IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 MACA.No. 946 of 2005() ---------------------- OPMV.1390/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/3RD RESPONDENT: ----------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): CLAIMANT 1 TO 3 AND 1ST RESPONDENT: ------------------------------------------------------------------ 1. SUGANTHI, W/O. LATE MOHANAN, PUTHUVAL PUTHEN VEEDU, KARIKKAKAM, BEACH P.O., THIRUVANANTHAPURAM-7. 2. MISS. SAJANI (MINOR),D/O.LATE MOHANAN, RESIDING AT -DO- -DO-, REP. BY MOTHER, SUGANTHI. 3. MASTER SANOJ (MINOR),S/O.LATE MOHANAN, RESIDING AT -DO- -DO-, REP. BY MOTHER, SUGANTHI. 4. A.JAFFER KHAN, S/O. ABOOBACKER, T.C.11/1271, MUBARAK MANZIL, NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM-3. ADV. SRI.NAGARAJ NARAYANAN FOR R1 TO 3 SRI.SAIJO HASSAN FOR R1 TO R3 SRI.A.S.SABU FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.A.C.A.946/05 ORDER ON I.A.1800 OF 2005 IN M.A.C.A.946 OF 2005 DISMISSED. SD/- C.N.RAMACHANDRAN NAIR, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 8.12.2009 okb /True copy/ P.A. to Judge C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No. 946 of 2005 ---------------------------------- Dated this the 8th day of December, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. 1. The 2nd respondent before the Tribunal, who is the insurer of the vehicle involved in the accident, is the appellant herein. The claim arises out of death of one Sri:Mohanan, the husband of 1st claimant and father of minor claimants 2 and 3. He sustained fatal injuries when a scooter driven by him skidded, throwing down him to the public road. The claim is filed under Section 163A of the Motor Vehicles Act. The deceased was employed in the Indian Airlines as Helper- Catering Head. He was aged 48 years at the time of accident. The 1st claimant, wife of the deceased was aged 38 years. As per Ext.A10 salary certificate it is proved that the deceased was drawing a monthly salary of Rs.10,314/-. Even the basic salary of the deceased is Rs.3,820/- per month. 2. The Tribunal awarded compensation calculating loss of dependency under the structured formula in the second schedule of the Act as provided in Section 163A by limiting annual income of the deceased as Rs.40,000/-, in order to come MACA.946/05 2 within the purview of Section 163A. 3. Contention of the appellant insurance company is that the Tribunal had committed serious error in granting compensation under Section 163A by putting a limit to the annual income at the rate of Rs.40,000/-, when the claim of the appellants as well as the proof adduced relating to income will clearly show that the deceased was getting more than Rs.40,000/- per year. In this regard learned counsel for the appellant had pointed out a larger Bench decision of the Hon'ble Supreme Court in Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004 (2) KLT 395 (SC). Referring to the various provisions in the Act the Hon'ble Supreme Court disagreed with the findings of a two Judges Bench decision in Oriental Insurance Company Ltd. Vs. Hansraj Bai V. Kodala and Ors. (2001 (2) KLT 235 (SC)) and held that “if a person invokes provisions of Section 163A, the annual income of Rs.40,000/- shall be treated as a cap. The proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income upto 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 Hon'ble Supreme Court in that case found that in terms of the provision under Section 163A, a distinct and specified class MACA.946/05 3 of citizens, namely, persons whose income per annum is Rs.40,000/- or less alone is covered thereunder. 4. Going by dictum laid by the Hon'ble Supreme Court in the above referred case, we are bound to accept the contention raised by the appellant. In the case at hand it is explicitly clear that the income of the deceased claimed before the Tribunal in the petition filed under Section 163A, as well as the income which is proved in evidence, exceeds the limit of Rs.40,000/- per annum. Therefore the claim is beyond the scope of Section 163A. Hence the impugned award is legally unsustainable. 5. Since the accident occurred not due to negligence of any other person or not due to involvement of any other vehicle, the claim under Section 166 is not maintainable. It is held in the above quoted decision of the Hon'ble Supreme Court and in various other decisions that there is no option to the claimants to pursue remedy both under Section 163A and under Section 166, since the claims under both the sections are distinct and exclusive of each other. 6. But yet another question arises as to whether a no fault claim under Section 140 of the Act is sustainable or not, in the case at hand. Under Section 163B of the Act an option is provided to the claimants to seek compensation either under MACA.946/05 4 Section 140 or under Section 163A and prohibit filing of claim under both the sections simultaneously. Section 141(1) provides that the right to claim compensation under Section 140 in respect of death or permanent disability of any person shall be in addition to any other right to claim compensation in respect thereof, under any other provisions of this Act or any other law for the time being in force, except the right to claim under the scheme referred to in Section 163A. It again indicates that the claimants under both the Sections of 163A and under Section 140 are of similar nature based on the principles of no fault and no amount of compensation can be awarded under both the sections with respect to one and the same accident. But the question arises as to whether the claim under Section 140 can be denied to a claimant who is found not eligible for a claim under the provisions of Section 163A, if a claim under Section 140 is maintainable otherwise. We are of the considered opinion that dehors the findings of ineligibility for awarding compensation under Section 163A the right of the claimants to seek compensation under Section 140 of the Act will not be lost. 7. In view of the above discussions, we are inclined to set aside the impugned award granting compensation under Section 163A of the Motor Vehicles Act. But at the same time we MACA.946/05 5 hold that the respondents/claimants are entitled to get an amount of Rs.50,000/- being no fault liability under the provisions of Section 140 of the Motor Vehicles Act, along with interest @ 7.5% per annum from the date of claim petition till payment. 8. We notice that by virtue of an interim order dt:22.6.2005 this Court had permitted the claimants to withdraw the amount of Rs.25,000/- already deposited by the appellant insurance company. Under such circumstances the appellant insurance company is directed to make payment of the balance amount within a period of two months from the date of receipt of this Judgment. On deposit of the amount the Tribunal shall permit the respondents to withdraw the amount. The appeal is disposed of as above. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb