G Gc'}^> BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH, AT BILASPUR (CG) M.A.(C)NO. 5|!3> /2010 g_ n n !S""?3f(R Ra' i'..:.'.;ya, SJ©Sg APKELLANT fsurer - N.A. No. 2) THE NEW INDIA ASSURANCE CO. LTD., THROUGH THE BRANCH MANAGER, ABOVE DENA BANK, NANDNI ROAD, .BmLAI (CG) ^••o"L HOUGHAUTHORIZED AUTHORITY 1 ^•^:".Q-t-^ TfSE NEW INDIA ASSURANCE CO. LTD. .^•""^"S^T^..-" "<*DIVISIONAL OFFICE, II FLOOR, RAMA ^^"^ 'S.O-'-'"" TRADE CENTER, OPP. RAJEEV PLAZA, BUS STAND ROAD, BILASPUR (CG) s«^-'* '^ RESPONDENTS ^("Applicant No.l) (Applicant No.2) ^- ^ > (Applicant No.3) 3.. 5 VERSUS SMT. SARJEET KAUR, AGED 35 YEARS, W/0 LATE JASWANT SINGH, KU. SARVJEET KAUR, AGED 14 YEARS (MINOR), D/0 LATE JASWANT SINGH, KU. MANJEET KAUR, AGED 13 YEARS (MINOR), D/0 LATE JASWANT SINGH, (Applicant No.4) 4^ DEVENDRA SENTGH, -*"" AGED 9 YEARS (MBSTOR), ^ S/0 LATE JASWANT SINGH, APPLICANTNO. 2 TO 4 MINOR THROUGH NATURAL GUARDIAN & MOTHER SMT. SARJEET KAUR, W/0 LATE JASWANT SD4GH (APPLICANTNO. 1) ALL B£SEDENTSOF PUNJABI MOHALLA, NAYA KHURSIPAR MARJKET, BH3LAI-12, THANA KHURSIPAR, TEHSIL & DISTRICT DURG(CG) r ® CVehicle Owner - NA No. 1) 5^ DHARMENDRA SENTGH, S/0 SUCHCHA SINGH, GAUHATI-BOMBAY TRANSPORT NAGAR, HATHOJ, BHILAI, TEHSIL & DISTRICT DURG (CG) ^' APPEAL U/S 173 OF THE MOTOR VEHICLES ACT. 1988 ~^^. Appeal valued at Rs. 5,69,50Q.QO /f % S 'SSssSSS'c, S $, '^^^SisSs^ l' ^ /. ^ £• HIGH COURT QF CHHATTISGARH : BILASPUR •M._A._ [QL , 813_of_2010 Appellant The New India Assurance Co. Ltd. Versus Respondents Smt. Sarjeet'Kaur 8s others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri 0. Minhajuddin, JJ Shri Mahavir Bhatnagar, Advocate for the appellant. Shri M. P. S. Bhatia, Advocate for the respondent No.l ORDER (Oral) ( Passed on this 7fh day of July, 2011 ) ^ PerI. M. Quddusi J. The instant appeal, filed by the appellant/Insurance Company arises from the award dated 10.3.2010, passed by the 8th Additional Motor Accident Claims Tribunal (FTC), Durg in Claim Case No. 96/2009, awarding a sum of Rs. 5,69,500/- as compensation to the claimants, holding the insurance company as liable to pay the amount of coinpensation. The facts, in brief, as projected by the claimants are that deceased Jaswant Singh was working as Driver in the employment of the non-applicant No.l (Dharmendra Singh) and was driving the Truck- Trailer, bearing registradon No. C.G. 04-D/7577. On 2.5.2009 Jaswant Singh along with helper Sunil Kumar was going to -Jharsugda from Ahmadabad by loading pipe on the vehicle. On the way near Arandor village, PoliceStation - Parol, at about 4.00 p.m. the vehicle got out of control 6f the driver and tumed turtle. As a result of this accident Jaswant Singh, who was driving the vehicle, died as he was pressed between the steering and seat. The claimants, 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 ofRs. 28,80,000/-. \^ '^ ^ ^' A 4. We have heard leamed counsel appearing for the parties and perused fhe record and the findings of the Tribunal and found that the incoine of the deceased in the claini petition has been mentioned as Rs. 5000/- per month and Rs. 100/- as daily allowance. Thus, according to the claim petition the deceased was earning Rs. 60,000/- per annum, which exceeds Rs. 40,000/-. We are ofthe opinion that since fhe claim petition was filed under Section 163-A of the Motor Vehicles Act which is exceeding the maximum licnit mentioned in Schedule -II of the Act, 1988, i.e. Rs. 40,000/-, the claiin petition was not maintainable. However, the Tribunal awarded fhe compensation treating the monthly incoine of the deceased as Rs. 4500/- and yearly income as Rs. 54,000/-. 5 . Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala and others1 in para 15 has held that "However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs. 40,000/- which is the highest slab in the Second Schedule which indicates that the legislature wanted to give benefit of no-fault liability to a certain limit. This would clearly indicate that the Scheine is in alternative to the determination of compensation on fault basis under the Act." 6. A three Hon'ble Judges Bench of Hon'ble Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd. Baroda2 in paragraphs 46 and 67 has held as under : "67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findfngs 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." a ^ » 7. In view of the above, the claim petition under Section 163-A where the income of the deceased is more than Rs. 40,000/- was not '(2001) 5SCC 175 2 (2004) 5 SCC 385 maintainable. Therefore, the impugned award in favour of the claimants is liable to be set aside holding that the claim petition was not maintainable. Therefore, the instant appeal is allowed. The irapugned award is set aside and it is held that the claim petition under Section 163-A of the Act, .1988 was not maintainable at all. No order as to costs. 8. At this stage leamed counsel appearing for the claimants submitted that fhe liberty may be given to the claiinants to file a claim petition under any other provisions of law where the claim petition is maintainable, like under Section 166 af the Act, 1988 or under the Workmen's Compensation Act. We are of the opinion that initially since the claim petition under Section 163-A of the Act, 1988 was not maintainable, it is open to the claimants to file another claim petition under Section 166 of the Act, 1988, which is maintainable. 9. Since the deceased was an eraployee of the owner of the vehicle, it is open for the claimants to file a claim petition before the Commissioner, under the Workmen's Compensation Act also. Por that purpose it is necessary to mention that the claim petition before the M.A.C.T., which was not maintainable, was filed on 29.7.2009, proceedings in which procee&ed with and the same was decided by making an award on a non-maintainable claim petition on 10.3.2010. Thereafter, the instant appeal was filed on 14.6.2010. If the claim petition before the Commissioner for Workmen's Compensation is filed, the Commissioner may take the above facts into consideration while deciding the application for condonation ofdelay, ifany. 10. The amount which has been deposited by the appellant shall be allowed to be withdrawn by k, if not already disbursed, but if the same has been disbursed and a fresh claim petition is filed, the amount shall be subject to decision of that claim petition. No order as to costs. /--- .——— Sd/- . lM.QUddusl ]udge Sdf- G. Minhajuddin Judge Thakur