R.S. Pathak, C.J.
1. This is a claimants' first appeal directed against the order of the Motor Accident Claims Tribunal, Kangra Division dismissing their petition for compensation under Section 110-A of the Motor Vehicles Act, 1939.
2. Daya Ram was employed as a truck driver by the respondents Tani Ram, Smt. Raj Kumari, Jagmohan and Chain Lal. They owned Truck No. HIM-4934, which was insured with the Oriental Fire & Life Insurance Company Limited. On February 18, 1968, Daya Ram was driving the truck from Mehatpur to Bahi Kharialti in the Tahsil of Hamir-pur. At Talmehra, at about 6 O'clock in the morning, the truck met with an accident. It overturned and Daya Ram was killed. His widow Smt. dayatri Devi, his daughter Neelam and son Papu filed a claim on May 3, 1968 before the Motor Accident Claims Tribunal under Section 110-A of the Motor Vehicles Act for compensation from the employers and the Insurance Company. The respondents resisted the claim on the ground that the Tribunal had no jurisdiction to entertain it and that it did not disclose any cause of action against them. The Claims Tribunal dismissed the claim by its order deted December 2, 1970. It held that the claim did not disclose any cause of action against the respondents inasmuch as no plea of negligence had been taken therein. It also held that Daya Ram had died during the course of his employment and therefore the claim properly lay before the Commissioner under the Workmen's Compensation Act and not before the Motor Accident Claims Tribunal.
3. The claimants then filed the present appeal.
4. It appears that after the impugned order of the Claims Tribunal, the claimants also applied for compensation on January 8, 1971 before the Commissioner under the Workmen's Compensation Act, and that application is pending.
5. It is urged on behalf of the appellants that it was open to them to make a claim for compensation either under the Motor Vehicles Act or under the Workmen's Compensation Act inasmuch as the death had arisen out of the use of a motor vehicle. It is also urged that a specific allegation of negligence in the claim petition is not necessary and that the fact of negligence could be determined later on in the trial of the claim. For the respondents, the case is that after the Claims Tribunal had dismissed the claim the appellants had elected to apply for compensation before the Commissioner under the Workmen's Compensation Act and therefore the present appeal should not be entertained. It is also urged that a plea of negligence is the sine qua non of a claim made under the Motor Vehicles Act and in its absence the present claim is incompetent.
6. The first point for consideration is whether the claim of the appellants can be entertained under Section 110-A of the Motor Vehicles Act. To appreciate the context in which the point fells to be decided, it is necessary to trace briefly the evolution of the law in this area.
7. Originally, the position appears to have been that in certain cases the employer was liable under the common law to a workman for any injury arising out of and in the course of his employment, and the workman could recover damages against his employer for such injury. Subsequently, the Workmen's Compensation Act, 1923 was enacted as a result of which employers have become the insurers of their servants against accidental injuries and deaths. The Act provides a simple and expeditious remedy. The Schedule to the Act specifies a fixed quantum of compensation depending upon the wages of the workman and the nature of his injuries. The obligation of the employer to pay compensation under the Act is determined by the mere circumstance that it was caused by an accident arising out of, and in the course of, his employment. The liability is independent of any neglect or wrongful act on the part of the employer. It is a liability which springs out of the relationship of master and servant and not out of tort. Works Manager Carriage and Wagon Shop v. Mahabir, AIR 1954 All 132 and S. Suppiah Chettiar v. V. Chinnathurai, AIR 1957 Mad 216. While a claim for damages under the common law has to establish the element of negligence in order to prove the tortious liability of the employer, if the claim is laid under the Workmen's Compensation Act it relies entirely on a liability created by statute. In each case the right to compensation or damages is rooted in a different legal concept. Ordinarily, it could have been possible in certain cases for the claim to lie both under the common law as well as under the Workmen's Compensation Act. To provide against the grant of relief twice over, the Legislature included Section 3 (5) in the Workmen's Compensation Act, which prohibited a workman from claiming a right to compensation under that Act if he had instituted in a civil court a suit for damages in respect of the injury. It was also provided conversely that no suit for damages would be maintainable by a workman in a court of law in respect of any injury if he had instituted a claim to compensation in respect of the injury before a Commissioner for Workmen's Compensation under the Act or if an agreement had been reached between the workman and his employer providing for payment of compensation in accordance with the provisions of the Act. That position obtained until the enactment of the Motor Vehicles Act, 1939.
8. The Motor Vehicles Act, as originally framed and subsequently amended, provided for the constitution of Motor Accident Claims Tribunals for adjudicating on claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. An analysis of Sections 110-A to 110-D shows that while the Act lays down the procedure and powers of the Claims Tribunals, envisages the making of awards by them and provides for appeals against the awards, nowhere does it specify what will be the nature of the legal right or legal obligation which the Claims Tribunals will be called upon to consider. It is apparent that the basis remained the same as under the common law. What the Motor Vehicles Act did was merely to create a machinery and provide for summary adjudication of the claim. State of Punjab v. V.K. Kalia, 1968 Acc CJ 401 = (AIR 1969 Punj 172); Jagjit Singh v. Ram Chandra, 1969 Ace CJ 306 (Delhi); Narottam Dass v. General Manager, Orissa Road Transport Co. Ltd., 1969 Acc CJ 327 (Orissa) and Orissa Co-operative Ins, Society Ltd. v. Bhagaban Sahu, 1971 Acc CJ 49 (Orissa). A claim which otherwise would have been made by way of a suit for damages in an ordinary court of law can now be expeditiously disposed of by a Claims Tribunal. The essential basis of the claim remains the same. As in the case of a suit, it is necessary for the claimant to establish negligence before he can be awarded compensation by a Claims Tribunal. Substantially, the effect of the scheme contained in the Motor Vehicles Act was merely one of substitution of a forum and procedure for the determination of such claim in place of the original common law action in a court of law. Now, the Legislature considered it appropriate that the adjudication of claims for compensation in such cases should not be effected by the civil courts but by Claims Tribunals, and accordingly Section 110-F of the Motor Vehicles Act denies jurisdiction to the civil court to entertain any question relating to any claim for compensation which can be adjudicated upon by the Claims Tribunal, wherever such Claims Tribunal has been constituted.
9. Therefore, the position now was that a claim for compensation can be made either under the Workmen's Compensation Act or under the Motor Vehicles Act. The difference between the nature and legal incident? of a claim under the Workmen's Compensation Act and a claim made in a common law suit continues to be reflected between a claim made under the Workmen's Compensation Act and a claim made under the Motor Vehicles Act. The basis of the two claims differ from each other, and therefore, until 1970 it was possible to obtain relief on both claims. It may be observed that while Section 3 (5) of the Workmen's Compensation Act compels a workman to choose between a common law suit and a proceeding under that Act, a corresponding restriction was wanting in respect of a claim under the Motor Vehicles Act and a claim under the Workmen's Compensation Act. In order to allow a claim only under one of the two Acts, the Motor Vehicles (Amendment) Act, 1969 inserted Section 110-AA in the Motor Vehicles Act. The section provides:
'110-AA. Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both.'
The amendment came into effect on March 2, 1970. With effect from that date a person entitled to compensation can make a claim either under the Workmen's Compensation Act or under the Motor Vehicles Act. He cannot claim compensation under both Acts and thus obtain compensation twice over.
10. In the present case, the appellants had already filed a claim to compensation under the Motor Vehicles Act on May 3, 1968. Section 110-AA had not yet been enacted. On that date the appellants could claim compensation under each of the two Acts. The appellants were not confined to a choice between the two Acts. They were not bound to choose, there was no obligation to do so. They were entitled as of right to pursue both remedies; and on the basis of different legal rights, one purely statutory and the other arising out of tort, they were entitled to compensation separately. That right accrued on the date of the death of Daya Ram. The right was not taken away by Section 110-AA, which is prospective in operation. Consequently, the appellants continued to be entitled to claim compensation both under the Motor Vehicles Act and under the Workmen's Compensation Act. The bar imposed by Section 110-AA of the Motor Vehicles Act cannot be invoked against them. That being so, the objection raised by learned counsel for the respondents that this appeal should not be entertained because the appellants had applied for compensation before the Commissioner under the Workmen's Compensation Act, has no force and must be rejected.
11. Reliance was placed by the respondents on Section 19 of the Workmen's Compensation Act in support of the proposition that if an application for compensation is made under Section 3 of the Workmen's Compensation Act, it is the Commissioner under that Act who alone has jurisdiction to decide the question and that the civil court is barred from dealing with it. Section 19 provides:--
'19. Reference to Commissioners. (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement) the question shall, in default of agreement, be settled by a Commissioner.
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, derided or dealt with by a Commissioner or to enforce any liability incurred under this Act.'
To my mind, Section 19 refers to a liability arising by virtue of the Workmen's Compensation Act. Sub-section (1) speaks of a proceeding under the Act. Such a proceeding relates to the statutory liability created under that Act. And Sub-section (2) specifically mentions 'any liability incurred under this Act'. The liability adjudicated upon by Claims Tribunals under the Motor Vehicles Act is a liability founded in tort and falls outside the scope of Section 19 of the Workmen's Compensation Act.
12. Reference may be made now to the cases cited by the respondents.
13. In Radhabai Bhikaji v. Baluram Daluram, 1970 Acc CJ 403 (M. P.) the Madhya Pradesh High Court held that duplication of proceedings occasioned by a claim instituted under the Workmen's Compensation Act and a claim filed under the Motor Vehicles Act was intended to be avoided and therefore, Section 3 (5) of the Workmen's Compensation Act was enacted. With great respect, it seems difficult to accept the reasons which have found favour with that Court. When Section 3 (5) of the Workmen's Compensation Act was enacted, the Legislature could not have had in mind the Motor Vehicles Act, which was enacted in 1939. Indeed, in 1923, there was no statute which provided for any other tribunal for entertaining claims in respect of such injuries or death. None has been pointed out to us. It seems that when Section 3 (5) of the Workmen's Compensation Act was enacted, the Legislature could have had in mind the ordinary courts only as an alternative forum for entertaining a claim for damages. It will be noted in particular that Section 3 (5) speaks of a 'suit' and as has been well settled a suit is 'a civil proceeding instituted by the presentation of a plaint'. That was laid down by the Privy Council in Hans Raj Gupta v. Dehna Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 PC 63. A proceeding for compensation made under the Workmen's Compensation Act or under the Motor Vehicles Act cannot be confused with a suit. That ingredient of Section 3 (5) has apparently not been noticed by the learned Judges in the cases cited before us. Moreover, when the Madhya Pradesh High Court in Radhabai Bhikhaji (supra) spoke of a duplication of proceedings it was apparently not pointed out to the learned Judges that there is no duplication in the true sense, and that the claim under the Workmen's Compensation Act is based on a statutory liability while that under the Motor Vehicles Act rests on liability in tort. In Shardaben v. M. I. Pandya, 1971 Acc CJ 222 = (AIR 1971 Guj 151) the Gujarat High Court identified Claims Tribunal as a court, and that is also the view which appears to have been taken by the Madhya Pradesh High Court in Krishan Gopal v. Dattatraya, 1971 Acc CJ 372 = (AIR 1972 Madh Pra 125) and again in Mangilel v. Union of India, 1973 Acc CJ 352 = (AIR 1974 Madh Pra 159) (FB). Reliance has been placed by the respondents on Jaswant Rai v. National Transport & General Co. Ltd., 1972 Acc CJ 21 (Punj), but in that case it was not specifically considered that a claim could not lie directly under the Workmen's Compensation Act if a claim had already been made under the Motor Vehicles Act. If the decision in that case can be construed as the respondents would have it, I regret I am unable to agree with the law laid down by it. Following the view taken by the Madhya Pradesh High Court in Radhabai Bhikaji (supra), the Mysore High Court held in Yellubai Torappa Kadam v. Mujawar & Co., 1973 Acc CJ 242 (Mys) that a Claims Tribunal under the M. V. Act could be described as a 'court of law' in the sense used in Section 3 (5) of the Workmen's Compensation Act, and therefore, a claimant could file a claim either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both. The view proceeds on the assumption that because Section 110-F excludes a civil court from adjudicating on claims falling within the jurisdiction of the Claims Tribunals, it is intended that Claims Tribunals could substitute for civil courts and can therefore be regarded as 'courts of law'. With respect, the assumption is not justified The purpose of Section 110-F of the Motor Vehicles Act has already been discussed above, and in my opinion the exclusion of the civil court does not make a Claims Tribunal a court of law, notwithstanding that the Claims Tribunal exercises some of the powers of a civil court under the Code of Civil Procedure, I may also add that, as was observed by the Madhya Pradesh High Court in Radhabhai Bhikaji (supra), there is no material distinction relevant to the point before us between the expression 'civil court' and the expression 'court of law' used in Section 3 (5) of the Workmen's Compensation Act.
14. Having regard to the manner in which the law has developed, to which reference has already been made, I find myself unable to accept the proposition that a claimant, to whom Section 110-AA of the Motor Vehicles Act does not apply, cannot claim compensation both under the Workmen's Compensation Act and the Motor Vehicles Act.
15. I am of opinion that neither Section 3 (5) nor Section 19 of the Workmen's Compensation Act operates as a bar to the consideration of the claim made by the appellants under the Motor Vehicles Act. That claim was maintainable before the Claims Tribunal, and therefore the present appeal is maintainable. The institution of a claim under the Workmen's Compensation Act does not bar the present appeal.
16. The second ground on which the Claims Tribunal has rejected the claim of the appellants is that negligence was not pleaded in the application. It seems to me that inasmuch as a claimant for compensation under the Motor Vehicles Act must establish negligence against the respondents an application under Section 110-A of the Act must contain a clear plea to that effect. Full particulars should be set out. Unless that is done, the right of the respondents to be informed of the case against them is defeated. It is a different matter where all along the parties are aware of the negligence alleged and evidence is led with that awareness. In such a case a Claims Tribunal will be reluctant to dismiss the application for want of such a plea. In the present case, a perusal of the application under Section 110-A shows that it does not contain any plea of negligence. It is true, as was held by the Mysore High Court in M. Krishnappa v. Madras Motor & General Insurance Co., 1971 Acc CJ 240 (Mys), that an application under Section 110-A should not be treated with the strictness customarily applied to a plaint Nonetheless, a plea of negligence is a plea, fundamental to the maintainability of the application, and its absence should ordinarily preclude the Claims Tribunal from trying the claim. In the objections filed by some of the respondents to the application, a specific preliminary objection was taken to the effect that the application did not disclose any cause of action against those respondents. In the course of proceedings it became evident to the appellants that the maintainability of the application was challenged because no plea of negligence had been taken. The appellants should have applied for amendment of the application to include each plea, but nothing was done to the very end before the Claims Tribunal. It is unfortunate that the claim had to be dismissed on that ground. During the hearing of this appeal, learned counsel for the appellants orally applied for permission to amend the application. Without anything more, it is not possible to grant permission. Before an amendment can be permitted, the court must be satisfied that the circumstances of the case, including the conduct of the party during the trial proceeding, warrant such permission. There is no material whatever before us of that nature. If a proper application had been made before us, the question might have arisen whether the case should not be remanded to the Claims Tribunal for further consideration, It may be pointed out that in New Marine Coal Co. v. Union of India, AIR 1964 SC 152 the Supreme Court laid down that a plea of negligence cannot be allowed to be raised for the first time in appeal. Although that is a case where the plea was sought to be taken by the defendant-respondent, the principle applies equally to a plaintiff-appellant. The appellants rely on Seethamma v. Benedict D'Sa, AIR 1967 Mys 11. The case is distinguishable. The statutory form prescribed by the rules in that case was vague, and did not contain the requisite column No. 24 set out in the statutory form applicable in this case. The statutory form prescribed by the Punjab Motor Vehicles Rules, applicable here, requires particulars in regard to 'the cause of accident'. This clearly calls for a plea of negligence.
17. In the result, the appeal fails and is dismissed. There is no order as to costs.
D.B. Lal, J.
18. I agree