New India Assurance Co. Ltd. vs Bhavani Nanji Pachanbhai Patel and Others

J.R. Vora, J.—This appeal is admitted and upon request of learned Counsel for the parties, this appeal is taken up today for final hearing.

Heard learned Counsel Mr. Parikh for the appellant and learned Advocate Mr. H.M. Modi for respondent Nos. 1 and 2, original claimants.

Original claimants filed M.A.C.P. No. 906 of 1997 before learned Motor Accident Claims Tribunal, Kachchh at Bhuj u/s 166 of the M.V. Act for obtaining compensation for the death of Pushpaben N. Bhavani on 21st August, 1997 in vehicular accident. The other opponents of this appeal are owners and drivers of the vehicles involved in the accident.

In the aforesaid M.A.C.P. No. 906 of 1997 at Ext. 50 in shape of interim application, request was made by the claimants to award compensation u/s 163 A of the M.V. Act.

Learned Tribunal was pleased to grant the abovesaid application at Ext. 50 on 15th January, 2001 awarding compensation of Rs. 1,94,500 to the claimants under Structured formula. It is noteworthy that the claimants treated application at Ext. 50 as an interim application and continued to proceed with M.A.C.P. No. 906/97 for determination of compensation under fault liability and hence, this First Appeal is preferred by original opponent No. 3, the New India Assurance Co. Ltd. The main grievance, which is voiced by the appellant through his appeal is in respect of entitlement of the claimant to receive compensation under both schemes i.e. (1) on no-fault liability and structured formula and (2) fault liability.

It is vehemently urged that the claimants either claim compensation u/s 163-A or u/s 166 of the M.V. Act, but not on both the provisions.

Civil Application No. 3897 of 2006 is preferred by original claimant in the First Appeal for direction to the Tribunal to disburse an amount of award passed by the Tribunal u/s 163 A of the M.V. Act. It is also pertinent to note that in Civil Application No. 8708 of 2002, this Court directed the Insurance Co. to deposit the amount and stay of execution of the award was granted. Further directions of this Court were in regard to investment of the deposited amount.

After hearing the learned Counsel and going through the record, now, it clearly appears that M.A.C.P. No. 906/97 is withdrawn by claimants and the same stands disposed of as withdrawn. Learned Advocate for the claimant placed on record in C.A. No. 3897 of 2006, copy of the withdrawal pursis filed at Ext. 67 on 1st April, 2006 and the order passed by the Tribunal on the same day permitting the withdrawal of said M.A.C.P. No. 906/97.

In the above view of matter, now award passed by the Tribunal u/s 163-A of the M.V. Act becomes final and the grievance voiced by the appellant in F.A. No. 2371 of 2002 does not survive. True, it is that the compensation u/s 163-A is final in nature and cannot be altered or varied in any other proceedings. Remedy u/s 163-A is not in addition to the remedy available u/s 166 of the M.V. Act. Therefore, remedy for compensation under Sections 163-A and 166 of the M.V. Act is independent of each other. It is for the claimant to elect or opt for either of them. This law is settled by the Apex Court in the matter of New India Assurance Co. Ltd. Vs. Raghu, and in the matter of Girishbhai Soni and Ors. v. United Insurance Co. Ltd. Baroda, as reported in I (2004) ACC 728 (SC) : 2004 (2) GLR page No. 1597.

In this view of matter, since M.A.C.P. No. 906/97 so far as it related for determination of compensation on the ground of fault liability does not survive, this appeal filed on the above ground stands dismissed.

Civil Application No. 3897/2006 for direction also stands dismissed as the same would not now survive. The Tribunal may disburse the amount deposited by the appellant to the claimant in accordance with award passed u/s 163-A of the M.V. Act.