' "^-..€?h BEFORE THE HIGH (^CfURT OF CHHATTISGARH AT BILASPUR(CG) MISC. APPEAL (C) N0. H5.5/ 20U ^•'.-!^-w w^ '^ ^•^:''—<" 1 t APPELLANT :1. 3. ^'s^"^\ ...^;"^'"' ^^-"^ RESPONDENTS Harjinder Singh aged 42 years S/o Bahadur Singh Jaspal Singh Aged 16 Years S/o Harjinder Singh Simran Kaur aged 15 years S/o Harjinder Singh * ( Claimants/Appellants no.2 and 3 Through Natural Gardian Father ^ Claimnat/appellant no.l) ( All Above r/o Plot No. 14-15, MaitriKunj .fisali, Bhilai, Disfcrict Durg '^ VERSUS : 1. DarshanSingh R/o M.I.G-II/422, Hudco, Bhilai District Durg (CG) 2. TheNational Insurance Company Through Divisional Manager, Akash Ganga Complex, Supela, Bhilai, District: Durg(CG) APPEAL UNDER SECTIQN 173 OF THE MOTOR VEHICLES ACT, 1973 ^. ^) APPELLANT: RESPONDBNTS: HIGH COURT OF CHHATTISGARH, BILASPUR DB: Hon'blel. M.-QUDDUSI 8s Hoa'ble G. MINHAJUDDIN, JJ M.A(C). No. 425/2011 Haijuider Siagh and ofhers Vs. Darshaa Siagh aad anofher MISC. APPEAL UNDBR SBCTION 173 OP THB MOTOR VBHICLES ACT.1988 Appearasice: Mr. Anurag Jha, couusel for the Appellants. Mr. Vijay Kuinar Saliu, counsel for restyondent no,2. ^-- Per I.M. OUDDUSI, J. ORAL ORDER (08.12.2011) 1. This appeal has been filed by tlie Claimaats against the irapugned award dated 12,01.2011 passed by tlie Seventh Additional Motor Accident Claims Tribunal Durg, District Bilaspur (C,G) io. Claim Case No,78/2009 disinissiag tlie clami offhe appellaats. 2. The facts of the case as per tlie version of the clainiaats are that on 12.02.2009 at about 8.40 p.m. deceased Smt. Maaniohaii Kaur was goiag on Motorcycle beariiig Regn. No. C,G.07-LJ/2011y as piUion rider, fronx Sector-4 Central Avenue to Sector-6 where her house is situated. The said motorcycle was being driven by her husband Le., Appellaiit no.l herem, On the way an unknowii motorcycle dashed the said niotorcycle, due to which, deceased fell down aad sustaiaed grievous head imuiy< She was iisixn-ediately brought to the Sector-9 Hospital where she died due to tiie head iiijury. The deceased was 42 years old. She was doiag tailormg works aiid was eamiag Rs.86,900/- per annuin. The claimants being dependents/legal representatives have filed clami petition u/s 163-A of tlie Motor Vehicles Act, for the awaid of a total coinpensation ofRs, 16,20,000/- on various heads. 3. *' The leanied Claims Tribunal has disbeMeved tiie version of the clamiants aad rejected the claiai of fhe appeUaats holdiag that fhe death of deceased was not due to the accident, 4. We have heard learaed counsel for the parties aad have also gone fhrough fhe record, * "^'- 5. First of all, we have found that in. the claioi petition, fhe nioufhly iucome has been shown as Rs.86,900/- per aanuni but inentioned th.at it should be tareated as Rs.40,000/- per aanuni, Since tlie clami petition was filed u/s 163-A of the Motor Vehicles Act, fhe claimants are abandouiag fhe rest of fhe part exceedmg Rs.40,000/- and are claimmg only fhe iaconie at fhe rate ofRs,40,000/- per aanuni. 6» Hon'ble fhe Supreine Court m Oriental iBSuyanee Co.Ltd- Vs. Hansrajbhai V. Kodala aaad otheys^ (2001) 5 SCC 17S has held in para 15 that "However fhis benefii can be availed of by the clamiaiit only by restrictmg his claioi on fhe basis of mcome at a slab ofRs.40.000/- which is tiie highest slab ia the second schedide which iadicates that the legislature waated to give benefit of no-fault Uability to a certaia Umit. This would clearly iadicate fhat fhe Scheme is in. altemative to the determiaation of coiiipensation on faylt basis under th.e Act.?? However, ^: <%^-"",? vr':^ '^ disagreeiag with tlie said proposition, a fhree judge bench of Hon'ble Supreme Court m Deepal Girishbhai Soni aad others Vs. Uaited India Insurance Co. Ltd., Baroda (2004) S SCC 385 held ia paragraph 67 as under: "67. We, iherefore, are of fhe opinion thai Kodala has con'ectly heen dedded. However, we do not agree with the findings in Kodala that if a person invokes provisiovjs of Section 163-A, the annual inoome of Rs.40,000/' per anmzm shall be treated as a cap. In our opinion, the proceedings under Section 163'A being a sodal security provision, promdingfor distinct scheme, only those whose annual income is upto Rs.40/300/'- can take the benefit thereof All other claims are required to be determined in terms ofChapterXII ofthe Actw ^'- 7< lu view of the above, fhe claiai petition u/s 163-A where fhe hicorae of the deceased was shown as raore fhan Rs.40,000/- was not inaititain.able. 8. At fhis stage, leained counsel for the appeUants subinits that fhe clamiaiits dunng the pendency of fhe proceediags at the origuial or appellate stage caa araend tlieir clauxi petitiou u/ s 163-A to petition u/s 166 as fhe poor and illiterate persons like tlie claiinaats should not be sufferers due to lack of legal knowledge and legal advice aud they should not be deprived of fheir genuuie clahxi. 9. Secondlv, we have found that flie leamed Claims Tribunal has held that fhe deceased did not die due to the accident adsiag out of fhe use of inotor-vehicle. But it has conie on record fhat ^ she fell down froni laotorcycle perhaps dzie to nausea aiid sustaiiied grievous head mjury resultiag ia her deafh, In the postmortem report, the Doctor has opmed that cause of death ^?^("^.C^7^y^ ' s 1 "^s 'S /ff .s i%^^'<-" ^ 'w^'.^ was due to head iojuiy wifh heinorrhagic shock. Therefore, fhere is no dispute that fhe deceased feU down while goiag on fhe inotorcycle as piUion rider aad sustaiaed head iajnry rcsulting ia her deafh. Hence, it cannot be said fhat fhe deafh. of fhe deceased was not due to fhe accident arisiag out of ftie use ofniotor-vehicle, 10. In section 140 of the Motor Vehicles Act, 1988 it has been ' provided fhat where deafh or pennanent disableinent of any person has resulted froni an accident'arisiag out fhe use of a m.otor vehicle or raotor vehicles, fhe owner of tiie vehicle shaU, -or as fhe case may be, the owners of fhe vehicles shaU, jouitly aad severally, be Uable to pay conipenssation ia respect of such ^t-- deatli or disableiaeut ia accordaace wifh fhe provisions ofthis section, Section 163-A also provides that fhe owner of fhe inotor-vehicle or fhe aufhorized iasiirer shall be Uable to pay in the case of deafh or permaiient disableraent due to accident arisiag out of fhe use of inotor-vehicle, corapensation, as indicated m fhe Second Schedule, to the legal heirs or the victiin, as the case saay be, Further sub-section (1) of Section 166 provides for coinpensation adsin.g out of aa accident of fhe nature specified in sub-section (1) of section 165. Section 165(1) is relevaat here aiid quoted below: "165(1) A State Govero.Hient niay, by notification in fh.e Official Gazette, constitiite one or more Motor Accidents Claims Tribunals (hereiaafter ia fhis chapter referred to as Claims Tribiinal), for such area as niay be speci&ed ia' fhe notificatiou for fhe purpose of adjudicating upou clamis for coinpensation in. respect of accidents iavolvuig fhe deafbi of, or bodily in.jury to, persons arising out of fhe use of niotor vehicles, or '^ '^ %1 13 / damages to aiiy property of a fhird party so adsmg, or both." Explaaation.—Forthe reiaoval of doubts, it is hereby declared that the expression "claims for conipensation in. respect of accidents uivolviag flie deafh of or bodUy ifijury to persons adsing out of fhe use of raotor vehicles" iacludes claims for conipensation under section 140 aad section 163-A^ 11. ^herefore, we hold fhat fhe death of deceased arose out of fhe use of inotor vehicles aiid set aside tlie impugned award dated 12.01.2011 passed by the Tribunal. 12. Iri view offhe above discussion, we are ofthe opiaion that it is a fit case to reinit the niatter reinitted back to fhe Tribunal for reconsideration, Hence, we atlow this appeal ta part aad renut fhe niatter back to the Tribunal for decision afresh wiih Uberty to fhe claLman.ts to file aa appUcation for convertmg fhe claiDa petition u/s 166 of ttie Motor Vehicles Act or aay ofher provisions available to tihLein, 13. The Tribunal shaU reconsider the matter and shall see that fh.e deceased was a piUion rider; and if fhere was package poUcy, Circular No. IRDA/NL/CIR/F&U/073/11/2009, dated 16.11.2009 issued by fhe Insuraace Regulator Developinent Aufh.ority (IRDA) would be appMcable, whereby it is confirmed 4 th.at iasured's liabUity ia respect of PiUion Rider camed on two wheeler is covered under fhe Staadard Motor Package PoUcy. { 14. Needless to nieation that fhe parties shaU be allowed to amead fhe pleadio.gs, adduce further evidence, file docuinents or get fhe docuinents verified etc,, and thereafter fhe Tribunal shall inake tfae award a&esh at tiie earUest. ,.:—:-,,^, "'1'^ "^ S ~^I%|-, 1 s' i 13. The parties shall appear on 24th ofJaauary 2011 beforc tlie Tribunal. The records of fhe Tribunal shall be sent back with s out further delay. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Rao