New India Assurance Co. Ltd. vs Rajesh Kumar Sharma and another

Mahesh Chand Sharma, J.—This appeal has been filed against the order and award dated 11.7.2007 passed by the Judge, M.A.C.T. (Essential Commodities Act), Jaipur in Claim Petition No. 564 of 2004 by which he has awarded Rs. 1,20,000 with interest at the rate of 6 per cent per annum. The brief facts of the case are that Rajesh Kumar, respondent No. 1, has filed a claim petition u/s 163A of Motor Vehicles Act, 1988 (hereinafter to be referred as ''the Act of 1988'') before the Motor Accidents Claims Tribunal, Jaipur City, Jaipur to avail compensation for the injuries sustained by him in an accident which took place on 17.7.2001. The claimant along with one Hemendra Sharma was coming on 17.7.2001 from Delhi to Jaipur in a Maruti van No. RJ 14-3C 8986 at about 11.30 p.m. The said van while trying to save a cow overturned occasioning injuries to the claimant.

An F.I.R. has been lodged with the police. After investigation, the police has submitted the AIR and the same was accepted on 28.8.2001 by the concerned Magistrate. The claim petition was filed before the Judge, Motor Accidents Claims Tribunal. The appellant has also filed the reply. Issues were framed. Evidence were recorded and after that the learned Judge, Motor Accidents Claims Tribunal, has passed an award of Rs. 1,20,000 with interest. Being aggrieved by the impugned award, this appeal has been filed by New India Assurance Co. Ltd.

Learned counsel for the appellant has pointed out that the claim petition is not entertainable u/s 163A of the Act of 1988 for the simple reason that the claimant''s annual income exceeded the statutory limit of Rs. 40,000. The claimant had averred in para 6 of the claim petition that his monthly income was Rs. 5,000. As per claimant''s deposition and salary certificate, the claimant''s monthly income was Rs. 4,000 which amounts to an annual income of Rs. 48,000. Learned Tribunal too while adjudicating on issue No. 4 has concluded the claimant''s annual income to be Rs. 48,000.

A three-Judge Bench of the Hon''ble Supreme Court of India in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., 2004 ACJ 934 (SC), has held that only those victims whose annual income does not exceed Rs. 40,000 can file claim petition u/s 163A of the Act of 1988 whereas rest having annual income in excess of Rs. 40,000 can file the claim petition only under Chapter XII (section 166) of the Act of 1988. The Apex Court observed in paras 42, 51 and 52 as under:

(42) Recommendations of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views pursuant whereto several sections were amended. Section 163A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Government from time to time.

(51) The scheme envisaged u/s 163A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000 or less, is covered thereunder whereas sections 140 and 166 cater to all sections of society.

(52) It may be true that section 163B provides for an option to a claimant to either go for a claim u/s 140 or section 163A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the mind of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either u/s 163A or section 166 does not arise. If the submission of the learned counsel is accepted, the same would lead to an incongruity.

The learned counsel for the appellant has contended that on the basis of the aforementioned judgment delivered by the Hon''ble Apex Court, the claim petition be dismissed.

On the other hand, learned counsel for the respondents. Mr. Sandeep Mathur, has contended that looking to the facts and circumstances of the case as well as the fact that the claimant is a poor person and the same question has not been raised by the appellant in their written statement that the claimant had no chance to file claim under the provisions of law. Learned counsel has further contended that although claim of the claimant is maintainable and the aforesaid judgment is not applicable in the facts and circumstances of the present case, the learned court below has rightly assessed the annual income of the claimant as Rs. 48.000 u/s 163A of the Act of 1988. I do not think it proper to confirm the award passed by the Tribunal and same is hereby set aside. This appeal is allowed. However, looking to the facts and circumstances of the case, it would be appropriate for the claimant to file a claim petition before the appropriate forum within a period of one month from the date of receipt of certified copy of this order.

Appeal allowed.