# Bajaj Allianz General Insurance Co. Ltd v. Motor Accident Claim, Shahjahanpur & Ors

- **Citation:** (2023) 4 ILRA 911
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-28
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bajaj-allianz-general-insurance-co-ltd-v-motor-accident-claim-shahjahanpur-ors-50046
- **Pages:** 7

## Headnote

A. Motor Vehicle Act, 1988 - Section 167 -
Bar - Scope - Multiplicity of claim - Award
passed, earlier, under the Workmen's
Compensation Act was not disclosed in the
claim petition - Effect - Held, Section 167
clearly
restricts
the
right
to
claim
compensation on account of a tort from
one of the forums prescribed namely the
Motor Vehicles Act or the Workmen's
Compensation Act - As the respondents
have obtained the order from the Motor
Accidents Claims Tribunal by concealing
the true facts and in contravention to
Section 167 of the Act, there was a clear
case of statutory fraud on the Tribunal.
(Para 18 and 22)
B. Review - Procedural review - Scope -
Held, although a review, does not lie
unless it is prescribed by the statutes, a
procedural review is implicit in all the
courts - Grindlays Bank Limited's case
relied upon. (Para 23)
Writ petition disposed off. (E-1)
List of Cases cited:

## Text

4 All. Bajaj Allianz General Insurance Co. Ltd. Vs. Motor Accident Claim, Shahjahanpur & Ors. 911
Computerized
Case
No.
T202113380101336 and decided by a
common
order,
consistent
with
the
observations made in this judgement.

(iv) Prior to entering a final
judgement the court below shall ensure that
demarcation of disputed parcels of lands is
completed as per law.

21. The writ petition is allowed to the
extent indicated above.
----------
(2023) 4 ILRA 911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No .14503 of 2022

Bajaj Allianz General Insurance Co. Ltd.
 ...Petitioner
Versus
Motor Accident Claim, Shahjahanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Pawan Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Motor Vehicle Act, 1988 - Section 167 -
Bar - Scope - Multiplicity of claim - Award
passed, earlier, under the Workmen's
Compensation Act was not disclosed in the
claim petition - Effect - Held, Section 167
clearly
restricts
the
right
to
claim
compensation on account of a tort from
one of the forums prescribed namely the
Motor Vehicles Act or the Workmen's
Compensation Act - As the respondents
have obtained the order from the Motor
Accidents Claims Tribunal by concealing
the true facts and in contravention to
Section 167 of the Act, there was a clear
case of statutory fraud on the Tribunal.
(Para 18 and 22)
B. Review - Procedural review - Scope -
Held, although a review, does not lie
unless it is prescribed by the statutes, a
procedural review is implicit in all the
courts - Grindlays Bank Limited's case
relied upon. (Para 23)
Writ petition disposed off. (E-1)
List of Cases cited:
1. National Insurance Co. Vs Mastan & anr.;
(2006) 2 SCC 641.
2. Oriental Insurance Co. Ltd. Vs Dyamavva &
ors.; (2013) 9 SCC 406
3. First Appeal No. 1998 of 2017; Madinabibi
Dasotbhai Sheikh & ors. Vs Jagdishchandra
Ramanlal Kachiya Patel & ors. decided on
23.06.2017
4. re: WCC Ref. No.1 of 2010, Commissioner of
Workmen's Compensation; 2010 SCC online Ker
4805
5. New India Assurance Co. Ltd. Vs Annapurna
Gupta & ors.; 2018 (9) ADJ 784
6. National Insurance Co. Vs Mastan & anr.;
(2006) 2 SCC 641
7. Oriental Insurance Co. Vs Dyamavva & ors.;
(2013) 9 SCC 406
8. FAFO No. 1946 of 2018; New India Assurance
Co. Ltd. Vs Smt. Annapurna Gupta & anr.
decided on 17 April, 2018
9. Grindlays Bank Ltd. Vs Central Government
Industrial Tribunal & ors.; 1981 SCR (2) 341

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard counsel for the parties and
Sri Bhanu Pratap for respondent no. 2 to 7.

2. Present petition has been filed
challenging the order dated 02.02.2022,
whereby the application filed by the
912 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner for recall of the award dated
18.12.2018 was rejected.

3. The facts in brief are that husband
of the respondent no. 2 died on 14.04.2013
in an accident caused on 28.12.2012 with
the vehicle bearing No. UP 27 E 4671. The
deceased was the cleaner in a truck bearing
No. UP 27 T 2264 and on the ill fated day,
when he went to repair the tyre, the tempo
bearing No. UP 27 T 4671 hit the deceased
which
caused
grievous
injuries
and
ultimately led to his death.

4. The respondent no. 2, claiming
compensation
filed
a
case
No.
50/E.C.A./2013 before the Workmen's
Claims
Commissioner
claiming
compensation on account of the death of
the husband of the claimant, respondent no.
2. In the said case final order was passed on
06.11.2013 granting compensation of Rs.
588913/- amount awarded was decided to
be paid by the insurer of truck No. UP 27 T
2264 mainly on the ground that the
deceased died while on duty and was
entitled
for
compensation
from
the
employer
under
the
Workmen's
Compensation Act. As the employer was
indemnified by the insurance company, the
amount as granted was directed to be paid
by the ensurer of truck No. UP 27 T 2264,
namely
Sri
Ram
General
Insurance
Company Ltd..

5. After award was passed on
06.11.2013, the respondent no. 2 alongwith
the respondent no. 3 to 7 filed a claim
petition under Section 166 of the Motor
Vehicles Act claiming compensation from
the owner of tempo No. UP 27 T 4671,
which was said to be insured with the
petitioner company. The said claim petition
was
allowed
vide
judgment
dated
06.04.2017, wherein an amount of Rs.
4,57,000/- was determined as compensation
under Motor Vehicles Act. While passing
the said award, the amount was directed to
be paid (1/6th share to each) to the
claimants, wife of the deceased (respondent
no. 2), the minor children of the respondent
no. 2 as well as the mother and father of the
deceased in the proportion as indicated.

6.

The
petitioner
company
subsequently moved an application seeking
recall of the award dated 06.04.2017
mainly on the ground that prior to filing of
the claim petition, the claimant, respondent
no.
2
had
filed
proceedings
under
Workmen's Compensation Act and the
award was passed in her favour, which fact
was not disclosed by the respondent no. 2
in the claim petition No. 148 of 2014. The
contention of the petitioner was that the
claim as decided in MACT No. 148 of
2014 was barred by virtue of the Section
167 of the Motor Vehicles Act. The said
application for recall was rejected by
means of order dated 02.02.2022 mainly on
the
ground
that
the
application
for
recall/review was not maintainable before
the Tribunal.

7. The contention of the counsel for
the petitioner is that in view of the bar
created under Section 167 of the Motor
Vehicles Act, a right of election of remedy
vested in favour of the claimant and once
the remedy/right was chosen, the right to
claim compensation under the different Act
was specifically barred. He argues that in
view of the bar created under Section 167
coupled with the fact that there were no
disclosure made in the claim petition, the
award
was
obtained
by
the
misrepresentation and contrary to the
statutory provisions and thus, was liable to
be recalled. In support of his contention, he
places reliance on the judgment of Hon'ble
4 All. Bajaj Allianz General Insurance Co. Ltd. Vs. Motor Accident Claim, Shahjahanpur & Ors. 913
Supreme Court in the case of National
Insurance Company Vs. Mastan and Anr.
(2006) 2 SCC 641.

8. He also places reliance on the
judgment of the Hon'ble Supreme Court in
the case of Oriental Insurance Company
Ltd. Vs. Dyamavva and Ors.(2013) 9 SCC
406. He then places reliance on the
judgment of the Gujarat High Court in the
case of Madinabibi Dasotbhai Sheikh and
Ors.
Vs.
Jagdishchandra
Ramanlal
Kachiya Patel and Ors. Decided on
23.06.2017 in First Appeal No.1998 of
2017 and lastly placed reliance on the
judgment of the Kerala High Court in re:
WCC Ref.No.1 of 2010 Commissioner of
Workmen's Compensation reported at
2010 SCC online Ker 4805.

9. Counsel for respondent, on the
other hand, argues that in the present case,
the compensation was claimed from two
different insurance companies. In respect of
the Workmen's Compensation Act, the
claim of compensation was made against
the insurer of truck, whereas in the Motor
Vehicles Act the claim was made against
the insurer of tempo which are two
different companies and thus, there is no
bar in claiming the compensation. He relies
on the provisions of Section 145, 146, 147
of the Motor Vehicles Act read with
Section 150 to submit that the the insurer is
different and thus, the liability of payment
arises out of two different contracts of
insurance. He next argues that the list of
dependents under Section 2B of the
Workmen's Compensation Act is separate
from the concept of legal heirs, who are
entitled to file compensation under Section
166 of the Motor Vehicles Act.

10. He further placed reliance on the
judgment of the Hon'ble Supreme Court in
the case of National Insurance Company
Vs. Mastan (supra) to argue that the
arguments raised by the counsel for the
petitioner are liable to be rejected. He also
placed reliance judgment of this Court in
the case of New India Assurance Co. Ltd.
Vs. Annapurna Gupta and Ors. 2018 (9)
ADJ 784. He lastly argues that in any
event, no case for review was made out and
the petitioner should have taken recourse to
filing the appeal and in the said appeal, he
could have placed evidence in terms of the
mandatory provisions of Order 41 Rule 27,
which would apply in principle.

11. To decide the issue as raised, this
Court is to see the genesis which led to
enactment of the Motor Vehicles Act and
the Workmen's Compensation Act.

12. The genesis of the entire action of
claiming damages flow from the tortious
action or a civil wrong inflicted upon the
deceased. It flows from the civil cause of
action and for which the compensation is
recoverable. The basic principle underlying
tort law is that no one should be harmed by
the acts of the others for a wrongful act.

13. In India, the general procedure
prescribed was, by way of filing a suit for
claiming compensation, for the wrongful
acts caused on account of tort or the civil
wrong. With passage of time, the procedure
for claiming damages was streamlined and
prescribed in statute namely the Fatal
Accidents Act and thereafter in various
statutes such as the Motor Vehicles Act, the
Workmen's Compensation Act and the
Public Liability Insurance Act, to name a
few.

14. The said enactments only
provided for the procedure for claiming the
damages on account of tort suffered by the
914 INDIAN LAW REPORTS ALLAHABAD SERIES
claimant or his dependents. The said
statutes provided for a remedy which was
faster and easier than the remedy of a civil
suit. Thus, the damages claimed under the
Motor Vehicle Act or the Workmen's
Compensation Act owe its genesis to the
loss caused due to the civil wrong. The
legislature in its wisdom provided for
various forums for claiming the damages
on account of the civil wrong under the
various acts.

15. Section 167 of the Act was
incorporated to avoid multiplicity of claims
on account of the wrong sustained by the
person or on behalf of the said person by
his legal representatives.

16. The contention of the counsel for
the petitioner that in various cases, the
claim for claiming money under the Life
Insurance Policy and claiming money
under the Motor Vehicles Act can go
simultaneously, cannot be applied to the
present case as the two are wholly
different, one being a civil wrong caused
on account of the irresponsible action and
the second arising out of a contract of
insurance.

17. It is well settled that that a
contract is found upon the consent whereas
a tort is inflicted against or without
consent. For an action of breach of
contract, a privity in between the parties is
essential whereas for tort no such privity is
needed. A tort is clearly distinguishable
from a pure breach of contract as a tort is
clearly a violation of a right in ''rem'
whereas breach of contract is infringement
of a right in ''personam'.

18. In the present case, section 167 of
the Motor Vehicles Act clearly restricts the
right to claim compensation on account of a
tort from one of the forums prescribed
namely the Motor Vehicles Act or the
Workmen's Compensation Act.

19. The issue and the scope of section
167 of the Act came up for consideration
before the Supreme Court in the case of
National Insurance Company vs. Mastan
and another (2006) 2 SCC 641 wherein after
analysing the provisions, the court has held as
under:

"22. 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 option
notwithstanding anything contained in the
1923 Act.

23.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.

24. In Nagubai Ammal v. B.
Shama Rao [1956 SCR 451 : AIR 1956 SC
593] it was stated: (SCR p. 470)

"It is clear from the above
observations that the maxim that a person
4 All. Bajaj Allianz General Insurance Co. Ltd. Vs. Motor Accident Claim, Shahjahanpur & Ors. 915
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."

25.
In
C.
Beepathumma
v.
Velasari
Shankaranarayana
Kadambolithaya [(1964) 5 SCR 836 : AIR
1965 SC 241] it was stated: (SCR p. 850)

"The doctrine of election which
has been applied in this case is well settled
and may be stated in the classic words of
Maitland--

''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.'

The same principle is stated in
White and Tudor's Leading Cases in
Equity, Vol. (sic) 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.' "

26.
Thomas,
J.
in
P.
R.
Deshpande v. Maruti Balaram Haibatti
[(1998) 6 SCC 507] stated the law thus:
(SCC p. 511, para 8)

"8. 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 his duty to
speak, from asserting a right which he
otherwise would have had."

27. 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.
28. We, therefore, with respect do not
subscribe to the views of the Full Bench of
the Karnataka High Court.

29. 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 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 permitted to raise a contention
which is available to him only in the former."

20. The Supreme Court in the case of
Oriental Insurance Company vs. Dyamavva
and others; (2013) 9 SCC 406 had the
occasion to consider the scope of section 167
and following the judgment in the case of
National
Insurance
Company
(supra)
recorded as under :

12. The issue to be determined by
us is, whether the acceptance of the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
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 cannot be considered as an exercise of
option by the dependants/claimants to seek
compensation under the provisions of the
Workmen's Compensation Act, 1923. The
position would have been otherwise if the
dependants had raised a claim for
compensation under Section 10 of the
Workmen's Compensation Act, 1923. In the
said eventuality, certainly compensation
would be paid to the dependants at the
instance (and option) of the claimants. In
other words, if the claimants had moved an
application under Section 10 of the
Workmen's Compensation Act, 1923, they
would have been deemed to have exercised
their option to seek compensation under the
provisions of the Workmen's Compensation
Act. Suffice it to state that no such
application
was
ever
filed
by
the
respondent claimants herein under Section
10 aforesaid. In the above view of the
matter, it can be stated that the respondent
claimants having never exercised their
option to seek compensation under Section
10 of the Workmen's Compensation Act,
1923, could not be deemed to be precluded
from seeking compensation under Section
166 of the Motor Vehicles Act, 1988."

21. Coming to the judgment of this
Court in the case of New India Assurance
Co. Ltd. vs Smt. Annapurna Gupta And
Another decided on 17 April, 2018 in
FAFO No. - 1946 of 2018 relied upon by
the counsel for the respondents, the court
proceeded on the assumption that two
insurance companies were involved in the
affair,
one
under
the
Workmen's
Compensation Act and the other which was
a party Motor Accident Claims Tribunal
under section 166. The said judgment does
not consider the fact, that the genesis of the
claim in two different forums is one and the
same, being a tort sustained by the
deceased for which the claim is raised by
the legal heirs, the court although noticed
the judgment of the Supreme Court in the
case of National Insurance Co. Ltd.
(supra) has clearly not dealt with the issue
as decided by the Supreme Court. Thus, the
said judgment is clearly not applicable and
does not qualify as precedent as the same
suffers from the vice of sub-silentio.

22. As the respondents have obtained
the order from the Motor Accidents Claims
Tribunal by concealing the true facts and in
contravention to Section 167 of the Act,
there was a clear case of statutory fraud on
the Tribunal.

23. It is well settled that although a
review, does not lie unless it is prescribed
by the statutes, a procedural review is
implicit in all the courts as has been held by
the Supreme Court in the case of Grindlays
Bank Limited vs. Central Government
Industrial Tribunal and others; 1981 SCR
(2) 341

24. In view of the fact, that this court
is of the view that the order passed by the
Tribunal was clearly contrary to the bar
created under Section 167 of the Act, the
Tribunal ought to have allowed the recall
application and should have heard the
matter on merits.

25. Thus, the impugned order dated
02.02.2022 is quashed. The matter is
remanded to the Claims Tribunal to recall
the award dated 18.12.2018 and to decide
the same afresh in accordance with law.
4 All. S.K. Associates Vs. State of U.P. & Ors.
917

26. It is informed at the bar that the
amount awarded by the Tribunal vide order
dated 18.12.2018 has not been withdrawn
by the respondents, thus, it is directed that
the amount deposited, if any, by the
petitioner shall continue to remain deposit
subject to the fresh award that may be
passed by the Tribunal, as directed above.

27 . The writ petition stands disposed
off with the said observations.
----------
(2023) 4 ILRA 917
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No .19391 of 2022

S.K. Associates ...Petitioner
Versus
State Of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal, Sri Shashinandan (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Dharmendra Singh Chauhan, Sri
Ashok Mehta (Sr. Adv.)

A. Constitution of India,1950 - Article 226
- Writ - Scope - Discretionary power, how
can be exercised - Petitioner not coming
with clean hand, whether can claim equity
- Held, power under Article 226 is a
discretionary power. A writ can be issued
only in case of a grave miscarriage of
justice or where there has been a flagrant
violation
of
law.
The
power
being
discretionary, the court has to balance
competing interests, keeping in mind that
the interests of justice and public interest
coalesce generally - A court of equity,
when exercising its equitable jurisdiction
must act so as to prevent perpetration of a
legal fraud and promote good faith and
equity - A petitioner whose claim is not
founded on valid grounds, is not entitled
to claim equity. A person who claims
equity must come before the court with
clean hands as equities have to be
properly worked out between parties to
ensure that no one is allowed to have
their pound of flesh vis-a-vis the others
unjustly. (Para 15)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Act, 1976 - Ss. 8, 10(1),
10(3), 10(4) and 10(5) - Surplus land -
Purchase of the surplus land vide saledeed, how much accrue the right - Held,
the disputed land vested in the St. and the
alleged sale deed is totally null and void in
view of Section 10(4) of the Act, 1976 -
The petitioner being an alleged purchaser,
has even no locus standi. (Para 7 and 16)
B. Ceiling Law - Urban Land (Ceiling and
Regulation) Repeal Act, 1999 - S. 3 -
Abatement of proceeding - Possession -
Relevancy - Held, 'taking over possession'
forms the lifeline of Section 3 of the
Repeal Act and a person seeking the
benefit of the Repeal Act for restoration of
the land should plead and prove that
possession was not taken over. [Para 17
(e)]
Writ petition dismissed. (E-1)
List of Cases cited:
1. St. of T. N. & ors. Vs M.S. Viswanathan &
ors.; (2021) 10 SCC 614
2. Sulochana Chandrakant Galande Vs Pune
Municipal Transport & ors.; (2010) 8 SCC 467
3. St. of U.P. & ors. Vs Adarsh Seva Sahkari
Samiti Ltd.; (2016) 12 SCC 493
4. St. of U. P. & ors. Vs Surendra Pratap & ors.;
(2016) 12 SCC 497
5. St. of Assam Vs Bhaskar Jyoti Sharma & ors.;
(2015) 5 SCC 321