ash 1 fa-546.98-4-7-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.546 OF 1998 Oriental Insurance Company Ltd. .. Appellant Vs Pahilajrai Bhojraj Navlani & Others. .. Respondents -- Smt. Anita A. Agarwal for the Appellant. Shri Sanjeev P. Kadam i/by Shri Jagdish Chaudhari for the Respondents. -- CORAM ; A.S. OKA, J DATED : 4TH JULY, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Appellant and the learned counsel appearing for the Respondent Nos.1 to 5. The impugned judgment and award has been made in a claim petition filed by the 1st to 5th Respondents by invoking Section 163A of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act”). The Claims Tribunal has passed an award in the sum of Rs.4,53,334/- along with interest at the rate of 12% per annum. 2. Learned counsel appearing for the Appellant which is the insurer of the offending vehicle submitted that the claim petition under Section 163A of the said Act was not maintainable inasmuch as even according to the case of the original claimants, the salary of the ash 2 fa-546.98-4-7-11 deceased was Rs.4,000/- per month and in addition, he was receiving incentive of Rs.1,000/- per month. Her submission is that admittedly the income of the deceased was exceeding Rs.40,000/- per annum. She has placed reliance on a decision of the Apex Court in the case of Deepal Girishbhai Soni & Others vs. United India Insurance Company Limited, Baroda, [(2004)5 SCC 385]. Learned counsel also relied upon a decision of this Court in the case of New India Assurance Company Ltd. vs. Ashabai Kalyan Kothi & Others, [2008(6) Bom.C.R. 89 ]. Her submission is that in view of the law laid down by the Apex Court, the claim petition was not maintainable under Section 163A of the said Act. 3. Learned counsel appearing for the 1st to 5th Respondents relied upon certain observations made in the case of Sarla Verma (Smt.) & Others v. Delhi Transport Corporation & Another, [(2009)6 SCC 121]. He submitted that as after making 1/3rd deduction, the income of the deceased was less than Rs.40,000/- per annum, Section 163A of the said Act can be still applied. He made a reference to the decision of the Apex Court in the case of Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala, [(2001)5 SCC 175]. 4. I have carefully considered the submissions. A bench of the Three Hon’ble Judges of the Apex Court in the case of Deepal Girishbhai Soni (supra) reconsidered the view taken in the case of ash 3 fa-546.98-4-7-11 Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). In Paragraph 67 of the said decision, the Apex Court held thus:- “67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree 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 benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” ( Emphasis added ) 5. Relying upon the aforesaid decision, in the case of Ashabai Kalyan Kothi (supra), in Paragraph 11, this Court held thus:- “In a claim petition under section 166 of the said Act, the claimant is required to plead and establish negligence on the part of the driver of the offending vehicle. Section 163-A which is stated to be a social security provision was brought on the statute book which creates an exception to the requirement of section 166. Now the larger Bench of the Apex Court in the case of Deepal Soni (supra) held that the social security provision is available for a distinct class of persons whose annual income is restricted to Rs.40,000/-. Only the persons of that category can take benefit of the said social security provision which was enacted by the legislature with the specific object of providing a speedy and effective remedy to that particular class of persons. The Apex Court in the case of Kodala had taken a view that it may be possible to notionally bring down the income ash 4 fa-546.98-4-7-11 for bringing the claim within the purview of section 163-A of the said Act. However, the said decision is no longer a good law and the case of Deepal Soni settles the issue. Therefore, assuming that in the present case, claimant had notionally brought down the income to Rs.40,000/- p.a., the claim petition under section 163-A will not be maintainable. In view of the law laid down by the Apex Court, it is not possible to accept the submissions made by learned Advocate for the claimants based on decision of Full Bench of Karnataka High Court and the decisions of certain other High Courts.” ( Emphasis added ) 6. Reliance placed by the learned counsel appearing for the 1st to 5th Respondents on a decision of the Apex Court in the case of Sarla Verma (supra) will not help the said Respondents. Firstly what binds this Court is the view taken in the case of Deepal Girishbhai Soni (supra) which is a decision of a larger bench of the Apex Court. Secondly, in the case of Sarla Verma (supra), the Apex Court was not called upon to decide the issue as to whether the annual income of Rs. 40,000/- provided in Section 163A of the said Act can be treated as a cap. 6. Thus, the claim petition was not maintainable under Section 163A of the said Act in as much as the income of the deceased admittedly exceeded Rs.40,000/- per year. ash 5 fa-546.98-4-7-11 7. However, the claim petition will have to be treated as the one under Section 166 of the said Act and, therefore, by setting aside the impugned judgment and award, the claim petition will have to be remanded to the Tribunal. 8. Hence, I pass the following order:- (a) The impugned judgment and award dated 5th January, 1998 is quashed and set aside and the Motor Accident Claim Petition No.314 of 1996 is restored to the file of the concerned Tribunal. (b) The Tribunal will permit the 1st to 5th Respondents to carry out necessary amendment to the Claim Petition and by treating the said Claim Petition as the one under Section 166 of the Motor Vehicles Act, 1988, the Tribunal will proceed to decide the same expeditiously. (c) The parties are directed to appear before the Principal District Judge at Nashik on 29th August, 2011 at 11.00 a.m. only for deciding the schedule of hearing of the Claim Petition. ash 6 fa-546.98-4-7-11 (d) The hearing of the Claim Petition is expedited and the Tribunal shall make an endeavour to conclude the hearing of the Claim Petition on or before the 31st March, 2012. (e) The Appeal is partly allowed on above terms. (f) If the amount of Rs.25,000/- deposited by the Appellant is pending in this Court, the same shall be refunded to the Appellant with interest, if any, accrued thereon. (g) Civil Application No.755 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )