IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No. 21/2004 Reserved on:5.8.2008 Decided on:22.9.2008 Oriental Insurance Company Limited. …Appellant. Versus Kamla Gupta and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. For the Appellant : Mr. Ashwani Sharma, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondents No. 1 to 4. Mr. Rajnish Maniktala, Advocate for respondent No.5. Rajiv Sharma, J. This FAO is directed against the award dated 9.5.2003 passed by the learned Motor Accident Claims Tribunal (II), Shimla in MAC petition No. 50-S/2 of 1996. The brief facts necessary for the adjudication of this appeal are that respondents No.1 to 4 preferred a petition under section 163-A of the Motor Vehicles Act, 1988. The petition was filed by mother, brother and sisters of deceased Sanjay Gupta, who was driver in truck No. HP-11-702 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 owned by respondent No.5. The accident took place on 11.2.1996 at 10.00 A.M. near Lalru, District Patiala. The appellant-insurance company contested the claim petition primarily on the ground that the vehicle was not ensured with it and at the relevant time, the vehicle was being driven in contravention of the provisions of the Motor Vehicles Act, 1988 and the terms and conditions of the insurance company. Respondent No.5 did not contest the petition and was proceeded exparte. The learned Motor Accident Claims Tribunal awarded a sum of Rs. 4,00,000/- with interest @ 9% per annum to respondent No.1 and respondent No.2 and 3 were awarded a sum of Rs. 21,000/- each with interest @ 9%. During the course of the pendency of this FAO, the appellant-company has preferred application CMP No. 674/2007 under order 41 Rules 2 and 3 (3) of the Code of Civil Procedure seeking leave of this Court to raise additional ground in appeal by way of amendment of memorandum of appeal. The appellant has prayed for including the following ground in the memorandum of appeal: “4.A. That since the income of deceased as alleged in the claim petition was more than Rs. 40,000/- per annum, the claim petition filed by the claimants invoking the provisions of Section 163-A of the Motor Vehicles Act, 1988 was not maintainable and the same was liable to be dismissed.” Respondents No.1 to 4 filed reply to the application. It is evident from the ground taken in the application that the plea raised is a pure question of law. This ground ought to have been taken by the insurance company before the learned Motor Accident Claims Tribunal. This ground has not specifically been taken as per the reply filed by the insurance company before the learned Motor Accident Claims Tribunal, however, in the interest of justice the application is allowed as the plea raised is based 3 on pure question of law. The appellant-insurance company is permitted to raise the pure question of law. Mr. Ashwani Sharma learned counsel appearing on behalf of the insurance company has strenuously argued that the claim petition under section 163-A was not maintainable since the claimants have disclosed the income of the deceased @ Rs. 4,150/- per month. In other words, his submission is that the claim petition under section 163-A could be filed by the claimants if the income of the deceased was not more than Rs. 40,000/-. He further contended that once the learned Motor Accident Claims Tribunal had come to a conclusion that the driver was not possessing a valid and effective driving licence then it was open to the appellant-insurance company to urge that there was fundamental breach of policy under section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988. His precise submission is that it is always open to the insurance company to take the limited defence available as stipulated under section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988 in claim petition filed under section 163-A of the Act as well. M/s. Ramakant Sharma and Rajnish Maniktala learned counsel appearing on behalf of the respondents have supported the award dated 9.5.2003. I have heard the learned counsel for the parties and perused the record carefully. The first question involved in this petition is: whether the claim petition preferred by the claimants i.e. respondents 1 to 4 was maintainable under section 163-A of the Motor Vehicles Act, 1988 or not? In para 6 of the claim petition it is averred that the salary of the deceased was Rs. 2250/- per month and he was also getting Rs. 40/- as daily allowance. Respondent No.5 has not chosen to file any reply to the claim 4 petition. The learned Motor Accident Claims Tribunal assessed the income of the deceased @ 36,000/- per annum after taking into consideration the age of the deceased and making necessary deductions of 1/3rd has awarded a sum of Rs. 4,32,000/-. The claimants were also held entitled to a sum of Rs. 10,000/- on account of funeral and other charges and the claimants were held entitled for total compensation of Rs. 4,42,000/-. Mr. Ashwani Sharma has strongly relied upon Deepal Girishbhai Soni and others versus United India Insurance Company Limited, 2004 (II) ACJ 934 to buttress his submissions. He has relied upon paragraph 67, which reads as under: “We, therefore, are of the opinion that Kodala’s case, 2001 ACJ 827 (SC),) 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.” Mr. Ashwani Sharma has also relied upon judgment of this Court rendered in United India Insurance Company Limited versus Kavita Chhabra and others, 2006 (III) ACJ 1484, Dharam Pal versus State of Himachal Pradesh, Latest HLJ 2006 (HP) 784 and Sudhir Mahajan 5 versus United India Insurance Company Limited and others, 2007 (2) Shimla L.C. 305. The learned counsel appearing on behalf of the respondents have strongly relied upon Sharabai and another versus P. Sahebkhan and others, 2006 (I) ACJ 229, United India Insurance Company Limited versus Rukiya, 2007 (I) ACJ 698, New India Assurance Company Limited versus Jaspreet Kaur and others, 2007 (IV) ACJ 2167, Chandra Singh and another versus Gayatri Devi and another, 2007 (IV) ACJ 2355 and Oriental Insurance Company Limited versus Saroj and others 2008 (I) ACJ 594. The moot question involved in this appeal, as noticed above, is: whether the maintainability of the petition under section 163-A of the Motor Vehicles Act, 1988 is to be governed as per the income disclosed in the pleadings or as per the income assessed by the learned Motor Accident Claims Tribunal after appreciating the oral as well as documentary evidence. In the present case though the claimants have stated in the petition that the deceased was getting a sum of Rs. 2250/- per month and he was also getting Rs. 40/- as daily allowance, however, the learned Motor Accident Claims Tribunal has assessed the income of the deceased @ Rs. 3000/- per month, thus, the income of the deceased was less than 40,000/- per month. A Division Bench of Karnataka High Court in Sharabai and another versus P. Sahebkhan and others, 2006 (I) ACJ 229 has held after taking into consideration Deepal Girishbhai Soni and others versus United India Insurance Company Limited (supra) that pleading of a party can never be placed on the pedestal of law. Simply the fact that the claimants asserted a fact which they could not prove that circumstance itself without anything further has no legal efficacy to determine the 6 jurisdiction of the Tribunal and the jurisdiction of the Tribunal is determined by law and not by pleadings of the party, who invokes its jurisdiction. Be that as it may, it is not a finding of the Tribunal that yearly income of the deceased was more than Rs. 40,000/-. Their Lordships of the Karnataka High Court have held as under: “Admittedly, appellants-claimants made an application only under section 163-A of the Act. The argument of the learned counsel for the insurance company is that since in the said application, it was claimed by the claimants that the deceased was earning yearly income of Rs. 1,00,000/- and since that income is more than Rs. 40,000/-, the application filed by them is not maintainable and that the application ought to have been treated as one filed under section 166 of the Act and dealt with accordingly. This submission is not acceptable to us for more than one reason. The pleading of a party can never be placed on the pedestal of a law. Simply because claimants have under a wrong perception or appreciation of the facts asserted a fact which they cannot prove, that circumstance itself without anything further has no legal efficacy to determine the jurisdiction of the M.A.C.T. The jurisdiction of the M.A.C.T. is determined by the law and not by pleading of a party who invokes its jurisdiction. Be that as it may, it is not a finding of M.A.C.T. that the yearly income of the deceased was more than Rs. 40,000/-. On appreciation or oral and documentary evidence, the Tribunal has recorded a finding that the deceased was earning only Rs. 2,400/- per month. That means that deceased was earning Rs. 28,800/- per annum. Therefore, we hold that Tribunal had jurisdiction to entertain the application filed by the appellants- claimants under section 163-A of the Act and that in entertaining that application, the M.A.C.T. has not committed any illegality as contended by the learned Standing Counsel for the insurance company.” 7 Similar view has been taken by the Kerala High Court in United India Insurance Company Limited versus Rukiya, 2007 (I) ACJ 698. Their Lordships have held as under: “First contention is that application under section 163-A will not lie as the deceased was drawing more than Rs. 40,000/- in an year. Apex Court in Koppula Venkat Rao versus State of A.P., 2004 (2) KLT (SC) (SN) 19 and in Deepal Girishbhai Soni versus United India Insurance Company Limited, 2004 ACJ 934 (SC), held that remedies under section 163-A are available only if annual income of the accident victim is below Rs. 40,000/- and others can file claim petition only under section 166. But in this case the Tribunal has found that his monthly income was only Rs. 3,000/-. If that is so, application filed by legal representat5ives cannot be rejected on that ground as yearly income of the deceased was only Rs. 36,000/-.” The learned Single Judge of Punjab and Haryana High Court in New India Assurance Company Limited versus Jaspreet Kaur and others, 2007 (IV) ACJ 2167 has held that the findings of the Tribunal about income of the deceased and not the pleadings of the claimants would decide about the maintainability of the claim petition. The learned Single Judge has held as under: “I have considered the contentions raised by the learned counsel for the appellant and do not agree with the same. In the present case, it has to be noticed that the learned Tribunal, on appreciation of evidence on record has given a clear finding that the annual income of the deceased was Rs. 36,000/-, i.e., less than Rs. 40,000/- The Hon’ble Karnataka High Court in the case of Sharabai versus P Sahebkhan, 2006 ACJ 229 (Karnataka) has been pleased to hold that it is not the pleadings, but the findings of the Tribunal which is to be 8 taken to decide whether the Tribunal had jurisdiction or not. Relevant portion of the judgment reads as under: “(6) Admittedly, appellants-claimants made an application only under section 163-A of the Act. The argument of the learned counsel for the insurance company is that since in the said application, it was claimed by the claimants that the deceased was earning yearly income of Rs. 1,00,000/- and since that income is more than Rs. 40,000/-, the application filed by them is not maintainable and that the application ought to have been treated as one filed under section 166 of the Act and dealt with accordingly. This submission is not acceptable to us for more than one reason. The pleading of a party can never be placed on the pedestal of a law. Simply because claimants have under a wrong perception or appreciation of the facts asserted a fact which they cannot prove, that circumstance itself without anything further has no legal efficacy to determine the jurisdiction of the M.A.C.T. The jurisdiction of the M.A.C.T. is determined by the law and not by pleading of a party who invokes its jurisdiction. Be that as it may, it is not a finding of M.A.C.T. that the yearly income of the deceased was more than Rs. 40,000/-. On appreciation or oral and documentary evidence, the Tribunal has recorded a finding that the deceased was earning only Rs. 2,400/- per month. That means that deceased was earning Rs. 28,800/- per annum. Therefore, we hold that Tribunal had jurisdiction to entertain the application filed by the appellants- claimants under section 163-A of the Act and that in entertaining that application, the M.A.C.T. has not committed any illegality as contended by the learned Standing Counsel for the insurance company.” In the present case also the petition under section 163-A of the Motor Vehicles Act, 1963 was filed and the income of the deceased was mentioned as Rs. 3500/- per month. However, the Tribunal after 9 appreciating the evidence determined the income of the deceased @ Rs. 3,000/- per month. A Division Bench of the Punjab and Haryana High Court in Oriental Insurance Company Limited versus Saroj and others 2008 (I) ACJ 594 has reiterated that making claim on the basis of higher income does not disqualify the claimants to lay a claim under section 163-A of the Act. Their Lordships have held as under: “The judgment does not lay down a law that merely by setting up a claim on the basis of higher income, the claimants would be disqualified to lay a claim under section 163-A of the Act. Moreover, it appears from the ratio of that judgment that the provisions of section 163- A of the Act being beneficial piece of legislation in nature would not act as a bar in a case where the Tribunal comes to the finding that the income is below Rs. 40,000/- per year. As regards the second limb of the submission of learned counsel questioning the maintainability of claim petition under section 149 of the Act, the contention appears to be absolutely irrelevant as this section relates to requirements of policies and extent of liabilities. Moreover, the insurance of the offending vehicle is not in question. Further the breach of condition of policy is not in question either.” It is thus evident that what has to be seen while determining the application under section 163-A of the Act is the income finally assessed by the learned Motor Vehicle Accident Claims Tribunal and not the income disclosed in the claim petition. Their Lordships of the Hon’ble Supreme Court in Deepal Girishbhai Soni and others versus United India Insurance Company Limited, 2004 (II) ACJ 934 have held that the benefit under section 163-A of the Act being a social security provision can be taken by only those 10 whose annual income is up to Rs. 40,000/-. All the other claims are required to be determined on the basis of chapter-XII of the Act. In the present case the learned Tribunal has assessed the income of the deceased @ Rs. 36000/- per annum. If the learned Tribunal had assessed the income of the deceased more than Rs.40,000/- per annum, the petition was not maintainable before it. The judgments of this Court in United India Insurance Company Limited versus Kavita Chhabra and others, 2006 (III) ACJ 1484, Dharam Pal versus State of Himachal Pradesh, Latest HLJ 2006 (HP) 784 and Sudhir Mahajan versus United India Insurance Company Limited and others, 2007 (2) Shimla L.C. 305 are distinguishable on the facts. In these judgments the actual income of the deceased was not determined after assessing the evidence led by the parties by the Motor Accident Claims Tribunal. In the present case the income of the deceased has been assessed @ Rs. 3000 per month though in the claim petition it was averred to be Rs. 3500/- per month. Now, the Court has to consider the second submission of Mr. Ashwani Sharma. There is a considerable force in the submission made by Mr. Sharma that it is always open to the insurance company to raise defences in claim petition filed under section 163-A of the Act in terms of section 149 (2) (a) (ii) of the Act. The question of law raised by Mr. Ashwani Sharma is no longer res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in National Insurance Company Limited versus Swaran Singh and others ACJ 2004 (I) 1. Their Lordships have held as under: “Insurer is entitled to raise a defence in a claim petition filed under section 163-A or section 166 of the Motor 11 Vehicles Act, 1988, inter alia, in terms of section 149 (2) (a) (ii) of the said Act.” A specific finding has been recorded by the learned Motor Accident Claims Tribunal that the deceased was possessing the driving licence to drive the light motor vehicles only and there was no endorsement on his driving licence for driving transport vehicle; therefore, he did not possess the valid and effective driving licence at the time of his death. Since the driver was not holding a valid driving licence, it was open to the insurance company to raise pleas available under section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988. Accordingly the insurance company could not be held liable to indemnify the owner. The upshot of the above discussion is that: i) petition under section 163-A of the Motor Vehicles Act, 1988 was maintainable on the basis of the income assessed by the learned Motor Accident Claims Tribunal; ii) the learned Motor Accident Claims has erred in law by coming to a wrong conclusion that though the driver was not holding any valid driving licence , the insurance company was precluded from raising the defences available to it under section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988. It is reiterated that in the claim petition under section 163 of the Act also it is always open to the company to raise the defence available to it under section 149 (2) (a) (ii) of the Act. Consequently, the appeal is allowed. The appellant-insurance company is absolved from indemnifying the owner. The impugned award is modified to that extent. There shall be no order as to costs. 22.9.2008 (Rajiv Sharma ), J. *awasthi* 12