driver of the vehicle is required to be proved. Indisputably, in relation to such
a claim, insurer can raise only a limited defence in view of sub-section (2) of
Section 149 which reads as under :

"149. Duty of insurers to satisfy judgments and award against persons B
insured in respect of third party risks.
(I) xxx xxx xxx
(2) No sum shall be payable by an insurer under sub-section (1) in
respect of any judgment or award unless, before the commencement C
of the proceedings in which the judgment of award is given the
insurer had notice through the Court or, as the case may be, the
Claims Tribunal of the bringing of the proceedings, or in respect of
such judgment or award so long as execution is stayed thereon
pending an appeal; and an insurer to whom notice of the bringing of
any such proceedings is so given shall be entitled to be made a party D
thereto and to defend the action on any of the following grounds,
namely:-
(a) that there has been a breach of a specified condition of the
policy, being one of the following conditions, namely:
E
(i) a condition excluding the use of the vehicle
(a) for hire or reward, where the vehicle is on the date of the
contract of insurance a vehicle not covered by a permit to
ply for hire or reward, or
(b) for organised racing and speed testing, or F
(c) for a purpose not 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 G
(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
H
712 SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A (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 tl1e
nondisclosure of a material fact or by a representation of fact
which was false in some material particular."
B Interpretation of this provision fell for consideration before this Court
in National Insurance Company Ltd v. Ba/jit Kaur, (2004] 2 SCC I wherein
the principles have been laid down in some details and thus, it is not necessary
to reiterate the same herein once over again.
.
\

C 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 leave to contest the claim on one or any
of the grounds available to the person against whom the claim has been made.

It is beyond any doubt or dispute that in a proceeding where the right
D of the insurer to raise a defence is limited in terms of sub-section (2) of
Section 149, an appeal preferred by it against an award of the Motor Accidents
Claims Tribunal must be confined or limited to that extent. But once a leave

..
has been granted to the insurer to contest the claim on any ground as
envisaged in Section 170 of the 1988 Act, an appeal shall also be maintainable
as a tnatter of right, wherein the High Court can go into all contentions. The
E Full Bench of the Karnataka High Court, in our opinion, committed a serious
error in relying upon the judgments of this Court, in terms whereof the right
of appeal of the insurance company has been held to be limited, inasmuch
in those decisions this Court was considering a situation where sub-section
(2) of Section 149 was attracted.
F 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, a workman
is entitled to compensation even if no negligence is proved against the owner
G 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.

Right of appeal is a creature of statute. The scope and ambit of an
appeal in terms of Section 30 of the 1923 Act and Section 173 of the 1988 Act
H are distinct and different. They arise under different situations. In a case
NA TIONALINSURANCECOMPANY LTD. 11. MASTAN [SINHA, J.) 713

falling under the 1923 Act, negligence on the part of the owner may not be A
required to be proved. Therein what is required to be proved is that the
workman suffered injuries or died in course of employment. The amount of
compensation would be determined having regard to the nature of injuries
suffered by the worker and other factors as specified in the Act. The findings
of fact arrived at by the Commissioner for Workmen's Compensation are final
and binding. Subject to the limitations contained in Section 30 of the 1923 B
Act, an appeal would be maintainable before the High Court; but to put the
insurer to further disadvantages would lead to an incongruous situation.

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 C
two statutes, the defences which can be raised by the insurer being different,
the scope and ambit of appeal are also different.

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 D
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-a-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 E
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 F
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.
G
Section 167 of the 1988 Act statutorily provides for an option to the
claimant stating that where the death of or bodily injury to any person gives
rise to a claim for compensation under the 1988 Act as also the 1923 Act, 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 167 contains a non-obstante clause providing for such an H
714 SUPREME COURT REPORTS (2005) SUPP. S S.C.R.

A option notwithstanding anything contained in the 1923 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 siience 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
B 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 Ors. v. B. Shama Rao and Ors., AIR (1956) SC
593, it was stated:
c
"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."
D
In C. Beepathuma and Ors. v. Velasari Shankaranarayana
Kadambolithaya and Ors., 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-
E
"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)
F 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
G 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 Ba/aram
H Haibatti, [1995] Supp 2 sec 539].
NATIONAL INSURANCE COMPANY LTD.1'. MASTAN [SINHA,J.] 715
Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti, [1998] 6 sec A
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 B
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.
[See also Del1asahayam (Dead) By LRs. v. P. Savithramma and Ors.,
[20051 1 sec 653]. C
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. D
We, therefore, with respect do not subscribe to the views of the Full
Bench of the Karnataka High Court.

Mr. P.R. Ramasesh is not correct in contending that both the Acts
should be read together. A party suffering an injury or the dependents of the E
deceased who has died in course of an accident arising out of use of a motor
vehicle may have claims under different statutes. But when cause of action
arises under different statutes and the claimant elects the forum under one
Act in preference to. the other, he cannot be thereafter pennitted to raise a
contention which is available to him only in the former. F
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 I 923 Act; where having
regard to proviso (i)(c) appended to sub-section (I) of Section I47 was
considered in the context of clause (i) of sub-section (I) of Section I I of the G
insurance policy vis-a-vis Section 4A(3) thereof. Such a question does not
arise herein as the claim under the I 923 Act vis-a-vis Chapter XI of the I988
Act stand absolutely on a different footing.

For the reasons aforementioned, the impugned judgments cannot be
sustained which are set aside accordingly. The appeals are allowed and the H
716 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A matters are remitted to the High Court for consideration of these appeals
afresh on merit. The appeals, it is needless to say, would be entertained only
in the event, the Appellants satisfy the requirements contained in the proviso
appended to sub-section (l) of Section 30 of the 1923 Act. In the facts and
circumstances of the case, however, there shall be no order as to costs.

B P.K. BALASUBRAMANY AN, J. 1. I respectfully agree with the reasoning
and conclusion of my learned brother.

2. On the establishment of a Claims Tribunal in tenns of Section 165 of
the Motor Vehicles Act, 1988, the victim of a motor accident has a right to
apply for compensation in tenns of Section 166 of that Act before that
C 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~ claim
in tort. The exclusiveness of the jurisdiction of the Motor Accidents Claims
D 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
E 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, 19.88 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
F forum. By confining the claim to the authority or Tribunal under either of the
Acts, the legislative 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 the Section that a claim cannot be
made under both the enactments, is a further reiteration of the doctrine of
G 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)
H 3 E and B 363] is fully incorporated in the scheme of Section 167 of the Motor
NATIONAL INSURANCE COMPANY LTD. v. MASTAN [BALASUBRAMANYAN, J.] 717

Vehicles Act, precluding the claimant who has invoked the Workmen's A
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.
B
3. 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 inspiration
from any of the provisions of the Motor Vehicles Act, 1988 other than what
is specifica!ly saved by Section 167 of the Act. Section 167. of the Act gives C
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. D
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 ifthe claim is made under the Workmen's Compensation
Act. Section 144 of the Act gives the provisions of Chapter X of the Motor E
Vehicles Act, 1988 overriding effect.

4. Coming to the facts of the case, the claimant has ~ot chosen to
withdraw his claim under the Workmen's Compensation Act before it reached
the point of judgment, with a view to approach the Motor Accidents Claims
Tribunal. What he has done is to pursue his claim under the Workmen's F
Compensation Act tiJJ the award was passed and also to invoke a provision
of the Motor Vehicles Act, not made applicable to claims under the Workmen's
Compensation Act by Section 167 of the Motor Vehicles Act. The claimant-
respondent, is not entitled to do so. The High Court was in error in holding
that he is entitled to do so.
G
B.B.B. Appeal allowed.