^ Division BencA IN THE HIGH COURT OF JUDICATURE AT BILASPUR^IIHATBSGARH MISELLANEOUS APPEAL (C) N0. - ? 3 3<-) OF 2007 (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) APPEl.LANTS CLAIMANTS 1. Smt. Bimla Thakur, S/o Late Bansingh Thakur, aged about 43 years, Caste" Gond z"' p^.2487]°7 -^^^^»,.»*—' ^r"' ^lrA*:^ 6. Minor Chitralekha Thakur, D/o Late Bansingh, Thakur^ aged about 15 years^ Caste-Gond Minor Hempushpa Thakur, D/o Late Bansingh, Thakur, aged about 13 years, Caste-Gond Minor Khileshwar Thakur^ S/o Late Bansingh, Thakur, aged about 1 1 years, Caste-Gond Minor Chhabila Thakur, D/o Late Bansingh, Thakur, aged about 08 years, Caste-Gond, IVtinor Nutan Thakur, S/o Late Bansingh, Thakur, aged about 06 years, CasterGond [Appellant No. 2 to 6 beingminor on behalfof through their legal guardian mother appellant No. 1 Smt. Bimta Thakur] All R/o- Village-Girhola, Police Station- Mainpur,District- Raipur(C.G.) VERSUS RESPONDENTS .NON-CLAIMANTS 1. Jagtu Ram Markam S/o Ram Prasad, ^ Markam, aged about 40 years, R/o - Village- Begarpala (Sikasher), Police Station - Mainpur, District - Raipur (C.G.) ^ 2 The Iffco-Tokio General Insurance Company Limitcd through Branch Manager, Branch Office address - 3' floor, Shop No. 345-347, Lal Ganga Shopping Maha, G.E. Road, Raipur, District-Raipur (C.G.) fc MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 /^ ! HIGH COURT QF CHHATTISGARlL:B!LASjnjR M.A. (Q No. 1330 of 2007 Appellants Smt. Bimla Thakur & others Versus Respondents Jagtu Ram Markam & another MISC,APPEAL_UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi 8& Hon'ble Shri G. Minhajuddin, JJ Shri Shivendu Pandya, Advocate for the appellants. Shri Sunil Sahu, Advocate for the respondent No. 1. Shri Yashwant Singh Thakur, Advocate for the respondent No. 2. ORDER (Oral) ( Passed on this 12th day of September, 2011 ) Per I. M. Qiiddusi J. The instant appeal, filed by the appellants/claimants arises from the award dated 20.4.2007, passed by the Additional Motor Accident Claims Tribunal, Gariaband, District ~ Raipur in Claim Case No. 60/2006, dismissing the claim petition. The facts, in brief, as projected by the claimants are that pn 7.2.2006 deceased Ban Singh was returning to Mainpur by the motorcycle, bearing registration No. C.G. 04-CK/0967, which was owned by the non-applicant No.l. The motorcycle was being driven by the decease and one Baliyar Singh was accompanying him as a pillion rider. On the way at about 7.00 p.m., 3 k.m. ahead Gariaband, an accident took place wherein both the riders of the motorcycle received grievous injuries and on the next day i.e. 8.2.2005 Ban Singh succumbed to the injuries duriAg, the course of medical trcatment. It was stated by Baliyar Singh, the pillion rider, in his F.I.R. t:o the police that sorne ^,,^^,;\;\ ^•^•^ '"%•.,, ^'. ^' "A'^- ^•s^'i^^M-1^. ^s '^sy^iti j '\..%9^/ -^ .../?^' unknown vehicle dashed the motorcycle, thereby the accident was occurred. The claimants (wife and five children), being legal heirs of the deceased, filed a claim case under Section 163-A of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 11,00,OOO/- on the submission that the yearly income of the deceased was Rs. 72,000/-, wherein the claim petition was dismissed by the Tribunal, holding that the accident was occurred due to own mistake of the deceased, who was driving the motorcycle, which was borrowed by him from the non-applicant No.l. We have heard learned counsel appearing for the parties, perused the record and the findings of the Tribunal. We are of the opinion that since the claim petition w^-s filed under Section 163-A of the Act, 1988 and the deceased, who was a Kirana Merchant, his income was described as Rs. 72,000/- per annum, which is exceeding the maximum limit mentioned in Schedule -II i.e. Rs. 40,000/-, the claim petition itselfwas not maintainable. Hon'ble Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. Baroda1 in paragraphs 46 and 67 has held as under : "46. Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structure- formula basis. Sub-section (1) of Section 163-A contains non obstante clause in terms whereof the owner of the motor vehicle or the authorized insurer is liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case (2004) 5 SCC 385 'l .././ may be. Sub-section (2) of Section 163-A is in pari material with sub-section (3) ofSection 140 ofthe Act." a67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala 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 proceedings 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.?? 7. In view of the above, we hold that the claim petition itself was not maintainable before the Claims Tribunal under Section 163-A of the Motor Vehicles Act, 1988. The appeal is dismissed accordingly. No order as to costs. 8. However, this order will not debar the claimants to file a fresh claim petition under the provisions of law other than Section 163-A of tlie Motor Vehicles Act, 1988, claiming compensation. Since the claim petition itself was not maintainable before the Claims Tribunal under Section 163-A of the Act, 1988, as such the claimants cannot be kept remediless. Sd/- I.M.Quddusi Judge Sd/- ' ] G. Minhajuddin j Judge | D Thakur