IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 1161 of 2004() ----------------------- OP(MV).342/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANTS/PETITIONERS 1 TO 3: ------------------ 1. MINI PHILIP, WIFE OF P.T.PHILIP, PUNNAKKAPILLIL HOUSE, KAVITHA APARTMENTS, MUTTAMBALAM P.O., KOTTAYAM. 2. BABLOO TOM PHILIP, MINOR OF -DO- -DO-. 3. BABITHA ELIZABETH PHILIP (MINOR) OF -DO- MINORS REPRESENTED BY GUARDIAN MOTHER 1ST APPELLANT. BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENT(S): RESPONDENTS: ------------------- * 1. P.J.MATHEW, PARAPURATHU HOUSE, ATHIRAMPUZHA, KOTTAYAM. * 2. K.C.THOMAS, SON OF CHACKO, PARAYAMPARAMBIL, NENDOOR, ONAMTHURUTHU,KOTTAYAM. (RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AS PER THE ORDER DATED 1.10.2009 IN I.A.NO.2740 OF 2009) 3. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KOTTAYAM. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A.No.1161 of 2004 ------------------------------- Dated this the 16th December, 2009 J U D G M E N T Raman, J. Appellants are the claimants in O.P.(M.V.) No.342 of 1999, on the file of the Motor Accidents Claims Tribunal, Kottayam. For convenience, we refer to the status of the parties as in the Tribunal. The first petitioner is the wife of the deceased P.T.Philip, petitioners 2 and 3 are his children and fourth petitioner is the mother of the deceased. The brief facts as borne out by the records are as follows. 2. The deceased was travelling in a car bearing Registration No.KL-9B/858 through the M.C.Road, when a bus bearing Registration KL 5A 7876, driven by the second respondent came in a rash and negligent manner and hit against the car, as a result, he sustained serious injuries. He was treated in the Medical College Hospital, Kottayam, but subsequently MACA.No.1161 of 2004 2 succumbed to the injuries. First respondent was the owner of the bus, second respondent was the driver of the vehicle and third respondent is the Insurer of the vehicle. The claim was made for a total compensation of Rupees One Crore under different heads. The claim petition however was filed under Section 163A of the Motor Vehicles Act and not under Section 166 of the Motor Vehicles Act. The application filed also disclosed that the income of the deceased is more than Rupees One Lakh per month, thus, above the limit of Rs.40,000/- prescribed under the II Schedule of the Motor Vehicles Act. 3. Respondents 1 and 2 remained ex parte. The Insurance Company contested the case. The issues were framed by the Tribunal including on the question of negligence and found that the accident occurred as a result of the negligent driving of the bus driver, the second respondent. Thereupon, it proceeded to decide the quantum of compensation to be awarded. Being a claim under Section 163 A of the M.V.Act, the compensation was worked out putting a captive income at Rs.40,000/- per annum. MACA.No.1161 of 2004 3 The Tribunal relied on Full Bench decision of the Karnataka High Court in Patricia Jean Mahajan and others v. United India Insurance Co. Ltd. and others (2002 ACJ 1) to hold that by filing a petition under Section 163 A, the petitioners have limited their claim to the compensation awarded under Section 163A and the legislature having provided a quicker remedy to obviate the need for a long round litigation, being a beneficial provision, it must be applied to all cases of citizens. But in the case of higher income group, the income will be notionally brought down to Rs.40,000/- so as to work out the compensation under Section 163A of the M.V.Act. Thereafter, the Tribunal worked out the compensation and total amount of Rs.5,73,000/- was awarded as compensation, with interest at the rate of 9% per annum, besides awarding a cost of Rs.10,000/- to be paid by the third respondent. The manner of deposit to be made in the case of minors was also specified in the award under consideration. Subsequently, the third respondent, Insurance Company, sought a review of the award by filing I.A.No. 1753 of 2004. The only contention raised in the review petition was that while taking the MACA.No.1161 of 2004 4 income as of Rs.40,000/-, one-third was not deducted for calculating the loss of dependency, which contention was accepted by the Tribunal and the total compensation awarded was reduced as a result of the re-calculation, after deducting one-third of the income. Thus, the compensation amount was re- worked as Rs.3,91,333/- with a proportionate deducting in cost also, limiting it to Rs.7000/-. Challenging the award thus passed by the Tribunal, this appeal has been preferred by petitioners 1 to 3. 4. However, we notice that 4th respondent, mother, is not even impleaded as a respondent in this case. 5. This appeal was preferred as early as in 2004, but the appellants filed a petition as I.A.No.3736/2009 (just at the eve of the hearing of the matter), producing certain additional documents. I.A.No.3735 of 2009 was also filed in a similar manner which is a petition seeking amendment of the appeal memorandum by incorporating additional grounds. In the view we are taking, it is unnecessary to consider these MACA.No.1161 of 2004 5 applications on merits, apart from the fact that these applications have been filed in the event of the appeal being posted for hearing. Therefore, for the statistical purpose, we dismiss those application. 6. Though we have dismissed the application for amendment, it may be mentioned that the very application was for incorporating an additional ground, viz., that though the petition for compensation was filed under Section 163A of the M.V.Act, the court below has treated the same as though under Section 166, by permitting evidence to be let in by both the sides to contest the matter on merits and also entered a finding regarding the negligence, and therefore, the Tribunal ought not have limited the income of the deceased at Rs.40,000/-. 7. Admittedly, the position as to whether a claim petition could be filed under Section 163 A of M.V.Act, even where the injured or the deceased had an income of more than Rs.40,000/- was not settled. As pointed out by the Tribunal, High Courts have taken the view that when an application is filed MACA.No.1161 of 2004 6 under Section 163A of the Motor Vehicles Act, if the conditions prescribed thereunder, viz., it is a case of death or permanent disability, the application may lie irrespective of the income, but having opted to file an application under Section 163A of the M.V.Act, the income will be limited to Rs.40,000/- and compensation will be worked out accordingly. But in the subsequent decision of the Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004 (2) KLT 395 (SC), it was held that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other, as statutorily provided, the claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt or elect to go either for a proceeding under Section 163A or under Section 166, and not under both. The Apex Court also agreed with the decision in Oriental Insurance Co. Ltd. v. Hansrajbhai v. Kodala & Ors (2001 (2) KLT 235) on the issue that the claimant's right to get compensation is not in addition to the no-fault liability, and further that unlike Sections 140 and 141 of the Act, the Parliament did not want to provide additional MACA.No.1161 of 2004 7 compensation in terms of Section 163 A of the Act. The view taken in Kodala's case was that if a person invokes the provision under Section 163A, the annual income of Rs.40,000/- shall be treated as a cap. In the later decision, it was held that proceedings under Section 163A, being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof, and all other claims are required to be determined in terms of Chapter XII of the Act. 8. Thus, in the case of the person whose annual income exceeds Rs.40,000/-, the claim can be adjudicated only under Section 166 of the Motor Vehicles Act. There is no option to limit his income upto Rs.40,000/- and then awarding compensation accordingly under Section 163A of the Act. But this decision was rendered subsequently to the award passed in the case. In view of the latter pronouncement of the Apex Court, as above, since the very claim in the application showing an income of Rupees One Lakh per month, exceeds the limit of MACA.No.1161 of 2004 8 Rs.40,000/- per annum, is liable to be rejected as not maintainable under Section 163A. If this was done by the Tribunal, normally, in the absence of any finding made, a fresh application may not be barred under Section 166 of the M.V.Act. But the claimants will have to necessarily prove negligence as also to let in evidence for claiming compensation under different heads. 9. But taking note of the factual situation in this case, viz., that the decision of the Apex Court came subsequent to the award and since some of the High Courts have already taken a view that application under Section 163A can still be considered, even if the income exceeds Rs.40,000/-, limiting the same to Rs.40,000/- and to work out the compensation accordingly, the proper course open to the us is to set aside the award, vacate the findings and send back the case to the Tribunal, to treat the application as one filed under Section 166 of the M.V.Act and to proceed to decide the case afresh. MACA.No.1161 of 2004 9 10. Accordingly, we set aside the award and remit the case to the Tribunal on the following conditions:- i) Whatever amount lies in deposit less whatever that has been withdrawn will continue to be in deposit until the final adjudication. ii) The amount already withdrawn shall either be re-deposited or a Bank Guarantee be furnished, (inclusive the amount, if any, withdrawn by the fourth petitioner) and such Bank Guarantee will be furnished to the appellants herein. iii) Since the entire amount has already been deposited, the liability to pay interest on the part of the Insurance Company for additional amount, if any to be awarded, will be limited for the period from the date of this order. MACA.No.1161 of 2004 10 iv) Both parties will be at liberty to amend their pleadings and to adduce fresh evidence in support of their contentions. 11. Both the parties shall appear before the Tribunal on 1-2-2010. The Tribunal shall dispose of the matter expeditiously. Since the 4th petitioner is not impleaded as a party herein, the Tribunal shall issue notice to the 4th petitioner, at the expense of the appellants herein. Appeal is thus allowed by way of remand. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.