SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. 1 SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. DATE OF ORDER : - 24.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. Jagdish Vyas, for the appellant. Mr. Rajesh Panwar, for the respondents. <><><> Heard learned counsel for the parties. The only question in this appeal is that whether a person having income more than RS.40,000/- per annum can maintain the claim under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act of 1988). According to learned counsel for the appellant in view of the decision of the Hon'ble Apex Court delivered in the case of Deepal Girishbhai Soni & Ors. Vs. Uninted India Insurance Co. Ltd reported in 2004 ACJ 934, the victim having more than Rs.40,000/- annual income cannot maintain the claim under Section 163A of the Act of 1988. SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. 2 However, he can get the claim under Section 166 of the same Act. According to learned counsel for the appellant Section 163A in the Act of 1988 has been inserted with specific object to give relief to a section of the public having income upto particular level. The Hon'ble Apex court clearly held that the income of Rs.40,000/- is the cap and no claim of such victim whose income is more than Rs.40,000/- can be entertained by the Motor Accident Claims Tribunal under Section 163A. Learned counsel for the respondents vehemently submitted that such is not restriction provided for under Section 163A nor under the schedule enacted under Section 163A. It is also submitted that the structure formula may have given the formula for assessing the compensation for persons having income upto Rs.40,000/- but a person who has income more than Rs.40,000/- can reduce his claim to the limit provided for claims upto 163A of the Act of 1988 because of the reason that he also a person who is not willing to go for long litigation under Section 166 of the Act of 1988 and in all matters the litigants are allowed to reduce their claim to come within the pecuniary jurisdiction SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. 3 of the court. It is also submitted that by reducing the claim, the claimants are loosing more and that is because of the reason that he cannot afford the long litigation in a case where victim who was more earning person lost his life in the accident which resulted into more pecuniary loss to the claimant which may be sufficient ground for not contesting the claim under Section 166 so that the person in harness may get the relief whatever that may be. I considered the submissions of learned counsel for the parties and perused the judgment of the Hon'ble Apex Court delivered in the case of Deepal Girishbhai Soni & Ors (supra). The argument advanced by learned counsel for the respondents may be attractive but once the matter has been considered by the Hon'ble Apex Court in Deepal Girishbhai Soni & Ors case (surpa), the Hon'ble Apex Court was conscious of all material facts, which were relevant for the purpose of deciding the issue and there appears to be no reason to think for a moment that the Hon'ble Apex Court might not have considered any of the aspect before holding it that Rs.40,000/- annual income is the cap for SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. 4 maintaining the claim under Section 163A of the Act of 1988. At this juncture, it will be relevant to mention here that in Deepal Girishbhai Soni & Ors' case, the question was that whether the award under Section 163A is interim and claimants are entitled to pursue their claim under Section 166 and in that case, the Hon'ble Apex court held that no award under Section 163A is full and final settlement of the claim and scheme envisaged under Section 163A leaves no manner or doubt that the rights and obligations of the parties are to be determined finally. The Section 163A does not provide for set off against higher compensation like under Section 141. Meaning thereby, a person who is entitled to submit application under Section 163A of the Act of 1988 having income upto Rs.40,000/- per annum is given choice to avail remedy as per his wish by lodging claim under Section 163A or under Section 166 of the Act of 1988. Once he chooses Section 163A then he is entitle for determination under Section 163A and he cannot thereafter contend that he was entitled to more compensation and he got the interim compensation or provisional compensation under Section 163A. Therefore, SBCMA No.172/2008 National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr. 5 the person who may have been entitled to more claim under Section 166 because of the reason that victim's monthly income was more than Rs.40,000/- cannot avail this benefit of Section 163A. The legislative wisdom of fixing the Rs.40,000/- is also challenged by learned counsel for the respondents but for that the validity of Section is not under challenge and there appears to be no reason for such a challenge. In view of the above reasons, the appellant's appeal succeeds as the claimant specifically pleaded that the victim had monthly income of Rs.11,321/- which is beyond the Rs.40,000/- per annum. In view of the above reasons, the appeal is allowed. The award dated 31st Oct., 2007 passed by the Motor Accident Claims Tribunal, Bikaner in claim case no.156/2005 is set aside. However, if the claimant is entitled to avail any remedy, she shall free to avail the remedy but only in accordance with law. (PRAKASH TATIA), J. c.p.goyal/-