ce ^ INTHEJiOtTBLE HIGH COURTOF CHHATTISGARH ATLBU.ASPUR M.A.(C)No.- ^-75 <20192^ii n;.^;, APPELLANT iL?.- /y^"A syy-s" <^»-^^. oav6&-""' ^tHE ORIENTAL INSURANCE COMPANY LTD., MAIN ROAD, JAGDALPUR BASTAR (C.G.) Vrs, /RESPONDENT/CLAIMANT: -"" \^ JASPAL SINGH S/0 JOGENDRA SINGH, AGE ABOUT 38 YEARS, RESIDENT- RAUTPARA, JAGDALPUR DISTRICT- BASTAR (C.G.) ^RESPONDENT/NON-APPLICANT:- 2.^ PARMANAND SHUKLA S/0 RAMCHANDRA SHUKLA, RESIDENT- SHANTINAGAR, KUSHWAHA BHAWAN, JAGDALPUR, DISTRICT-BASTAR, JAGDALPUR W'' APPEAL UNDER SECTION 173 OP MOTOR VEHICLE ACT 1988 HI6H COURT OF CHHATTIS6ARH AJ BILASPUR iE HON'BLE MR. I.M.QUDDUSI <S .273 OF 2011 The Orienta! Insurance Company Limited. iNTS : Jaspal Singh A another. Shri Sudhir Agarwal, counsel for the appellant. None for the respondents though served. ith (2QTn October. 2011) LJ^ 1. Even in the sscond call none appeared on behalf of the "espondents and therefore we have no other option except to proceed ex-parte against the respondents. 2. Heard on I.A. No.l, application for condonation of delay in preferring this dppeal o.s the same has been preferred with a delay of 165 days. 3. Considering the reasons assigned in the application for condonation of deloy, we are of the opinion that the appellant has been able to satisfactorily explain edch day's delay in filing the instant appeal. Accordingly, the application CL.A. No.l) is allowed and the delay in preferring this appeal is condoned. 4. The appeltant-Insurance Company has preferred this appeal against the award dated 27.11.2009 passed in Claim Case No.209/09 by the learned 3rd Additional Motor Accident Claims Tribunal, Bastar at Jagdalpur (C6) (for short 'the Claims Tribunal') partiy allowing claim application of the claimant. 5. Facts of the case, in brief, are that the injured-claimant filed a claim petition before the Claims Tribunal under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation to the tune of Rs.20,12,000/- for the permanent disabtiity sustained by him in the accident, which took place on 12.2.2007, when the driver of truck bearing registration 1 l5-!"a § 1^' Y 'y ^^^ 2 No.CS17/Z&/0936, lost control over it due to bursting of -lyre and hit 1+ie said truck against the tree. The claimant has claimed compenscttion on l+ie ground that in the said accident he has suffered ioss of earning cqsacity. 6. The learned Claims Tribunal, after considering the issues framed by it, awarded compensation of Rs.4,72,911/- along with interest @ 6% per annum from the date of the application. 7. Placing r'eliance on the judgment of the Hon'ble Supreme Court in the matter of Despal ©rishbhai Soni and others Vs. United India Insurance Co. Ltd., Barodo reported in (2004) 5 SCC 385 learned counsel for the appellant has submitted that the appfication filed by tiie claimant before the Claims Tribunal under Section 163-A of the Act was not maintainabie at all as the income of inured-claimant was more than Rs.40,000/-. 8. We have heard learned counsei for the appellant and perused the records of the Claims Tribunal as also the findings given in the impugned award. 9. In the matter of Deepai Sirishbhai Soni (supra) in refer-ence to the Division Sench of the Hon'ble Supreme Court regarding correctness of a two-Judge Bench decision in the matter of Oriental Insurance Co. Ltd. Vs. 1-iansrajbhoi Vs. Kodala reported in (2001) S SCC 179. the 1+iree Judges Bench of the Hon'ble Supreme Court has held as under:- "67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not Qgree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000 per annum 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 henefit thereof. All other claims are required to l>e determined in terms of Chapter XII of the Act." 10.In the instant case, in Para-11 of the impugned award itself it has been mentioned that the chimant has stated that his monthly salary was Rs.4000/-, however, the truck owner has stated that his salary was Rs.3500/- per month and he used to give him Rs.100/- per day in case the injured ciaimant is out of station in connection with his work. Anyhow, C9 t-y ,Tf--'T ^ according to the calculation of the Claims Tribunal, annual income of the injured comes to Rs.48,000/- and based on which the amount of compensation has been assessed. But, even if the monthly income of the injured claimant is taken as Rs.3,500/- then also it exceeds the moximum limit prescribed under the Act, 1988 to file claim application under- Section 163A, that is to say, annual income of Rs.40,000/-. In view of the admitted fact that annual income of the deceased was more than Rs.40.000/-, we feel that claim application of the claimant under Section 163-A of the Act should have been dismissed by the Claims Tribunal as not maintainable. 11. In the result, we allow i+iis oppeal-cnd set aside the impu9nsd award holding that the claim petitlon under Section 163-A of the Act was not maintainable. However, this will not debar the injured claimant to approach the Commissioner under the Workmen's Compensation, 1923 or to take o1+ier recourse of law. In co.ae the claimant prefers to file a claim petition before the Commissioner under- the Workmen's Compensation, 1923, it is to be noticed that this appeal was filed on 09.08.2010 and the same has been disposed of on 20.10.2011 i.e. today, holding that the claim application itself was not maintainable. This fact is mentioned with a view that the Commissioner may take note of it while entertaining the claim petition 12.It is directed that the amount, which has already been deposited by the cppellant-Insurance Company and yet not disbursed to the claimant, shall be refunded to the flppellant-Insurance Company. h'owever, if the amount is disbursed to the claimant, it will be open for the appellant to recover the same from the owner of the vehicle-in-question as it is not in dispute that the claimant was his employee. Roshan/- 13. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge