^' ^^;:il^ff BEFORE THE HON'BLE HIGH COURT OF CHHATtISGARH AT BILASPUR M.£^10. 334 /2011 APPELLANT CI^AIMANT 7~ /, RESPONDENTS l., XEFENDANTS /(Owner) ^^?" V^.^-'^-"',...-:"[ ^5^<-^ ^>^ ^ nsurer ^ -Manoj Kumar Pandey, aged about 26 years, S/o. Kashinath Pandey, occupation - Driver, R/o. Mohalla - Bauripara, P.S. / Tah. Ambikapur, Distt. Sarguja (CG) VERSUS Smt. Pushpa Devi, aged about 35 years, D/o. Ramprakash Dubey, W/o. Virendra , Nath Pandey (Patwari) (Ownerof Vehicle Marshal Jeep No. CG015/2610), R/o. Mohalla Bauripara (Besides Heera Hardware gully),PS / Tah. Ambikapur, Distt. Sarguja (C.G,<) ^:- Branch Manager, the Oriental Insurance Company Limited, Branch - Ambikapur, Office -Ambedkar,Near Ambedkar Chowk, Distt.Sarguja (CG) ^ MISCELLANEOUS APPEAL UNDER SEGtION 173 OF THE MOTOR VEHICLEACT, 1988 HIGH COURT OF CHHATTIS6ARH AT BIL^SPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR.6ULAM MINHAJUDDIN. JJ Appellants Respondents M.A. [C1 No.394/2011 Manoj Kumar Pandey Vs Smt Pushpa bevi & o1+iers Present: Mr. A.N. Bhakta, Advocate for the appellant. Mr, Shantanu Kumar, Advocate for respondent No.l. AAr. R. Awasthi, Advocate for 1+ie respondent No,2. ORDER (Oraiy (2»d September. 2011) I.M. Quddusi. J; 1. Heard. 2. The injured-claimant has filed this miscellanemjs appeal ogainst the award dated 07.03.2011 passed by the learned Motor Accident Claims Tribunal, Surguja, Ambikapur (for short lthe Claims Tribunal') in Claim Case No.126/03. 3. Facts of the case, in brief, are that on 24.07.2003 the appellant was returning to Ambikapur from Raipur by driving the vehicle bearing regjstration number C6015-2610. When he reached near Dharsiwa Highway, steering of the said vehicle got jammed due to which he lost . control over the said vehicle and it collided with the truck bearing registration No.MP23-B-3721, which was.parked on the road side and was not visible. In the said accident, the appellant has suffered permanent disability and therefore he has filed a ciaim application before the Claims f Tnbunal seeking compensation and the same wcis dismissed by the Claims Tribunat vide award dated 03.09.2004. Being aggrieved by the award dated 03.09.2004, the appellant has preferred an appeal before this Court bearing M.A. No.1055/04 and the.same was partly allowed by this Court vMe oral order dated 21.10.2010 and the matter has been remitt-ed back to the Claims Tribunal with certain observations and directions for deciding '11 y t. ^. ^' ^' ^ 1^.^'.,.^ ^s^^ <-'- the claim application afresh. The Claims Tribunal vide impugned award has again dismissed the claim cpplication of the appellant on the ground that the claim application under Section 163-A of the Act, 1988 is not maintainable and directed the appellant to approach the Commissioner under the Workmen's Compensation Act, 1923. 4. Learned counsel for the appellant has submitted that the appellant should not have been denied legitimate compensation as Section 163-A of 1+ie Motor Vehicles Act, 1988 (for brevity 'the Act, 1988') is a special provision where there is no necessity to plead or establish negiigence or wrongful act/ or default and thus, the Claims Tribunal has committed an error in rejecting the claim of the claimants on the ground that the claimant failed to prove his case< 5. We have heard learned counsel for the parties- We have also peru^d the records of the Claims Tribunal. 6. Before proceeding further, it is necessary to peruse Section 167 of the Act, 1988 which reads as under:- "167.0ption regarding claims for compensation in cert-ain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person 9ives rise to a cbim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both/' 7f In the ins-tant case, the appellant-claimant has filed claim application before the Claims Tribunal under Section 163-A of the Act, 1988 stating therein that his annual income is Rs.36.000/-. However, the Claims . Tribunal has dismissed the claim application on the ground that the same is i?ot maintainable and the claimant should approach the Commissioner under the Workmen's Compensation Act, 1923 for grant of compensaition. ^ "'^^,,:.-. 8. But, in view of the provisions made under Section 167, quoted above, we are of the opinion that the claim application filed by 1+ie appellant under Section 163-A of the Act, 1988 was maintainable and it could not have been dismissed by the Claims Tribunal as not maintainable with a direction to the appellant to approach the Commissioner under the Workmen's Compensation Act, 1923 for grant of compensation. 9. Further, the Claims Tribunal has committ-ed a manifest error of law in holding that the injured cbimant himself was ne9ligent because in Section 163 (2) of the Act, 1988 the legislature has provided that"//? anychm for campensation under sub-section (1), Ihe claimant shafl not be wguired to plead or establish that Ihe deaiii or permanent df^blement in respect of which the clam has been macfe was due 16 any wrongfulact or neglect or default of 1iie owner of the vehicfe or vehicfes concernecS or af any olher persontt Further, in the matter of De^pal StrJshbhai Soni and others Vs, United India Insurance Co. Ltd., Baroda re^rted in (2004) 5 SCC 385 also the Hon'ble Supreme Court in Para-66 has held thus:- "66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, ony person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The AAotor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under <iny other provisions of this Act" or llany other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other iaw for the time being in force. S&ction 163-A of the Act covers cases where even negligence is on the part of the victim- It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." lO.Thus, it is abundantly clear that Section 163-A covers the cases where 'even negligence is on the part of the victim. However/the Claims Tribunal cpuld not make out difference belween the provisions of Section 166 and - Section 163-A of the Act, 1988 and therefore, in a claim petition filed ^.:s • ^ ^^ y Roshan/^ lrf~ under Section 163-A of the Act, 1988 has considered negligence of the victim. 11. On the basis of above analysis, the instant appeal is allowed, impugned award is set aside and the matter is remitted back to the Claims Tribunal for taking decision afresh in light of the observations made in this order* The Claims Tribunal shall first decide QS to whether there is any breach of policy condition or not and thereafter make the award^ Needless to mention that -rfie CIaims Tribunal shall provide opportunity to the parties to adduce further evidence, if any, and amend the pleadings or to file documents or verify the documents already ftled. The parties are directed to appear before the Claims Tribunal concerned on 12 October. 2011. The Claims Tribunal shall make an endeavour to decide the claim case expeditiously preferably within a period of three months from the date of appearance of the parties. 12,The Registry is directed to transmit 'recor^t. of the Claims Tribunal concerned without further delay< No order as to costs. 13-Certified copy as per rules. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge