JUDGMENT K.P. Singh, J.
1. Aggrieved by the decision of Mr. M.S. Premi, Motor Accidents Claims Tribunal Judge/Special Judge, Shahjahanpur, dated 2nd February, 1984, in M.M. Case No. 21 of 1982, Shashi Devi v. Mohd. Ahsan alias Mohd. Aslam, the claimant-appellant has appealed to this court under Section 110-D of the Motor Vehicles Act. Yogendra Kumar Sharma was cleaner on truck No. UTX 5000. He was the brother of the claimant-appellant. On 16.10.1982 the aforesaid Yogendra Kumar Sharma died in an accident. He was under the employment of opposite party Nos. 1 and 2 in the claim giving rise to this appeal. The claimant had put forward a claim to the tune of Rs. 1,38,000/- due to death of her brother Yogendra Kumar Sharma.
2. Opposite party Nos. 1 and 2, namely, Mohd. Ahsan alias Mohd. Aslam and Anis Ahmad filed joint written statement and alleged that the claimant-appellant was not related to the deceased and opposite party Nos. 3 and 4 are responsible for the payment of compensation, if any and that the cleaner died because of his own fault and various other pleas were taken to negative the claim. New India Assurance Co. Ltd. also filed a written statement and contested the claim of the claimant-appellant.
3. A number of issues were framed by the Tribunal and the claim of the claimant-appellant has been decreed to the tune of Rs. 9,000/- as compensation to be paid by the insurance company. Dissatisfied with the decision of the Tribunal the claimant-appellant has approached this court through the above-noted appeal.
4. We have heard learned counsel for the parties in this appeal. The main argument of the learned counsel for the appellant before us is that the Tribunal has acted illegally in relying upon the provisions of Workmen's Compensation Act in determining compensation to be awarded to the appellant.
5. Learned counsel for the respondents has not been able to refute the contentions raised on behalf of the claimant-appellant.
6. Section 110-AA of the Motor Vehicles Act, 1939 provides as below:
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 claim for compensation under this Act and also under the Workmen's Compensation Act, 1923 (8 of 1923) the person entitled to compensation may, without prejudice to the provisions of Chapter VII-A, claim such compensation under either of those Acts but not under both.
7. In the present case the claimant-appellant has preferred her claim under the provisions of Motor Vehicles Act. The Tribunal while deciding issue No. 4 has observed that the claim is under the provisions of Motor Vehicles Act, therefore, Tribunal has jurisdiction to deal with the claim.
8. It is noteworthy that while deciding issue No. 5 the Tribunal has made the following observation:
For a person drawing Rs. 400/- p.m. as salary, the Workmen's Compensation Act provides compensation in case of death at Rs. 9,000/- because the claimant is not dependent upon the deceased. In my opinion, the amount of Rs. 9,000/- will be proper compensation for shock and pain suffered by her and expenses of last ceremony incurred by her, because the death took place due to the rash and negligent driving. The insurance company is liable to pay the amount of compensation to the claimant.
In our opinion the trial court has acted illegally in determining the amount of compensation by placing reliance upon the provisions of Workmen's Compensation Act, especially when it had observed that it had jurisdiction to deal with the claim under the provisions of Motor Vehicles Act. On the facts and circumstances of the case we think it proper that the Tribunal should be asked to redetermine the compensation to be paid to the claimant-appellant relying upon the provisions of the Motor Vehicles Act, 1939, which is applicable to the facts and circumstances of the case. Since the learned counsel for the respondents has not been able to satisfy us that the approach of the Tribunal is correct, we think that the decision of the Tribunal suffers from substantial error of law and it deserves to be set aside.
9. For the foregoing discussion this appeal is allowed and the decision of the Tribunal awarding compensation of Rs. 9,000/- to the claimant-appellant placing reliance upon the provisions of Workmen's Compensation Act is hereby set aside and the case is sent back to the Tribunal for redetermining of the compensation to be awarded to the claimant-appellant under the provisions of Motor Vehicles Act. However, parties are directed to bear their own costs.