Kalipada Roy VsShibani Saha

Deepak Gupta, C.J.—This appeal by the owner who has been held liable to pay compensation is directed against the award dated 17-05-2008 passed by the learned Motor Accident Claims Tribunal, Court No. 3, West Tripura, Agartala in case No. T.S. (MAC) 246 of 2003 whereby the owner was held liable to pay compensation of Rs. 3,19,000/- under section 163-A of the Motor Vehicles Act.

The main point raised by Mr. S. Bhattacharji, learned counsel appearing on behalf of the owner-appellant, is that the claim petition filed under section 163-A of the M.V. Act itself was not maintainable because the claimants themselves have claimed that the monthly income of the deceased was Rs. 6,000/- per month or Rs. 72,000/- per year and, therefore, since the income is more than Rs. 40,000/- per annum the claim petition is not maintainable. Sri Bhattacharjee has referred to a Division Bench judgment of this Court in Smt. Sukanya Kalai and others v. Sri Dilip Kr. Paul and another [MAC APP. 39 of 2003] wherein the following question was referred for decision of the Division Bench:--

"Whether a petition under Section 163-A of the Motor Vehicles Act, 1988 is maintainable even where the income of the victim or the injured or the deceased is more than Rs. 40,000/- per annum?"

The Division Bench after referring to the provisions of section 163-A of the Act and the Schedule 2 annexed thereto and after referring to the judgment in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, and Sarla Verma''s case etc. finally referred to the judgment of the Apex Court in Puttamma and Others Vs. K.L. Narayana Reddy and Another, and held as follows:--

"[8] in fact this matter is no longer res-integra. The Apex Court in Puttamma and Others Vs. K.L. Narayana Reddy and Another, has dealt with this matter in detail. One of the issues raised before the Apex Court was that the Central Government should be directed to amend Second Schedule in light of the present cost of living and current rate of inflation and increased life expectancy. While considering this plea the Apex Court in a very erudite judgment after dealing with the entire law on the subject held as follows:

"40. Perusal of Second Schedule shows that the legal heirs of the deceased person having a annual income, minimum Rs. 3000/- and maximum Rs. 40,000/- could only derive benefit under Section 163A of the Act, 1988. Legal heirs of the deceased person whose income is more than Rs. 40,000/- per annum i.e. approximately Rs. 3,600/- per month cannot derive advantage of the second Schedule.****"

(emphasis supplied)

[9] Thereafter the Apex Court has taken note of the amendment Bill of 2012 seeking to amend Section 163A of the M.V. Act. We must point out that the Apex Court has thereafter considered the increase in price rise etc. and held as follows:

"52. Keeping in view the cost of living, the Central Government is required to amend the Second Schedule. The Second Schedule was enacted by Act 54 of 1994 w.e.f. 14th November, 1994. Now more than 19 years have passed but no amendment has been made. Cost of living has gone up many fold.

In view of finding recorded above, we hold that Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable, due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."

[10] The final direction in this regard are in para-56 which reads as follows:

"56. The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163-A(3), but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under sub-section (3) of Section 163A of Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of Rs. 1,00,000/- (rupees one lakh) and persons more than 5 years of age shall be entitled for fixed compensation of Rs. 1,50,000/- (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under Section 163A of the Act, 1988."

Therefore, after giving a direction to the Central Government to amend the Second Schedule the only other direction the Apex Court has given is that till such amendment is made by the Central Government or Parliament in cases of children upto the age of 5(five) years minimum amount of Rs. 1,00,000/- shall be awarded and in case of a person who is more than 5(five) years of age minimum amount of Rs. 1,50,000/- shall be awarded. Other than that there is no change in the Schedule.

This is the latest judgment of the Apex Court and it has clearly held that the benefit of the Second Schedule can only be derived by those persons where the income of the victim is up to Rs. 40,000/-.

[11] in our view, this Court is bound to follow the judgment of the Larger Bench delivered in the Deepal Girishbhai Soni''s case wherein it has been held in no uncertain terms that, the section of society whose annual income is more than Rs. 40,000/- is not entitled to file a petition under Section 163A of the Act. This view has also been approved in Puttamma''s case (supra).

[12] Therefore, the question which was placed for decision before us has to be answered by saying that a claim petition under Section 163A of the M.V. Act would not be maintainable where the income of the victim or the injured is more than Rs. 40,000/- per annum."

In this view of the matter, the petition under section 163-A of the M.V. Act is not maintainable where the income of the deceased or the injured is more than Rs. 40,000/-.

Hence, the appeal is allowed. The award of the learned Tribunal is set aside only on the ground that the petition under section 163-A was not maintainable. The claimants shall be at liberty to file a petition under section 166 of the M.V. Act, if otherwise maintainable under the law.

Send down the lower court records forthwith.