Chandra Kanta Changmai vs Branch Manager, The New India Assurance Co Ltd And Ors

Heard learned counsel Mr. A. D. Choudhury for the appellant and Mr.S.K. Goswami, learned counsel for the respondent Insurance Co.

This appeal is filed by the claimant against the judgment and award dated 17/08/2011 passed by the Motor Accident Claims Tribunal, Nagaon in

MAC Case 52/2006.

The brief facts leading to the present appeal are that the claimant Chandra Kanta Changmai was driving the vehicle bearing registration No. AS

30/2744 and proceeding from Nagaon to Sivasagar. When it reached Latabari under Bokakhat P.S. one vehicle bearing registration No. AS 01/P-

7002, which was coming from the opposite direction, collided with the vehicle driven by the claimant from the front side and as a result of the accident,

he sustained injury. The claimant filed an application before the MACT, Nagaon u/s 163-A of the MV Act praying for compensation. The claimant

averred in the claim petition and also adduced evidence to the effect that his income was Rs. 6,000/- per month. The learned tribunal dismissed the

claim petition.

Aggrieved by the said judgment and award the claimant preferred the instant appeal.

The impugned judgment shows that learned tribunal dismissed the claim petition on the sole ground, that the income of the claimant being more than

Rs. 40,000/- per annum, petition u/s 163-A M.V. Act was not maintainable. Placing reliance on the decision of this Court in New India Insurance Co.

Ltd.-VS- Purnima Singha & Ors. reported in 2016 (2) GLT 862 and also the decision of the Apex Court in Dipal Girish Bhai Sony and Ors. â€"VS-

United India Insurance Co. Ltd, learned counsel for the appellant submits, that though the claim petition was held to be not maintainable u/s 163-A of

the M.V. Act, tribunal ought not to have dismissed the claim petition, rather ought to have decided the claim petition under other provision permissible,

keeping in view the social object of the legislation. Per contra, the contention of the learned counsel for the respondent is that since the claim petition

was not maintainable u/s 163-A of the M.V. Act, tribunal could not have granted compensation under Section 166 of the M.V. Act. To buttress the

submission, learned counsel also placed reliance on the decision of the Apex Court in Dipal Girishbhai Soni & Ors. -VS- United India Insurance Ltd.

(Supra) and National Insurance Co. Ltd.-VS- Lakshmi Thapa & Ors. reported in 2014 (5) GLT 691.

The M.V. Act (as amended in 1994) provides the distinct provision for granting compensation on the basis of no-faulty liability u/s 163 A of the Act.

Section 141 of the M.V. Act clearly lays down, that except the claim petition u/s 140 and 163 A, all other claim is required to be decided on the basis

of fault liability. The question raised in this appeal is that once the tribunal after hearing the parties came to the conclusion, that the petition u/s 163 A

of the M.V. Act was not maintainable, because of the income of the claimant being more than Rs. 40,000/- per annum, could the tribunal decide the

claim or award compensation under section 166 M.V. Act.

The controversy raised in this appeal is no longer res integra. The Apex Court in Oriental Insurance Co. ltd. â€"VS- Hansh Raj Bhai V. Kodala

(Supra) observed that limiting the annual income of Rs. 40,000/- per annum under the 2nd schedule of the MV Act as a cap, in a claim u/s 163-A of

the M.V. Act based on no-fault liability, the compensation can be awarded taking the income of Rs. 40,000/- as cap, meaning thereby, that even if the

income of the claimant or deceased is beyond the limit of Rs. 40,000/-, it is permissible to award compensation limiting income of the claimant or

deceased to Rs. 40,000/- per year.

A three-Judge Bench of the Apex Court in Deepal Girishbhai Soni (Supra) did not approve the above ratio in Kodala’ s case and held in para

67 of the judgment as under :-

“We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person

invokes provisions of Section 163-A, the annual income of Rs. 40,000- per annum shall be treated as a cap. In our opinion, the proceeding under

Section 163-A, being a social security provision, providing for a distinct scheme, only those, whose annual income is up to Rs. 40,000/- can take the

benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.â€​

In view of the above proposition, the question that falls for consideration here is, if in a proceeding u/s 163-A of the M.V. Act, the tribunal finds that

in view of the structured formula and the income of the claimant being more than Rs. 40,000/- per annum, the claim u/s 163 of the MV Act cannot be

entertained, whether the tribunal can award the compensation under any other provision or u/s 166 of the Act. This question was also considered by

the Apex Court in Deepal Girish Bhai’s case in para 59 and 60 of the judgment, wherein, the Apex Court observed as under :-

“The question may be considered from different angles. As for example if in a proceeding u/s 166 of the Act, after obtaining compensation u/s

163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the

deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refuses to grant any compensation; would it be within

the jurisdiction of the tribunal to direct refund either in whole or in part of the amount of compensation already paid on the basis of structured formula

? Furthermore, if in a case the tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding

compensation u/s 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof. The answer to both the

aforementioned questions must be rendered in negative. â€​

What, therefore, follows from the above observation of the Supreme Court is that once the tribunal finds that compensation cannot be awarded u/s

166 of the Act it cannot suo-motto decide the claim u/s 163-A of the Act. Therefore, as a corollary, if a claim petition is found not maintainable u/s

163-A of the M.V. Act, Tribunal cannot decide it u/s 166 or any other provision under Chapter XII of the M.V. Act.

The decision of this Court in Purnima Singha & Ors. (Supra), on the factual matrix and also in view of the ratio laid down in Deepal Girishbhai

Soni (Supra) will be of no help to the appellant.

The proposition of law being amply clear, as per the ratio laid down in Deepal Girishbhai Soni’s case, the appeal is without merit and deserves

to be dismissed.

Accordingly the appeal stands dismissed.

Send back the LCR.