TMI Blog2005 (12) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... rence by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, which was dismissed by the High Court on the premise that the Appellant was not entitled to urge any ground therein which was not available to it in terms of the 1988 Act. In support of the said finding, reliance was placed upon a Full Bench judgment of the High Court dated 17.12.2003 in MFA Nos. 1910 of 1997 etc. The question referred to the Full Bench of the High Court for its consideration was as under : Whether the restrictions on the defences available to an insurance company in terms of Section 149(2) of the Motor Vehicles Act have any application to the proceedings under the workmen's Compensation Act ? 5. Upon consideration of various provisions of the 1988 Act including Sections 143, 167 and 149 thereof, the Full Bench held : 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of Chapter to certain claims under Act 8 of 1923.- The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen's Compensation Act, 1923 resulting from an accident of the nature referred to in sub-section (1) of Section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act. 10. Section 143 occurs in Chapter X of the 1988 Act. Section 144 contains a non-obstante clause stating that the provisions of the said chapter shall have effect notwithstanding anything contained in any other provisions of the said Act or of any other law for the time being in force. Chapter X deals with liability without fault in certain cases. Chapter X, therefore, will have no application in relation to a claim made in terms of Chapter XI of the 1988 Act. 11. Applicability of the provisions of the 1988 Act in a proceeding under the 1923 Act is confined to a matter coming within the purview of Chapter X only. It cannot be stretched any further. 12. The High Court, noticed hereinbefore, was of the view that under the 1923 Act, negligen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular. 13. Interpretation of this provision fell for consideration before this Court in National Insurance Company Ltd. v. Baljit Kaur [(2004) 2 SCC 1] wherein the principles have been laid down in some details and thus, it is not necessary to reiterate the same herein once over again. 14. However, despite Section 149(2) of the 1988 Act, the Parliament was of the opinion that if any circumstance arises as enumerated in Section 170 thereof, an insurer may be granted leave to contest the claim on one or any of the grounds available to the person against whom the claim has been made. 15. It is beyond any doubt or dispute that in a proceeding where the right 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 only be confined or limited to some 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims Tribunal, having regard to its rights and liabilities vis-`-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof. A fortiori in a claim arising under Chapter XI, the provisions of the 1923 Act will have no application. A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contents of the instrument. 24. [See also Prashant Ramachandra Deshpande v. Maruti Balaram Haibatti, 1995 Supp (2) SCC 539] Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti [(1998) 6 SCC 507] stated the law, thus: The doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. 25. [See also Devasahayam (Dead) By LRs. v. P. Savithramma and Others, (2005) 7 SCC 653] 26. 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. 27. We, therefore, with respect do not subscribe to the views of the Full Bench of the Karnataka High Court. 28. Mr. P.R. Ramasesh is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld also fall under the Workmen's Compensation Act, 1923. That Section provides that death or bodily injury arising out of a motor accident which may also give rise to a claim for compensation under the Workmen's Compensation Act, can be enforced through the authorities under that Act, the option in that behalf being with the victim or his representative. But Section 167 makes it clear that a claim could not be maintained under both the Acts. In other words, a claimant who becomes entitled to claim compensation both under the Motor Vehicles Act 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 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 election incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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