IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fQNo. 'Z^'3> /2010 Tih'isln'n 8?''"^ I- APPELLANT Respondent no. 1 (^ Hemant Kumar Bhoi, S/o. Sartik Bhoi, aged about 32 years, R/o. village :'... ,,^.Vasudevpara, Pithora, Tahsil & *^»<iT r^:^^._ ^y~" District Mahasamund (C.G.) r;\-u^ ^^••'''"g^^ .V^*' i'\^l^2J^ ...(Owner ofMini Busbearins resistrationno. s^^^ ,A64-"" C.G 06/C-8009} VERSUS RESPONDENTS Claimants 1] 2] 3] ^- 4] Smt. Sevti Bai, aged about 30 years, Wd/o. Late Dukalu Yadav Ku. Tulsi, aged about 8 years, D/o. Late Dukalu Yadav Ku. Bharti, aged about 4 years, D/o. Late Dukalu Yadav Respondent no.2 & 3 are minors, through their natural guardian/mother Smt. Sevti Bai, aged about 30 years, Wd/o. Late Dukalu Yadav All above are R7o. Village Darripar Fingeshwar, Police Station Fingeshwar, Tahsil & District Raipur (C.G.) The Oriental Insurance Company -Eimited, through: Branch Manager, The Oriental Insurance Company Limited, Madina Manjil, Kachhari Chowk, Raipur, District Raipur (C.G.) ... (Insurer ofMini Bus bearins resistration no. C.G 06/C-8009) Respondent/respondent no.2 APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT Claim in tribunal at Rs. 13,30,000/- Amount awarded Rs. 3,93,900/- Claim in appeal Rs. 3,93,58o/- 'w 1 RESPOMDENTS: HIGH COURT OF CHHATTXSGARH. BILASPUR DB: HOW'BLB I. M. QUDDUSI & HOK'BLB ©.BSIKHAJUDDIK, JJ M.AICl Mo, 233Z2010 Hemant Kximar.Bhoi Vs. Sint. Seveti Bai & others MI8C. APPBAL UNDBR SBCTIOB 173 OF THS MOTOR VBHICLES ACT.1SSS Appearance: Mr. Maaoj Paranjpe, counsel for the appeUaat. Mr. Sudhir Agrawal, counsel for respondent No.4. ORAI, OROBR (11.10.2011) Per I.M. GUDDUSI. J, 1. This appeal has been filed by fhe owner against the iinpugned order dated 08.12.2009 passed by the Addl. Motor Accident Claiuis TribuiLal, Gariyabaad, Distt. Raipur (C.G) iu Claim Case No.39/2009 agauist fastening liability upon fhe appeUaat, who is fhe owner ofthe vetucle. 2. The claimants beiag legal representatives/dependents of fhe deceased Dukalu Yadav have fited claua petition u/s 163-A of the Motor Vehicles Act, 1988 for the award of a total compensation of Rs. 13,30,000/ - on various heads alleging fhat on 22.04.2008 Dukalu was driviag the Minl Bus bearini Regn.No.C.G.06/C-8009 which struck against a Truck due to which Dukalu sustained certam grievous imuries and during the course of ticatment he died. At fhe time of accident the deceased was aged about 38 years, he was driver by profession and was earaiag Rs.4000/- per nionth. ^., ;;^s1^ •^. .V ,,» '^. ^5"®, 8 H 3. Leamed Claims Tribimal held that fhe Miai Bus No. C.G.06- C/8009 which was being dnven by the deceased struck agaiast a stadonary truck near village Chliatauna at Bagga Dhaba, as a icsult of wbich, Dukalu Yadav died and fhe claimaats are entiUed to reccive a sum ofRs.3,93,500/- fi-oni fhe appeUant. 4. We have heard leamed coiuisel for the parties and have also gone thiough the records ofthe Tribunal. 5. We have perused the claun petition aad fouiid tbat the inonthly inconie of fhe deceased has becn shown as Rs.4000/-. Therefore, the aanual inconie coines to Rs.48,000/- which exceeds fhe outer Uxmt of Rs.40,000/- prcscribed in Second Schedule appended to Section 163-A of fhe Motor Vehicles Act. Sincc the claini petition was filed u/s 163-A of fhe Motor Veliicles Act, the claimaiits are abandoning the rest of the part exceedine Rs.40,000/- and are clamung onlv the iuconie at tbe rate ofRs.40,000/- per annum. 6. Hon'ble the Supreine Court in Orlen.tul Insu.ramce Co.Ltd. Vs. Hansrafbhal V. Koddla cmd otfaers, (2001) 5 SCC 175 has held ia para 15 that ''However this benefit can be availed ofby fhe claiinaut onlv bv restricting his claim on fhe basis of incoine at a slab of Rs.40,000/- which is the highest slab iu the second schedule which iadicates -fhat ffae legislature waated to give benefit of no-fault liabiUly to a certain lunit. This would clearly indicate that the Schenie is in altemative to the detcrmination of coinpensation on fault basis under fhe Acf However, disagreeing wifh the said proposition, a three judge bench of Hon'ble Supreme Court in Oeepal Qirishbhdl Soni cuid ofhers Vs. Unlted Inelia Insitrem.ee ,Co. Ltd., Barodd. (2004) S SCC 385 held in paragraph 67 as under: Ste-— 3"—:na*i&'-£ 9. "67. We, fh.erefore, are of the opuiion fhat Kodala has correcfly been decided. However, we do not agsse with fhe fiiidings iu Kodala that if a person iavokes provisions of Section 163-A, fh.e aniiual incoiae of Rs.40,000/- per aanuni shall be treated as a cap. In our opiaion, the proceedings zinder Section 163-A beiag a social securily provision, providiug for distinct scheine, only those whose annual incoine is upto Rs.40,000/- can take fhe benefit thereof. AU ofher clauas are required to be deteruuned iu terms ofChapter XII ofthe Act." lu view of fhe above, the claiin petition u/s 163-A where the inconie of the deceased was shown as inore fhaa Rs.40,000/- was not uiauitainable. Therefore, fhe impugned award in favour of the claimants is Uable to be set aside holdiug fhat fhc claiin petition was not inaintamable. Hence, the instaitt appeal is aUowed. The impugaed awanl dated 08.12.2009 is set aside. Consequently fhe claiin petition filed u/s 163-A ofthe Act also staads disniissed as not niaintaiaable. However, this order will not debar the claimants to take recourse oflaw available to fhem by fiUng a claim petitioD. lu the result, this appeal is allowed. No order as to cost(s). Rao Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Kan- •-~^—^-.£A~» asr ••'?Y"^p|Hiars^£:;'.:^, '•"te**-^