JUDGMENT OF ARCHER J.
The plaintiff, as administrator of the estate of the late Kwame Arhin, claims from the defendants jointly and severally damages as compensation for the benefit of the dependants and also damages for the benefit of the estate of the deceased. The plaintiff's statement of claim is to the effect that on or about 11 December 1965, on the Bibiani-Jereso motor road, the deceased sustained serious physical injuries as a result of the grossly negligent driving of vehicle No. AT 1803 by the first defendant who at the material time was the servant or employee or both of the second defendant and who was driving the said vehicle in the course of his employment.
The defendants denied any negligence on their part and maintained that as they had paid compensation under the Workmen's Compensation Act, 1963 (Act 174), the present action was barred. Mr. Totoe, learned counsel for the defendants, referred me to two judgments delivered by Apaloo J., as he then was, at the Kumasi High Court, in support of the defendants' contention that the plaintiff 's present action was not maintainable. I have read the ruling and judgment in Akufo v. Issaka delivered at Kumasi, the first on 24 May 1962, unreported, and the second on 1 October 1962, reported in [1962] 2 G.L.R. 88 very carefully and although I cannot quarrel with their correctness, I am of the view that the facts before Apaloo J. were different. There the workman had been paid compensation without realising that the payment would debar him from claiming damages again under the common law. The workman was advised to refund the award paid under the Workmen's Compensation Ordinance, Cap. 94 (1951 Rev.), in order to take a fresh action claiming damages for negligence under the common law. There the workman was alive.
But the facts before me are different. Mr. Abban, learned counsel for the plaintiff, has submitted that not all the dependants in the present action were paid under the Workmen's Compensation Act, 1963, and moreover the action has been taken to recover damages for the benefit of the estate of the deceased. In the present action, the workman is dead and the action is for the benefit of dependants on the one hand and for the benefit of the estate of the deceased [p.794] on the other hand. I have therefore decided to consider first of all whether this action is maintainable. Section 24 (1) and (2) of the Workmen's Compensation Act, 1963 (Act 174), provide:
"(1) Where the injury was caused b
