IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 203 of 2005. Judgment reserved on : 30.3.2009. Date of decision : April 10, 2009. New India Assurance Company …Appellant. Versus Smt. Veena Devi & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. B.M.Chauhan, Advocate. For the respondents : Mr. Jagdish Thakur, Advocate vice Mr. N.K.Thakur, Advocate. None for respondent No.5. __________________________________________________________ Kuldip Singh, Judge The insurer of vehicle Gypsy No. DL-4CA-0284 has filed this appeal against the award dated 3.3.2005 passed by the learned Motor Accident Claims Tribunal, Una in MAC Petition No. 39 of 2003 allowing Rs.4,10,000/- compensation to respondents No. 1 to 4 on account of death of Ashok Kumar in an accident on 26.2.1999 near Poonch House between Kud and Patnitop. The respondent No.5 is the owner of vehicle. 2. The facts, in brief, are that respondents No. 1 to 4 filed claim petition under Section 163-A of the Motor Vehicles Act, 1988 (for short’Act’) claiming Rs.6,00,000/- compensation along with interest at the rate of 12% per annum on account of death of Ashok Kumar, driver, aged 39 years, who was ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes. at the disposal of respondent No.5 at Dhulhasti Kishtwar, District Doda, J & K. He was drawing Rs.5945/- salary per month. FIR No.22/1999 was registered at Police Station, Chanani, J & K. 3. The petition was contested by respondent No.5 by filing reply in which preliminary objection was taken that Ashok Kumar was himself responsible for the accident, therefore, petition was not maintainable, another objection that the petition in the present form was not maintainable was also taken. In addition, pleas of jurisdiction, limitation and resjudicata were also taken. On merits, it was pleaded that the deceased was an employee of CISF and was HC/Driver. It has been pleaded that security of the project was entrusted by respondent No.5 to CISF on contract basis. The deceased was working under the control and supervision of the officers of the said force and respondent No.5 had no say in the performance of the duties of deceased Ashok Kumar. Respondent No.5 denied the claim. 4. The appellant also contested the petition by filing reply and took preliminary objections that vehicle DL-4CA-0284 was not insured with the appellant, the accident took place due to the negligence of Ashok Kumar, therefore, petition is not maintainable, the deceased was not holding valid driving licence at the time of accident. The driver of the vehicle was not insured and therefore, petition is not maintainable. The petition under Section 163-A is not maintainable. Plea of jurisdiction was taken and it was also pleaded that the vehicle was being used in violation of terms of policy, the respondents No.1 to 4 have no locus standi to file the petition. On merits, most of the averments of the petition were denied for want of knowledge. The appellant ultimately denied the claim of respondents No. 1 to 4. 5. On the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1. Whether deceased Ashok Kumar on 26.2.1999 was driving Gypsy No.DL-4CA-0284 near Poonch House between Kud and Patnitop (J&K) resulting in his death as alleged? ..OPP. 2. If issue No.1 is proved whether the petitioners are entitled to compensation, if so, to what amount and from whom? …OPP. 3. Whether the petition is not legally maintainable? .... OPR. 4. Whether this Tribunal has no jurisdiction to try the petition? …OPR. 5. Whether the petition is time barred? ….OPR. 6. Whether the petition is barred by principle of resjudicata? …OPR. 7. Relief. In paragraph 20 of the impugned award, the learned Tribunal has observed that the learned counsel appearing on behalf of the petitioners (claimants) urged that keeping in view the basic salary of deceased Ashok Kumar the annual income exceeds Rs.40,000/-, however, petitioners (claimants) are ready to relinquish their claim qua the income beyond Rs.40,000/- so as to make the same amenable to the jurisdiction of the Tribunal. It has also been observed in the same paragraph of the impugned award that the statement of the learned counsel was recorded at the time of the arguments. 6. I have heard Mr. B.M.Chauhan, Advocate, learned counsel for the appellant and Mr. Jagdish Thakur, Advocate, on behalf of respondents No.1 to 4 and have also gone through the record. It has been submitted on behalf of the appellant that the petition under Section 163-A of the Act filed by respondents No. 1 to 4 was not maintainable inasmuch as, in the petition itself, the respondents No.1 to 4 have pleaded that deceased Ashok Kumar was drawing Rs.5945/- salary per month. In other words, the annual income of deceased from salary was Rs.71,340/-. The second schedule of the Act provides maximum income of Rs.40,000/- per annum for laying claim under Section 163-A of the Act and, therefore, petition filed by respondents No. 1 to 4 under Section 163-A was not maintainable. The learned counsel for the respondents No. 1 to 4 has submitted that no doubt to begin with income of deceased was shown Rs.5945/- per month on account of salary but at the time of hearing of the petition the respondents No.1 to 4 restricted their claim on the basis of income of deceased Ashok Kumar at Rs.40,000/- per annum. He has submitted that the learned Tribunal has rightly considered the petition under Section 163-A in view of restricted claim put forth by the respondents No.1 to 4 and no fault can be found with the ultimate award passed by the learned Tribunal. 7. The Apex Court in Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd., 2004 ACJ, 934, has held as follows:- “We, therefore, are of the opinion that Kodala’s case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of section 163-A, the annual income of Rs.40,000/- shall be treated as a cap. In our opinion, the proceeding 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 the other claims are required to be determined in terms of Chapter XII of the Act.” 8. In United India Insurance Co. Ltd. Vs. Kavita Chhabra and others, 2006 ACJ 1484, it has been held that application under Section 163-A in respect of a person whose annual income is more than Rs.40,000/- is not maintainable. In Sukhwant Kaur and others Vs. Sher Singh and another, Latest HLJ, 2008 (HP) 850, a claim petition was filed under Sections 140, 163-A and 166 of the Act. The claim petition was in fact treated to be a petition under Sections 140 and 166 and not under Section 163-A of the Act. The Division Bench in para 4 of the report has observed that petition under Section 163-A of the Act was not maintainable. In Oriental Insurance Co. Ltd. Vs. Bimla Devi, 2008 ACJ 1181, again it has been held that claim application claiming compensation for death of the deceased whose annual income was more than Rs.40,000/- is not maintainable under Section 163-A. In Bangalore Metro Transport Corporation Vs. Lakshmamma and others, 2008 ACJ 1532, the gross salary of the deceased was found Rs.4179/-, it was held that Tribunal has no power to restrict the income of the claimant or deceased as the case may be to Rs.40,000/- to bring the claim within the purview of section 163-A of the Motor Vehicles Act. 9. The learned counsel appearing on behalf of the respondents No. 1 to 4 has relied Guruanna Vadi and another Vs. General Manager, Karnataka State Road Transport Corporation and another, 2001 ACJ 1528, in support of his contention that a claimant during the pendency of the proceedings at the original or appellate stage can amend his claim petition under Section 166 to a petition under Section 163-A of the Act provided he satisfies other conditions such as the income factor etc. In Brijnandan Sharan Bansal and others Vs. Pepsu Road Transport Corporation and another, 2007 ACJ 692, the income of the deceased was proved Rs. 78,000/- but in view of the second schedule of the Act, the maximum limit of Rs.40,000/- of income was fixed and compensation was calculated by taking the income of the deceased at Rs.40,000/- per annum. The learned counsel for the respondents No. 1 to 4 has also cited Oriental Insurance Co. Ltd. Vs. Saroj and Others, 2008 ACJ, 594, wherein a claim of Rs.20,00,000/- was laid before the learned Tribunal under Section 163-A of the Act, but the learned Tribunal awarded Rs.2,66,000/- after assessing the income of the deceased at Rs. 24,000/- per annum. In appeal, the High Court rejected the contention of the insurer that the petition was not maintainable under Section 163-A. 10. In Deepal Girishbhai Soni (supra), the Supreme Court has clearly laid down the law that the proceeding under Section 163-A , being a social security provision, provides a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. The decision in Kodala case was not accepted which provides that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- shall be treated as a cap. In 2007 ACJ 692, Deepal Girishbhai Soni’s case was not noticed. In 2008 ACJ, 594, on facts it was found that deceased was earning Rs. 24,000/- per annum, therefore, both these judgments are not of any help to respondents No. 1 to 4. In 2001 ACJ 1528, it was held that by way of amendment a claim petition under Section 166 can be converted into a petition under Section 163-A provided other conditions such as income factor etc. are satisfied. 11. In the present case, even if for limited purpose, it is assumed that the petition filed by respondents No. 1 to 4 was under Section 166 of the Act and such petition could be converted into petition under Section 163-A after satisfying the requirements of Section 163-A, but no amendment application for converting the petition as per requirement of Section 163-A was filed. There is no statement on record of learned counsel for the respondents in the Tribunal below restricting the claim of respondents No. 1 to 4 on the basis of income of deceased Ashok Kumar at Rs.40,000/- per annum. 12. Ex.P-2 is the salary certificate of deceased Ashok Kumar showing that he was drawing Rs.5945/- salary per month. In affidavit Ex.PW- 1/A, Veena Devi has stated that her husband was drawing monthly salary Rs. 5945/-. In claim petition, the salary of deceased Ashok Kumar has been shown at Rs.5945/- per month. Thus, salary of deceased Ashok Kumar was proved to be Rs.5945/-per month or Rs. 71,340/- per annum. Therefore, in view of law laid down by the Supreme Court in Deepal Girishbhai Soni (supra), that under Section 163-A, only those whose annual income is Rs.40,000/- per annum can take the benefit thereof, the petition filed by the respondents No. 1 to 4 under Section 163-A of the Act was not maintainable. The learned Tribunal has erred in allowing the claim of respondents No. 1 to 4 by taking the annual income of deceased Rs. 40,000/- when it is proved that income of deceased was Rs.5945/- per month or Rs.71,340/- per annum, therefore, impugned award is not sustainable. 13. No other point was urged. 14. The result of above discussion, the appeal is allowed the award dated 3.3.2005 passed by the learned Motor Accident Claims Tribunal, Una in MAC Petition No. 39 of 2003 is set-aside and the petition filed by respondents No. 1 to 4 under Section 163-A of the Motor Vehicles Act is dismissed. It is made clear that despite the dismissal of the claim petition of respondents No. 1 to 4, they shall be at liberty to proceed in accordance with law and file claim petition regarding death of Ashok Kumar, as advised, before the appropriate authority/tribunal/ court, if otherwise permissible in law. No costs. (Kuldip Singh) Judge. April 10, 2009. (GR)