BEFORE THE HON'BLE HIGH COURTOF CHHATTISGARHAT BILASPUR MISC. APPEAL fCI __lj SDll ^ •inin - APPELLANTS /: CLAIMANTS ^ ^^/ X'c?^./' .***' "\'^*' .-f'1' .•••'' •- •X' .••°' .*•° .-A,**' ^ .»*' >••' ^c^* ^' ,•••' .<£>'•' ..'•' RESPONDENTS: NON-APPUCANTS 1. Mahadev Sahu, S/o Late Shri Bhagatram Sahu Aged about 69 Years, 2. Rambati Sahu, W/o Shri Mahadev Sahu, Aged about 64 years, *<\ 3. Ku. Prachi Sahu, D/o Shri Yogeshwar @ Yadram Sahu, Aged about 08 Years, Appellant No.3 is minor represented by her grandfather Mahadev Sahu Appellant No.l All R/o Mangal Bazar, Kundrapara Gudiyari, Raipur, (C.G.) VERSUS 1. Yogeshwar @ Yadram Sahu, S/o Shri Mahadev Sahu Aged about 35 Years, R/o Mangal Bazar, Kundrapara Gudiyari, Raipur, (C.G.) (Driver ofVehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) 2. Pradeep Pillai S/oShri P.K. Pillai, Aged bout 35 years R/o J-752, 3anta Colony, Gudiyari, Raipur, C.G. (Owner of Vehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) 3. The Oriental Insurance Company Ltd. Through Divisional Manager, The Oriental Insurance Company Ltd. C.B.O.-2, Madina Building , lstfloor, Jail Road Kutchery Chowk Raipur, C.G. (Insurer ofVehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) 4. Chief Divisional Manager Railway, East Coast Railway Sambalpur, Orissa. APPEALUNDER SECTION 173 OF MOTOR VEHICLE ACT. 1988 yy- .as^v.^..M,il»ii^i^W^^MW^S^^^^MHMIMIIIIVH»VIISIIIIHIH^^ ^aSHPhSgffSE^HB c' 'v £.- HXGH CQURT OF CHHATTISGARH, BILASPUR DB: Hon'ble I. M. QUDDUSI fik Hoa'ble PRA8HANT KUMAR MI8HR&, JJ APPELLANTS: M.AtCl.No. 4/2011 Mahadcv Sahu aad others Vs- Yogesliwar @ Yadram. Sahu & ofhers RESPOMDENTS: MI8C. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLB8 ACT, 1988 Appearance: •*• Shri Satyendra Sahu, counsel for the appellaats. Snit. Chitra Shrivastava, couiisel for respondent no.3. ShriVinod Destunukh, onbehaIfofShriP.S. Koshi, counsel for respondent no.4. ORAL ORDER (10.03.2011) As per I.M. QUDDUSI, J, 1. This appeal has been filed against fhe iinpugned award dated 13.09.2010 passed by X Additional Motor Accident Claims Tribunal, Raipur, in C]aim Case No. 187/2009 dismissiag fhe claiin petition. 2. Brieffacts offhe case ^ per fhe version offhe claunauts are that on 27.4.2008 respondent no.l Yogeshwar @ Yadrain Sahu alongwifh his family members was goiug fi-oiu. Raipur to village Rasni by Maruti Car bearmg Regn.No.04-B/5864 fbr treatiaent of his wife who was haviag disease of Leukemia. He was driviug the vehicle slowly and steadUy. Afier treatment at Rasiii, they were goiag to village Borid to • aieet their relatives. Respondent no. 1 was driving the car slowly aad steadUy. On the way, at about 11.15 a.m., when the car reached raUway crossiag it could not stop- there due SaiassaeSs^^S. "piT*%N 73? --i- \ to faiture of brakes and nioved over the railway Ime, but ia the ineantiuie, the Trsan Engine bearing No. 14618 WDB-02 VSKP forcibly dashed back portion of the said car, as a result of which deceased Rashmi Sahu as also her other relatives who were also traveltmg in the gaid Car i.e., Moksh Kuiaar Sahu, Kimakshi Sahu, Ku. Kuki @ Purvi Sahu died on the spot whereas Ku. Pranjal succuinbed to the iajuries in the hospital. ^; In the instaat appeal, deceased Rashmi was wife of non- applicaut no.l aud mother of appeUaat no.3. At fhe tiine of accident, the deceased Rashini was a yoiing woinaa of 27 years old; she was doing tailoring work and was eaming Rs.3500/- per inonfh, AppeUauts 1 & 2 were the ia-laws of the deceased aad parents of non-appUcaat no. 1 aad appeUaat no.3 was daughter of deceased Rastuni Sahu and non-appUcant no.l. They have inade claim for the iintimely deafh ofdeceased Rashmi to fhe tuiie of Rs.5,53,000/- with 12% iaterest per anniiTn- The Tribmial has rejected fhe claim. petition on fhe ground that fhe claunaats 1 & 2 were iu-laws of deceased Rasluni Sahu, therefore, they are not legal representatives/ dependents iu. the presence ofhusbaad ofthe deceased, who is respondent no. 1 and there was no loss of dependency. Further the aruiual incoiue was showu as inore thaa Rs.40,000/- per amium aad such claun u/s 163-A was not niamtamable. Reference has beeu placed on a decision of the Supreme Court iu flecpal Gfrish Bhtd. Soni Vs. Dnited fndte Insiirance Co. LtA., reported in (2004) 5 SCC 385. --....J.__.._.:_-_._.-^^ M Vassys^ E ^^•"K?W-^^\n^ S' 6 . ''vSSSSW!^ P •^y ^s^ •^ .^-' \ 5. The Tribuaal has faUcd to draw atteution towards fhe fact fhat claimadt no.3 was daughter of deceased and as such she was entifled to get coinpensation even after it was denied to claiinants 1 & 2 but it could not have been denicd to the daughter of the deceased. 6. Furfher regarding the iacome ofmore fhan Rs.40,000/-, if the Tribunal had not fouad the'claun petition Tnamtninnhlr uader section 163-A of tiie Motor Vehicles Act, it could have treated fhe claim uuder sections 166 or 140 of the Motor Vehicles Act seeking the option ofthe claimants. HonTile fhe apex Court iu case of Deepal Oirlsh Bhai Soni (suprc^ has also observed disagreeiug fhe opiaion givea ia case of Orienta.1 Jnsurance Co. Ltd. Vs. Hansrc^ Bhcd V. Kodala reported in. (2001) 5 SCC 175 Qnly in respect ofits finding that if a pcrsou mvotes piuvisiolLS ^ acmual iucome ofRs.40,000/-shaUbetrCatedasacap and fttrther observed that provisions uader section 163-A beiag a social security provision, providiu.g for a defiuite scheme, only those whose anxiual iacoine is upto Rs.40,000/- can take the benefit thereof. But it has also observed that all other clmms are required to be determiaed ia terms of Chapter XII of fhe Act aud therefore, the Claiias Tribunal should have detenuiaed fhe claim luider ChapterXII ofthe Act which start fix)ia section 165 axid ends at section 176. 7. In view of fhe above, fhe matter requires reconsideration at the ead ofthe Tribunal for decision afresh. 8. Hence, we allow this appeal in part, set aside the iinpugned award aud remit the matter back to fhe Tribunal for decision M '@^B ."/ •ra,yiy.^ ':^ aCresh in the Ught of the obseryations inade above. Needless to inention fhat the parties shaU be allowed to amend fhe pleadiags, adduce further evidence, file the dociunents or get the dopuments verified ete aad fhereafter the decision shall be taken afresh by the Claims Tribunal. The recoids of the Tribunal shaU be sent back forthwifh. No order as to costs. Sd/- l.M.Quddusi Judge Sd/- PrashantKumarMishra Judge Rao < \'