^ ^ s%^^ TTT^ ^ ^ it '^3'<^w^^^;^^-^^^>^^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL rC1 No.:,. %\^ /2008 D.B. APPELLANTS:- [Claimants] ^ ^ \a:%fe h^ .•'' -.ll."' y'y^ <^y ^y 1. Smt. Savitri Bariha, Age-33Years Widow of Late Biharilal Bariha, 2. 3. 4. Ku.Monika Bariha, Age-14 Years (Minor) D/0 Late Biharilal Bariha, Ku. Deepika Bariha, Age-12 Years (Minor) D/0 Late Biharilal Bariha, Yugal Kishore Bariha, Age-06 Years (Minor-Son) 8/0 Late Biharilal Bariha, RESPONDENTS:- ( Non-applicants ) By Caste- Binjhawar, The Appellant no.02 to 04 are Minor^ All the appellants are Residence of—— R/0 Village:- Chandibhauna, P.S.Ss Tahsil :-Saraipali, Distt:-Mahasamund (C.G.) :VERSUS: 1. Ranjeet Singh @ Lavli, S/0 Late -Nanak Singh, R/0 :-Infront ofJagannath Petrol Pump, Sent-para P.S. Pithora, Tahsil 85 Distt. Mahasamund[C.G.] [Driver of Motor-cycle Splendor- Cycle No. C.G./06 /C-0843.] f^/^wMc/^y ,/o8. ^ ij 2. IFFCO-TOKIO General Insurance Com. Ltd. Through Divisional Office at Lal 'Ganga Shopping Moll, 3rd Floor, Raipur, - Distt. Raipur [C.G.] [Ins. Com. of Motor-cycle Splendor- Cycle No. C.G./06 /C-0843.] €^ MEMO OF MISC.APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. :- llu — HIGH COURT OF CHHATTISGARH, BILASPUR DB: Hon'ble I. M. QUDDUSI SB Hon»blePRASHANT KUMAR MISHRA, JJ APPELLANT: RESPONDENTS: M.A(C).No.810/2008 Smt. Savitri Bariha 85 others Vs. Ranjeet Singh & others ^iina^ MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Appearancei Mr. Anand Shukla, counsel for the appellant. Mr. Sanjay Agrawal, counselfor respondent no. 1 Mr. Y. S. Thakur, counsel for respondent no.2. Per I.M. QUDDUSI. J, ORAL ORDER (11.03.2011) 1. , iThis appeal has been filed by the claimants against the impugned award dated 09.01.2008 passed by the Chief Motor Accident Claims Tribunal, Mahasamund (C.G) in Claini Case No. 172/2006 dismissing the claim application of the appellants. 2. Brief facts of the case as per the version of claimants are that on 14.07.2006 deceased Biharilalwas going to Govt. Primary School, Pathsendri from Saraipali. On the way at about 10.30 a.m. near Jhilmila Petrol pump, one Motorcycle bearing regn.No.C.G.06-C/0843 which was being driven by respondent no.I in a rash, and negligent manner dashed Biharilal who sustained serious injuries on his head, arms and legs. He was admitted in Govt. Hospital, Saraipali and looking to the critical condition, he was brought to Medical •:wnc^" "••^. i ^SS^ ! ^s^ College Hospital, Raipur where he died on 14.07.2006. at the time of accident, the deceased was aged about 40 years; he was working as headmaster in Govt. Primaiy School, Pathsendri and was drawing monthly salary of Rs.12,000/-. The claimants being legal representatives/dependents of the deceased have made claim to the tune of Rs.il,50,000/- on various heads. 3. Learned claims Tribunal held that fhe accident has occurred when the deceased who was driving his motorcycle No.C.G.06-B/7639 dashed the motorcycle (Splendor) No.C,G.06-C/Q843 of non-applicant no.l; the deceased himself was negligent for the accident and the non-applicant No.l was not havingvalid and effective driving licence. 4. A perusal of the records shows that the deceased was driver a.nd owner of: Motorcycle (Boxer) No.C.G.06-B/7639 which dashed the other Motorcycle of respondent no.l bearing regn.np.C.G.06-C/0843 from behind. The insurer of Motorcycle (Boxer) No.C.G.06-B/7639 was not arrayed as party respondent. The deceased was having annual income of more than Rs.40,000/-. The claim petition was filed u/s 163-A of the Motor Vehicles Act. Respondent no.2 IFFCO TOKIO General Insurance Company Ltd., was made a party which insured the motorcycle No.C.G.06/C-0843, but it will make no difference as the claim petition was itself not maintainable as the income of the deceased is more than Rs.40,000/- per annum. 5. In a pase whpre the income is more than 40,000/-, if the Tribunal had found the claim pefition not maintainable / -: '^ •s%j ^€/ ;rii. Rao under section 163-A of the Motor Vehicles Act, it could have treated the claim under sections 166 or 140 of the Act seeking the option of the claimants. Hon'ble the Apex Court in case of Deepal Girishbhai Soni and others Vs. United India Insurance C. Ltd. Baroda reported in (2004) 5 SCC 385 has observed disagreeing the opinion given in case of Oriental Insurance Co.Ltd. Vs. Hansraj Bhai V. Kodala reported in (2001) 5 SCC 175 only in respect of its finding .i that if a person invokes provisions of section 163-A the annual income of Rs.40,000/- shall be treated as a cap and further observed that provision under section 163-A being a social security provision, providing for a distinctscheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. But it has also observed that all other claims are required to be determined in terms of Chapter XII of the Act and therefore, the Claims Tribunal should have determined the Claim under Chapter XII of the Act which start from section 165 and ends at section 176. 6. In view of the above mentioned facts and circumstances, the appeal fails and is dismissed. No order as to cost. ^'")—- Sd/- I.M.Quddusi Judge Sd/- prasbantKumarMishra Judge _- II -•