1806wp1409.09.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETIITION NO. 1409 OF 2009 Najma bee wd/o Sheikh Faruq and 5 others. : PETITIONERS -: Versus :- Mohammad Latif Khan and 3 others. : RESPONDENTS ......................................................................................................................................... Shri V. M. Deshpande, Advocate for the petitioners. Shri M. B. Joshi, Advocate for respondent No. 2 ......................................................................................................................................... CORAM : R. M. BORDE, J. DATED : 18TH JUNE, 2010. P. C. : 1. An application tendered by the petitioners-original claimants under Order 23 rule 1 of the Code of Civil Procedure for amendment of part of the claim petition has been turned down by the Motor Accident Claims Tribunal and the said order passed by the Tribunal on 27/01/2009 is subjected to challenge in this petition. 2. The petitioners are original claimants and they have presented a claim petition under Section 153 of the Motor Vehicles Act claiming compensation to the tune of Rs. 5,00,000/-. It is stated by the claimants in the claim petition that the deceased was driver and his monthly income was Rs. 4,000/- per month. The claimants, however, requested to permit them to 1806wp1409.09.odt 2/4 scale down the income as stated in the claim petition and want to contend that they be permitted to stipulate the annual income of the deceased as Rs. 40,000/-. The application was opposed by the respondents contending that such a course is not permissible and the admission given during the examination by the claimants cannot be permitted to be withdrawn by the Tribunal. However, after considering the rival contentions of the parties, the Tribunal was pleased to reject the application. 3. It is not in dispute that the claimants averred in the claim petition that the income of the deceased was Rs. 4,000/- per month, i.e. Rs. 48,000/- per annum. An application under Section 163-A of the Motor Vehicles Act can be presented in case the annual income of the claimants or the deceased is not more than Rs. 40,000/-. Admittedly, in the instant matter, as averred by the claimants so also as deposed in the deposition, the monthly income of the deceased was stated to be Rs. 4,000/- per month i.e. Rs. 48,000/- per year. Thus, considering the admission recorded in the claim petition as well as in the deposition of the claimants, the claim petition would not lie under Sec.163-A of the Act considering the annual income of the deceased. The application seeking amendment thereby putting a cap on the income to the extent of Rs. 40,000/- appears to have been misconceived and in my view, such a course is not permissible. 4. A reference can be made to a judgment of the Apex Court in the matter of Deepal Girishbhai Soni & others Vs. United India Insurance Co. Ltd., Baroda reported in ALL MR (S.C.) 674. The matter was referred to a Larger Bench of the Apex Court for consideration of the correctness of view adopted in 1806wp1409.09.odt 3/4 the matter of Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala & others reported in (2001) 5 SCC 175. The Apex Court has concluded in the judgment as below: “....We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act”. The judgment of the Apex Court in the case of Deepal Girishbhai Soni & others Vs. United India Insurance Co. Ltd., Baroda was relied upon by the learned Single Judge while dealing with a similar situation as in the instant matter. The appeal was taken up for consideration by the learned Single Judge of this Court considering the objection raised by one of the parties contending that the claim petition is not entertainable under Section 163-A of the Act as annual income of the deceased was more than Rs. 40,000/- per annum. The argument in respect of putting a cap on income and bringing the same down up to a permissible limit was also considered by the learned Single Judge. In paragraph 3 of the judgment, it is observed thus; “....According to the assertion made in the claim petition filed by the first and fourth respondents, the age of the deceased at the 1806wp1409.09.odt 4/4 time of accident was 36 years and he was drawing a salary of Rs. 7,211/- per month. The Apex Court has held that the remedy under Section 163-A of the said Act has been created for a specified class of the society having income up to Rs. 40,000/- per year. The earlier view was that it is possible to notionally bring down the income of the deceased to Rs. 40,000/- for bringing the claim petition within the purview of Section 163-A of the said Act. However, now the law on this point is very clear and the remedy under Section 163-A is available only to those, whose income is up to Rs. 40,000/- per year. The claim petition of the others will have to be decided in accordance with Section 166 of the Motor Vehicles Act, 1988. In the order dated 19-06-2008 in First Appeal No. 979 of 2007, this Court has taken a view that the such claim petition under Section 163-A is not maintainable.” (2008(5) All M R 599 – M/s New India Assurance Co. Ltd. Vs. Latabai w/o Madhav Sarode & others) 5. Considering the law laid down by the Apex Court as well as the judgment of the learned Single Judge of this Court quoted above, I am of the view that the Tribunal has dealt with the issue correctly and turned down the application tendered by the petitioners. No case is made out for interference in the matter, the petition is, therefore, stands dismissed. No costs. JUDGE wwl