IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(MVA) 52 of 2006. Date of decision August 31, 2009. United India Insurance Co. Ltd. …Appellant. Versus Smt. Saroj Kumari & others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. Ashwani Sharma, Advocate. For respondents 1 and 2 Mr. Jagdish Thakur, Advocate. For respondents 3 and 4. Mr. G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the Insurance Company against the award made by the learned Motor Accident Claims Tribunal awarding a sum of Rs.4,10,000/-. Learned counsel for the appellant urges that the petition itself was not maintainable under the provisions of Section 163 – A of the Motor Vehicles Act, 1988 (hereafter 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - referred to as the Act), as the income of the deceased, was Rs.6000/- per month, as disclosed in column 6 of the claim petition. According to the learned counsel, this petition was maintainable under Section 166 of the Act. Learned counsel has placed reliance on the decision of this Court in Sudhir Mahajan v. United India Insurance Company Ltd. and another, 2007 (2) Shim. LC. 305 holding that petitions under Section 163-A of the Act are maintainable only in cases where the annual income of the deceased is up to Rs.40,000/- per annum. Learned counsel also refers to a decision of the Supreme Court in Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd., 2004 ACJ 934 laying down this mandatory condition. I have heard the learned counsel for the parties. I find from the pleadings that the income of the deceased has been pleaded as Rs.6000/- per month, that is Rs.72,000/- per annum. In this view of the matter, petition under Section 163-A of the Act was not maintainable. Having accepted this statutory plea, the claimants cannot be left in the lurch. I find that the petition was instituted on 28.6.2004. The accident - 3 - took place on 8.5.2004. The claim petition was disposed of on 28.10.2005 and this appeal is being disposed of on 31.8.2009. Both the parties have gone to trial and led evidence in support of their contentions. The witnesses have been examined and cross examined on each material particular. It is unfortunate that the Insurance Company never pleaded that the petition was not maintainable under the provisions of law so relied upon and once the award which has been made raises the plea of bar of maintenance of the petition under Section 163-A. The case is remanded to the learned Motor Accident Claims Tribunal, (Fast Track Court), Hamirpur, who shall decide the case as having been instituted under Section 166 of the Act. The evidence already being on record, no other or further evidence will be allowed to be led by the parties, since the evidence of the parties with reference to the accident, negligence and quantum of compensation etc. has already been adduced on the record. The learned Motor Accident Claims Tribunal shall decide the case within two - 4 - months from the date when it receives the record. Parties shall appear before the learned District Judge on 12.10.2009, who shall thereafter assign the case to the appropriate Court for disposal in accordance with law. It is also directed that no undue adjournments shall be granted to any party and the case shall be disposed of before 31.12.2009. The appeal is disposed of. All pending applications shall stand disposed of. There shall be no order as to costs. August 31, 2009 (PC). (Dev Darshan Sud), J.