1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 228 OF 2005 WITH FIRST APPEAL NO. 229 OF 2005 FIRST APPEAL NO. 228 OF 2005 National Insurance Co. Ltd., Diamond Chambers, 2nd Floor, 18th June Road, Panaji, Goa. … Appellant V e r s u s 1. Bruno Baltazar Saldanha, S/o Santana B.F.A.A. Saldanha, aged 62 years, R/o Near Casa Rubena, Porvorim. (deceased) survived by respondent nos. 2 & 3. 2. Tania Maria De Carmo Noronha e Saldanha, major, 30 years, R/o Alto-Porvorim-Goa. 3. Egbert Felix Saldanha, Major of age, 35 years, S/o Bruno Saldanha, R/o Near Casa Rubena, Porvorim-Goa. All represented by their Power of Attorney Holder Mario Alexio Vaz, R/o Alto-Porvorim. 4. Ritesh Satardekar, R/o Chicalim Colvale, Deleted as per order Bardez-Goa. dated 11-08-2008 (Driver of GA-01-V-5299) 5. Kalidas A. Budge 2 R/o H. No. 182, Dhuler, Mapusa-Goa. (Owner of bus bearing No. GA-01-V-5299) … Respondents. WITH FIRST APPEAL NO. 229 OF 2005 National Insurance Co. Ltd., Diamond Chambers, 2nd Floor, 18th June Road, Panaji, Goa. … Appellant V e r s u s 1. Bruno Baltazar Saldanha, S/o Santana B.F.A.A. Saldanha, aged 62 years, R/o Near Casa Rubena, Porvorim (expired) represented through his legal heirs 1a. Smt. Tania Maria De Carmo Noronha e Saldanha, major of age, 31 years, R/o Alto-Porvorim-Goa. 1b. Egbert Felix Saldanha, S/o Bruno Saldanha, R/o Near Casa Rubena, Porvorim-Goa. 2. Ritesh Satardekar, R/o Chicalim Colvale, Appeal stands dismissed Bardez-Goa. in view of order dated (Driver of GA-01-V-5299) 28-02-2008 3. Kalidas A. Budge R/o H. No. 182, Dhuler, Mapusa-Goa. (Owner of bus bearing No. GA-01-V-5299) … Respondents. Mr. E. Afonso, Advocate for the Appellant. Mr. Ressano Noronha, Advocate for the Respondents. 3 CORAM : F.M. REIS, J. DATE : 25th FEBRUARY, 2011 JUDGMENT : Both the above appeals were taken up for final hearing and were disposed of together as the claim petitions are in respect of the same accident. 2. Facts in First Appeal No.228 of 2005 The above claim petition has been filed under Section 163A of the Motor Vehicles Act, hereinafter referred to as “the said Act”. Initially, the application was filed under Section 166 of the said Act claiming compensation of Rs.4 lacs from the owner and the insurer, who is the respondent no.5 and the appellant herein on the ground that the vehicle driven by the original respondent no.1 was driven in a rash and negligent manner which resulted in the death of Maria Elsa, who was aged 58 years and was the wife of the respondent no.1 herein and was working and earning Rs.4,000/- per month. It is further their case that she was traveling in a Fiat car towards Panaji from Mapusa which gave a dash by the bus owned by respondent no.5 and driven by the original respondent no.1 Ritesh R. Satardekar and died instantaneously on the spot. The said bus was insured with the appellant on the date of the accident and, as 4 such, the claimants sought compensation from the appellant as well as the owner and the driver of the said bus. 3. The respondent no.5 and the driver opposed the said Claim Petition in its totality and contended that the said Fiat vehicle which was proceeding from Mapusa towards Panaji left its half of the road and dashed against the bus which was proceeding from Panaji towards Mapusa. The appellant also filed written statement disputing the claim of the claimants/respondents nos.1 to 3. The said petition was subsequently amended and the same was prayed to be considered as one under Section 163-A of the said Act by restricting the claim to Rs.2,17,400/-. 4. After framing the issues and recording all the evidence, the Tribunal partly allowed the claim petition and awarded compensation to the tune of Rs.1,95,167/-, which was inclusive of the amount earlier awarded in favour of the respondents nos.1 to 3 under Section 140 of the said Act. Being aggrieved by the said judgment and award, the appellant/Insurance Company has filed the present appeal. 5 5. Facts in First Appeal No.229 of 2005 The claim petition has been filed by the respondents nos.1(a) and 1(b), on the ground that on account of the same accident, Christina expired at the age of 31 years, who is the daughter of the original claimant no.1/respondent no.1, herein while proceeding in a Fiat car bearing No.GDL 3767 driven by her from Mapsua towards Panaji on 13/01/2000. It is further their case that on reaching Guirim on National Highway-17 at about 10.30 hours, the bus driven by the original respondent no.1 and owned by respondent no.3, herein dashed against the said fiat vehicle which resulted in an impact, on account of which she sustained injuries and died on the spot. Accordingly, compensation was claimed to the tune of Rs.7 lacs on the ground that the deceased Christina was a scientist earning a salary of Rs.5,000/- per month and employed in National Institute of Oceanography. 6. After the original claimant/respondent no.1 expired, his daughter-in-law and son, who are the respondents nos.1(a) and 1(b), respectively, were brought on record. The respondent no.3 herein and the driver opposed the petition by denying the allegations in the claim petition. The appellant also denied the contentions in the claim petition and restricted their liability to the 6 terms and conditions of the policy. Subsequently, the claim petition came to be amended to be one under Section 163-A of the said Act restricting compensation to Rs.4,31,167/-. 7. After framing the issues and recording of the evidence, the Tribunal awarded compensation to the claimants to the tune of Rs.4,31,167/-, which was inclusive of the amount awarded in their favour under Section 140 of the said Act. Being aggrieved by the said judgment and award dated 7/05/2005, the appellant has preferred the present appeal. 8. Shri E. Afonso, the learned Counsel appearing for the appellant has raised common submissions. Submissions and their considerations: Shri E. Afonso, the learned Counsel appearing for the appellant has assailed both the impugned judgments and pointed out that in view of the fact that the income of the deceased in both the above appeals was stated to be more than Rs.40,000/- per annum, the Claim Petition under Section 163-A of the said Act is not maintainable. He further submitted that an award was already passed under Section 140 of the said Act and an amount as awarded was received by the claimants/respondents nos.1 to 3 and, 7 as such, the question of converting the Claim Petition under Section 163-A of the said Act would not arise. He further pointed out that once the claimants have exercised their option to proceed under Section 166 of the said Act, the question of reverting itself to claim compensation under Section 163-A would not arise. The learned Counsel has relied upon the judgment reported in 2003 ACJ 350 in the case of United India Insurance Co. Ltd. V/s. Janabai & Ors. and the judgment reported in AIR 2008 Himachal Pradesh 84 in the case of Smt. Kamla Devi V/s. Ram Kishan & Ors. 9. On the other hand, Shri R. Noronha, the learned Counsel appearing for the respondents nos.1 to 3 has supported the impugned judgment. The learned Counsel submitted that the question of contending that the claim petition is not maintainable is not available to the appellant. The learned Counsel further submitted that merely because the income of the deceased is stated to be more than Rs.40,000/- per annum it does not by itself disentitle the claimants of filing the Claim Petition. He has relied upon the judgment reported in 2001 ACJ 1528 in the case of Guruanna Vadi & Anr. V/s. General Manager Karanataka State Road Trans. Corpn. & Anr. He further pointed out that in case the 8 above appeals are allowed on the ground that the income of the deceased was more than Rs.40,000/- per annum, this Court should permit the respondents nos.1 to 3 to convert the Claim Petition as under the provisions of Section 166 of the said Act and direct the Tribunal to expeditiously dispose of the Claim Petition. 10. On perusal of both the Claim Petitions in both the above appeals, there is no dispute that it is the contention of the claimants/respondents nos.1 to 3 that the income of the deceased was more than R.40,000/- per annum and, obviously, considering the said income of both the deceased, the respondents nos. 1 to 3 were not entitled to maintain a petition under Section 163-A of the said Act. This Court in the judgment reported in 2009(1) Bom.C.R. 304 in the case of New India Assurance Company Ltd. V/s. Latabai Madhav Sarote & Ors. has held at paras 3,4 & 5 thus: “3. According to the assertion made in the claim petition filed by the first and fourth respondents, the age of the deceased at the time of accident was 36 years and he was drawing a salary of Rs. 7211/- 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 upto 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 9 only to those, whose income is upto Rs. 40,001- per year. The claim petition of the others will have to be decided in accordance with section 166 of the Motor Vehicle Act, 1988. In the order dated 19.6.2008 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. 4. The learned Counsel appearing for the first and second respondents submitted that in the event the Court is of the view that the claim petition under section 163-A is not maintainable, the same may be allowed to be converted into the claim petition under section 166 of the said Act. Relying upon the decision of this Court in the case of (New India Assurance Co. Limited Vs. Rukhminibai w/o. Ashok Gore)1, First Appeal No. 1349 of 2004, the learned Counsel submitted that the Division Bench of this Court has held that the conversion of a claim petition cannot be allowed. In First Appeal No. 979 of 2007, this Court after considering the aforesaid decision of the Division Bench has held that the Tribunal as well as this Court always has a discretion to allow the conversion of a claim petition under section 163-A into a claim petition under section 166 of the said Act. 5. Considering the facts of the present case, the said discretion will have to be exercised in favour of the first and second respondents.” 11. Considering the said judgment of this Court there can be no dispute that the claim petition under Section 163-A of the said Act was not maintainable and, as such, the impugned judgment and award are not sustainable in law. 12. With regard to the other contention raised by the learned 10 Counsel appearing for the appellant, there is no dispute that an award under Section 140 of the said Act was passed in both the above Claim Petitions and amounts were duly recovered by the respondents nos. 1 to 3. The learned Single Judge of this Court in the case of New India Assurance Company Ltd. (supra) has held that once the amount under Section 140 of the said Act was already received, the petition under Section 163-A of the said Act is not maintainable. As such, the learned Tribunal was not justified to proceed to decide the claim petition under Section 163-A of the said Act. 13. There is no dispute that originally the Claim Petitions were filed under Section 166 of the said Act which were thereafter allowed to be treated as being under Section 163-A of the said Act. The accident is stated to have taken place somewhere in the year 2000. As considerable time has lapsed from the date of the accident, which resulted in the death of the mother as well as the daughter of the original respondent no.1, I find that in the interest of justice, the impugned judgment and award deserves to be quashed and set aside and the Tribunal be directed to dispose of both the Claim Petitions, as expeditiously as possible. The Claim Petitions would have to be decided in terms of the provisions of 11 Section 166 of the said Act. 14. In view of the above, I pass the following order: O R D E R i) Both the appeals are partly allowed. ii) The impugned judgment dated 7/05/2005 passed in Claim Petition no.26 of 2002 and the judgment dated 7/05/2005 passed in Claim Petition no.27/2002 are quashed and set aside. iii) Claim Petitions Nos.26/2002 and 27/2002 are restored to the file of the Motor Accident Claims Tribunal. iv) The parties are directed to appear before the Tribunal on 15/03/2011 at 10.00 a.m. v) On an application being filed by the claimants/respondents nos.1 to 3, the learned Tribunal shall allow the claimants to carry out the amendment to the Claim Petitions for the purpose of converting the same into a petition under Section 166 of the said Act. vi) The Tribunal shall permit the parties to lead further evidence on record and after considering the evidence which is already adduced and the evidence which will be adduced after remand the Claim Petitions shall decide both the Claim Petitions afresh in the light of the observations made herein above in accordance with law. vii) The Claim Petitions shall be disposed of as 12 expeditiously as possible and in any event preferably on or before 31/07/2011. viii) All the contentions of the parties on merits are especially kept open. ix) Both the appeals stand disposed of accordingly with no order as to costs. x) The appellants shall be entitled to get the amount deposited in this Court refunded to the appellants, in accordance with law. F.M. REIS, J. NH/-