|G^! R^A IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISCELLANEOUS APPEAL (C) N0. 2)04 OF 2011 fl;'^f^^ ;'""^';;""^i?^ t iy5!i ^w^ < £^g ^^ 1 }) u:^ k- APPELLANT R^SPONDENT N0. 2 \\\ ^^ ^ -•'^^••"^'..... A'tfi"-" ^'"" :"^ ^*--;? RESPONDENTS CLAIMANTS }\ ^IFFCO Tokio General Insurance Co. € Limited, 3rd Floor, Shop No. 345-347 Ganga Shopping, Near Mata, G.E. Road, Raipur, Tehsil & District Raipur, Chhattisgarh VERSUS ^- ^. ^" 4. > Smt. Anita, wife of Late Shri Suresh Kumar, aged about 25 years . Boby @ Faguram, son of Late Shri Suresh Kumar, aged about 07 years ^ Kumari Babita,;;£laughter of Late Shri Suresh Kumar, aged about 05 years Kumari Sangeeta, daughter of Late Suresh Kumar, aged about 03 years Respondent No. 2 and 4 being minors are represented through their mother Smt. Anita, wife of Late Shri Suresh Kumar Nandlal, son of Sevaram, aged about 45 years Aagnati Bai, wife of Nandlal, aged about O years All residerits of Village Lagra, Tehsil & District Bilaspur, Chhattisgarh Naklu Kewat, son of Shri Bisahu Ram Kewat, aged about 30 years, resident of Panthi, Thana Seepat, Tehsil & District Bilaspur, Chhattisgarh ' . [OWNER] , ^\ ^' MEMORANDUM OF APPEAL UNDER SECTION 173/OF THE MOTOR VEHICLESACT1988 \^" ADpeaI valued at Rs. 3,92,072/^Three Lakhs Ninetv Two Thousand and SeventyTwo Only) HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (Ct N0. 304 OF 2011 ^ APPBLLANT/ RE8PONDENT N0.2 RE8PONDBNTS/ CLAIMANTS IFFCO Tokio General InsuraaLce Co. Limited. Vs Siat. Anita aad ofhers. APP^AL UNDBR SECTION 173 OF THB MOTOR VBHICLBS ACT. 1988 Division Bench: Hon(ble 8hri I.M. Quddusi fis Hon*ble Shri G. Minhaiaddia. JJ. Presentf Shri Amrito Das, counsel for fh.e appeUaat. Shri Akhtar Hussam, counsel for respondents No. 1 to 6. * Shri Shivendu Paadya, counset for respondent no. 7. ORAL ORDER (Passed on 28th day ofJune, 2011) Per I.M. Ouddusi, J. Heard. 2. This appeal has been filed by the appeUant/Insuraace Compaiiy agamst the impugned award dated 30-11-2010 passed by the IX Additional Motor Accident Claims Tribxiaal, BUaspur (for short 'the Claims Tribunal') ia Claim Case No.04/2010 awardiag Rs.3,92,072/- as compensation. 3. Brief facts of fhe case, as projected by the claimants are fhat deceased Suresh Kuraar was ao. eniployee of respondent No,7 (Naklu Kewat). On 27-04-2009 under the iastmctions of his 1 employer deceased Suresh Kumar was gowg firom viUage Pandhi to Bilaspixr by driving Motor Cycle (Bajaj Pulsar) bearing registration No. C.G. 10/EF - S232 belonged to respondent no,7. On the way at about 11-00 A,M,, when he was driving fhe ^ said motorcycle, he tried save one cyclist aad ia. fhat process fhe said motorcycle becanie uncontrolled aad sta-uck agaiast the wall of a house, as a result of which, deceased Siiresh Kumar sustaiaed head mjuiy aad died. At fhe time of accident, tfae deceased was aged about 27 years aad was earaing Rs.3000/- per uionfh plus allowaace Rs.50/- per day. The claunaats beiag legal heirs of fhe deceased had filed a petition under Section , 163-A ofthe Motor Vehicles Act (for short 'the Act, l988)) before fhe Clabns Tribunal for fhe award of total coinpensation of Rs.28,75,000/- on various heads. Cearaed Claims Tribiinal haviag regard to the facts situation aad evidence on record, held tbat wlien fhe deceased was driving fhe motorcycle of respondent no.7 met wifh accident, as a result ofwliich, he died; during the course ofemployment and on fhe iastructions of respondent no,7, he drove the niotor- vehicle aad fhere was no breach of poHcy conditions by the owner/respondent no.7. Thus haviag held, it has awarded a total coinpensation of Rs,3,92,072/- along wifh iaterest @ 6% per aantuii frora fhe date ofappUcaticm. Learaed counsel for fhe appellaat submits fhiat fhe deceased was not haviag vaUd aad eflTective driviag Uceuse at fhe tune of accident, fhereforc, fhere was breach of poHcy conditions. He furfher submits that fhe clami petition u/s 163-A of the MVA was not miaintaiEiable as fhe aanual iacoiae of fhe deceased was more fhan Rs.40,000/- as fixed in the S^cond Schedule offhie ^ / Motor Vehicles Act, ^^n^^, ^ .,-.-—.^'''•^' ^--""•-% "'^ ^ M ^ %s' '^,. 11^^ i1 t ^. '^ / ^,i^^f ^, 6. We have heard learaed counsel for the parties aad have also perused fhe records aad findiags of fhe Tnbiinal. We have found that iaitiatly fhte iaconie of titie deceased ia tihie claiai petition was nientioned asRs,5000/- per raonth and Rs.50/- as daily aUowaace but fhereafter, by way of amendnient fhe monfhly mcome was amended as Rs.3000/ - per month aad the daily aUowaace as Rs.30/- per day. Thus there are contradictions m fhe claim petition. Even tiien, ifthe monthly salary is taken as Rs.3000/- per nionth aad daUy aUowaace as Rs.30/- per day, fhe total iacpine coines to Rs.3900/- per inonth aad Rs.46,800/- per annuin which exceeds the laaxiiniiin liniit of Rs.40,000/ -. We are of the opiaion that siace the clami petition was filed u/s 163-X offhe Motor Vehicles Act showiag fhe iacomLe niore fhan the raaximuui Ibnit i.e., Rs,40,000/- prescnbed ia fhe Second Schedule of fhe Motor Vehicles Act, 1988, fhe claiin petition was not inabitainable. However, fhe Tribunal has awarded fhe compensation treatmg fhe uionfhly iaconie of fhe deceased as Rs.2500/- aad fhe yeariy iD.coine as Rs,30,000/~. 7. Furfher a perusal of ffcte written statement filed by the owner of fhe motor-vehicle i.e, respondent no.7 herem, shows fhat the owner has admitted fhe version of the claimaats fhat the deceased was his einployee and on ftie date of accident he deputed him to purchase spare parts oftiae Tractor at Bttaspur aad gave his inotorcycle to fhe deceased for the said piirpose. / 8. Hon^ble fhe Supreme Court m Orlental Jnsurcince Ca.LtcL Vs. Hemsrafbhai V. Kodala and ofhcrs, (W01) 5 SCC 175 has ^ "•^.\ 1 ^.! ^ -\ . '":; /7 ^^i^^fy ^. held ia para 15 fhat "However tiiis benefit caa. be availed of by fhe clahnaat only by restnctuig his claun on the basis of iocoine at a slab of Rs.40,000/- which is fhe highest slab ia fhe second schedule which iadicates that titie legislature wanted to give benefit of no-fault UabiUty to a certaia limit This would clearly iadicate fhat the Scheme is m alteraative to fhe determmation of coinpensation on fault basis under fhe Act.w However, disagreeing with fhe said proposition, a three judge bench of Honyble Supreme Coiirt in^ Deepal Qirishbhcd Soni and offacrs ys. United Jindia Insur<mcc Co. 2/fd., Baroda (2004) S SCC 3BS held ia paragraph 67 as under: "67. We, fherefore, are offhe opiaion fhat Kodala has correcUy been decided, However, we do not agree with fhe findmgs in Kodala that if a person iavokes provisions of Section 163-A, fhe annual inconie of Rs.40,000/- per annuin shall be treated as a cap. In our opmion, the proceediags under Section 163-A being a social security provision, providiag for distiact scheine, only those whose aanual income is upto Rs,40,000/- caa take fhe benefit fhereof. AU offaer clauns are required to be determined in tenns of Chapter XII offhe Act" 09. In view of fhe above, fhe claim petition u/s 163-A where fhe iacoine of ftie deceased was shown as inore fhan Rs.40,000/-- was not mamtamable. Therefore, the impugned award ia favour of fhe claimants is Uable to be set aside holdiag fhat fhe claim petition was not maintainable. Hence, the instqiit appeal is allowed, The impugned award dated 30.11.2010 is set aside aad it is held fhat fhe clami petition u/ s A63-A of the Act, 1988 was not inaiatauiable at all. ^ :^ ^\4 I ^&- 1 /^: ^'< 10. 11. 12. At fhis stage, learaed counsel for fhe claiinaats submitted fhat fhe liberty xnay be given to the claitnaats to file claioi petition iinder aiiy ofher pxovisions of law where fhe claim. petition is niaiatainable Uke u/s 166 of fhe Act, 1988 or under the Workoien's Compensation Act, We are of fhe opiaion that initially since fhe claim petition u/s 163-A of fhe Act, 1988 was not inaiiitauiable, it is open to fhe claunaaits to file anofher claun petition u/ s 166 of fhe Act, 1988, which is iiiamtamable. However, ia fhe alteraative, since fhe deceased was aa einployee of fhe owner of fhe vehicle, it is open for fhe clamiaats to j51e a claiai petition before the Commissioner, under fhe Workinen's Coinpensation Act also. For ffctat purpose it is necessary to mention that the claioi petition before the M.A.C.T., which was not inaiatamable, was filed on 07,09.2009 ia which proceednigs were initiated aad fhe saoie was decided by miaking aa award on 30.11,2010. Therefore, fhe iastaat appeal was filed on 08.03.2011, If fhe clami petition before the Coimnissioner for Workmen's Conipensation is filed, fhe Comiaissioner inay take the above facts mto consideration whUe decidmg the appUcation for condonation ofdelay, ifaay, The amount which has been deposited by fhe appeUant shall be allowed to be wiftidrawn by it, if not akeady disbursed, but if fhie sanie has been disbursed and a firesh claini petition is filed, fhe aniount shall be subject to decision of tiiat claim. petition. No order as to costs. ^—-^ Kvr/ Rao/ PuraD. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge