Kanduribai vs Kailashchand

Rohit Arya, J.—By this petition under Article 227 of the Constitution of India challenge is made to the order passed on 20/9/2013 by the Member, Motor Accident Claims Tribunal, Vidisha in claim case No. 12/13. By the impugned order claimants/petitioners'' application under Order VI Rule 17 of CPC has been rejected.

The claimants/petitioners while instituting claim for compensation had stated that income of the deceased-Ramkaran Singh during his lifetime was Rs. 5,000/- per month plus night allowance Rs. 100/- per day as a driver. The claim was adjudicated, however, at the instance of owner of the vehicle an application under Order IX Rule 13 of CPC was allowed, award passed on 31/3/2011 was set aside and the case was remanded for trial afresh by affording an opportunity to respondent/owner. Upon remand, the insurance company filed an application under Order VI Rule 17 of CPC raising a ground that in the light of fact that claimants have shown income of deceased-Ramkaran Singh Rs. 5,000/- per month plus night allowance Rs. 100/- per day, the annual income of the deceased exceeds Rs. 40,000/- and, therefore, claim was not sustainable u/s 163A of the Motor Vehicle Act (for brevity ''the Act"). This amendment was allowed. Consequent thereupon, claimants filed an application on 21/6/2013 under Order VI Rule 17 of CPC for substituting the words "Rs. 40,000/- per year" in place of "Rs. 5,000/- per month plus night allowance Rs. 100/- per day" purportedly to bring the case within the scope of Section 163A of the Act. The aforesaid amendment has been turned down by impugned order on 20/9/2013 in the light of the judgment of the Supreme Court reported in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, .

The counsel for petitioners submits that the aforesaid amendment does not change the nature of the suit and, therefore, the Tribunal ought to have allowed the aforesaid amendment.

Per contra, respondent''s counsel submits that once an admission has been made in the pleadings, same cannot be permitted to be withdrawn by seeking amendment in the light of judgment of Hon''ble Supreme Court reported in Gautam Sarup Vs. Leela Jetly and Others, .

Having heard counsel for the parties, this Court is of the opinion that true it is that once petitioners/claimants have stated in the claim petition income of the deceased as Rs. 5,000/- per month plus night allowance Rs. 100/- per day during his lifetime while serving as a driver, they cannot be permitted to substitute income of deceased as Rs. 40,000/- per year, hence, no illegality is found in the order of the Tribunal while rejecting the application of petitioners/claimants. However, in the fitness of things, it would be just and expedient to observe that the Hon''ble Supreme Court in the case of Deepal Girishbhai Soni (supra) has held that Section 163A was introduced in the Act by way of social security scheme. It is a Code by itself. By insertion of Section 163A Parliament intended to provide for the making of an award consisting of predetermined sum without insisting on a long-drawn-out trial or without proof of negligence, which caused the accident. It is independent of Section 140 as well as Section 166 of the Act; a special provision for payment of compensation on structured formula basis. The compensation determined and awarded under this Section is final.

Having read the provisions as contained in Section 163A of the Act conjointly with the second Schedule appended to the Act in the context of aforesaid authoritative pronouncement of law by the Supreme Court, this Court is of the view that different age groups, corresponding multipliers and different slabs of income with ultimate final amount of compensation have been provided in case of death (Relevant for the purpose of this case). Besides, note appended thereto contemplates that the amount of compensation so arrived at in case of death, 1/3rd thereof shall be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. While determining compensation the Tribunal is required to apply the factor of income either based on conclusive documentary evidence or on the basis of findings recorded in that behalf. In the instant case, as the petitioners have merely made an assertion that income of the deceased was Rs. 5,000/- per month plus night allowance Rs. 100/- per day while he was alive and performing the duties of driver, there is no documentary conclusive evidence produced, hence, the Tribunal is required to determine income of the deceased allowing the parties to lead evidence in that behalf while applying the factor of income to determine the amount of compensation payable to the claimants.

With the aforesaid observations, the writ petition is disposed of.