IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.173 of 2005 Decided on: 21.12.2009 Sh.Jai Chand and another …..Appellants. VERSUS HRTC and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?No For the Appellants: Mr.B.M.Chauhan, Advocate. For the Respondents: Mr.H.S.Rawat, counsel for HRTC. Mr.Romesh Verma, Advocate, vice Mr.Ajay Mohan Goel, Advocate, for respondent No.2. Mr.Baldev Singh Negi, counsel for respondents No.3 and 4. Ms.Monika Shukla, Advocate vice Mr.Ashwani Sharma, Advocate for the respondent No.5. Deepak Gupta,Judge (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the …2… award dated 15.1.2005 passed by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr (hereinafter referred to as the ‘Tribunal’) in MAC petition No.76 of 2002. Briefly stated the facts of the case are that on 29.5.2002 an accident between three vehicles took place in which Jai Parkash, son of the claimants was driving Bullet Motorcycle No.HPS-9817. Truck No.HP-25-0585 was ahead of him and bus No.HP-06-2812 was coming from the other side. Sh.Jai Parkash died on the spot. A petition was filed under Section 163A of the Motor Vehicles Act. In the claim petition itself, it was urged that the deceased was earning Rs.15,000/- per month. The learned Tribunal held that the accident occurred due to the negligence of the deceased himself and, therefore, dismissed the claim petition. This was a case filed under Section 163A of the Act. In fact this petition under Section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs.40,000/- per annum. …3… The Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd., Baroda, (2004) 5, SCC 385 has clearly laid down that where the income of the deceased-victim is more than Rs. 40,000/- per annum, the claimants are not entitled to file a petition under Section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:- “51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs.40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society. 52-66. x x x x x x x x x x x x x x x x x …4… 67. 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 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.” Therefore, the petition under Section 163-A of the Act was not maintainable since the income of the deceased was more than 40,000/- per annum and in fact, claimed to be Rs.1,80,000/- per annum. Having held that the petition was not maintainable, it is obvious that the award of the learned Tribunal is an award passed without jurisdiction and is accordingly set aside and the claim petition filed by the petitioner is dismissed as being not maintainable. The law as to whether a claim petition under Section 163A of the Act could be filed by the heirs of the deceased whose …5… income was more than Rs.40,000/- per annum was in a state of flux and the position was not clear till the Apex Court gave its judgment in Deepal Girishbhai Soni’s case. In this view of the matter, I am of the considered view that the petitioner, if so advised, shall be at liberty to file a fresh petition under Section 166 of the Motor Vehicles Act, 1988. No order as to costs. December 21, 2009 ( Deepak Gupta ) (m) Judge.