National Insurance Co. Ltd. vs Indu Saraswat and Another

Prakash Tatia, J.—Heard the learned Counsel for the parties.

The only question in this appeal is that whether a person having income more than Rs. 40,000 per annum can maintain the claim u/s 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the Act of 1988'')?

According to learned Counsel for the appellant in view of the decision of the Hon''ble Apex Court delivered in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934 (SC), the victim having more than Rs. 40,000 annual income cannot maintain the claim u/s 163-A of the Act of 1988. However, he can get the claim u/s 166 of the same Act. According to the learned Counsel for the appellant, Section 163-A in the Act of 1988 has been inserted with the specific object to give relief to a section of the public having income up to particular level. The Hon''ble Apex Court clearly held that the income of Rs. 40,000 is the cap and no claim of such victim whose income is more than Rs. 40,000 can be entertained by Motor Accidents Claims Tribunal u/s 163-A.

Learned Counsel for the respondents vehemently submitted that such is not the restriction provided for u/s 163-A nor under Second Schedule enacted u/s 163-A. It is also submitted that the structured formula may have given the formula for assessing the compensation for persons having income up to Rs. 40,000 but a person who has income more than Rs. 40,000 can reduce his claim to the limit provided for claims under 163-A of the Act of 1988 because of the reason that he is also a person who is not willing to go for long-drawn litigation u/s 166 of the Act of 1988 and in all matters the litigants are allowed to reduce their claim to come within the pecuniary jurisdiction of the court. It is also submitted that by reducing the claim, the claimants are losing more and it is because of this reason that he cannot afford the long litigation in a case where victim who was earning more lost his life in the accident which resulted into more pecuniary loss to the claimant which may be sufficient ground for not contesting the claim u/s 166 so that the person in harness may get the relief whatever that may be.

I have considered the submissions of learned Counsel for the parties and perused the judgment of the Hon''ble Apex Court delivered in the case of Deepal Girishbhai Soni 2004 ACJ 934 .

The argument advanced by learned Counsel for respondents may be attractive but once the matter has been considered by the Hon''ble Apex Court in Deepal Girishbhai Soni''s case 2004 ACJ 934 , the Hon''ble Apex Court was conscious of all material facts, which were relevant for the purpose of deciding the issue and there appears to be no reason to think for a moment that the Hon''ble Apex Court might not have considered any of the aspects before holding that Rs. 40,000 annual income is the cap for maintaining the claim u/s 163-A of the Act of 1988. At this juncture, it will be relevant to mention here that in Deepal Girishbhai Soni''s case (supra), the question was that whether the award u/s 163-A is interim and claimants are entitled to pursue their claim u/s 166 and in that case, the Hon''ble Supreme Court held that the award u/s 163-A is full and final settlement of the claim and scheme envisaged u/s 163-A leaves no manner of doubt that the rights and obligations of the parties are to be determined finally. Section 163-A does not provide for set off against higher compensation like u/s 141. Meaning thereby, a person who is entitled to submit application u/s 163-A of the Act of 1988 having income up to Rs. 40,000 per annum is given choice to avail remedy as per his wish by lodging claim u/s 163-A or u/s 166 of the Act of 1988. Once he chooses Section 163-A then he is entitled for determination u/s 163-A and he cannot thereafter contend that he was entitled to more compensation and that he got the interim compensation or provisional compensation u/s 163-A. Therefore, the person who may have been entitled to more claim u/s 166 because of the reason that victim''s annual income was more than Rs. 40,000 cannot avail this benefit of Section 163-A. The legislative wisdom of fixing Rs. 40,000 is also challenged by learned Counsel for the respondents but for that validity of section is not under challenge and there appears to be no reason for such a challenge.

In view of the above reasons, the appellant''s appeal succeeds as the claimant specifically pleaded that the victim had monthly income of Rs. 11,321 which is beyond Rs. 40,000 per annum.

In view of the above reasons, the appeal is allowed. Award dated 31.10.2007 passed by the Motor Accidents Claims Tribunal, Bikaner in Claim Case No. 156 of 2005 is set aside. However, if the claimant is entitled to avail any remedy, she shall be free to avail the remedy but only in accordance with law.