FAO No.2033 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. FAO No.2033 of 2007 (O&M) Date of decision: March 27, 2009 Amarjeet Singh ...Appellant Versus Ravinder Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Shiv Kumar Advocate, for the appellant. Mr. N.K. Manchanda, Advocate, for the respondent. Rajan Gupta, J. The appellant Amarjeet Singh has filed this appeal against the award of Motor Accident Claims Tribunal, Ropar. He claimed compensation to the tune of Rs.5.00 lacs alongwith interest @ 15% per annum for the injuries suffered by him in an accident on 26th May, 2005. According to the appellant, on the said date he was travelling on motorcycle from Massewal to Kiratpur Sahib. At about 8.30 P.M. when he reached near the Warehouse situated at Massewal road, stray cows suddenly emerged on the road. The appellant could not stop his motorcycle despite the fact that he applied brakes. As a result, he fell down on the road from the motorcycle and received injuries. He was rushed to a private hospital at Anandpur Sahib. According to the appellant, he remained hospitalized and incurred Rs.1.00 lac as expenses on his treatment. He claimed that his left leg was fractured in the said FAO No.2033 of 2007 2 accident. Since the motor cycle, on which the appellant was travelling, was insured with respondent No.2 and respondent No.1 was its owner, the appellant claimed compensation on account of the accident. In the claim petition filed before the Tribunal under Section 163-A of the Motor Vehicles Act (“hereinafter referred to as “the Act”), the claimant-appellant averred that he was earning Rs.8000/- per month from agriculture and dairy farming business. Due to the disability caused as a result of accident, he was entitled to compensation of Rs.5.00 lacs with interest. The claimant deposed before the court as PW1 and also examined Dr. Ravinder Nagpal as PW2. The Tribunal after examining the evidence of these two witnesses and the documents Ex.P2 to Ex.P21, returned the finding that the claimant-appellant sustained injuries while he was driving the motor cycle in question on 26th May, 2005. However, his plea for compensation was turned down on the ground that he had claimed his monthly income to be Rs.8000/- per month, which would come to Rs.96,000/- per annum. Since the claim petition had been preferred only under Section 163-A of the Act, the claim petition was not maintainable as the income had been stated to be more than Rs.40,000/- per annum. Learned counsel for the appellant has assailed the impugned award by relying the judgment of this court delivered in New India Assurance Company Ltd. vs. Jaspreet Kaur and others, 2006 (3) R.C.R. (Civil) 810. According to the counsel, in the said judgment it FAO No.2033 of 2007 3 has been laid down that even if the claimant wrongly claims his income to be more than Rs.40,000/- and the Tribunal comes to a finding that his income was less than Rs.40,000/-, the claimant would be entitled to compensation under Section 163-A of the Act. I have heard learned counsel for the parties and given careful thought to the question in controversy. It is evident that the claim petition was filed in the accident case only under Section 163-A of the Motor Vehicles Act. The appellant himself claimed his income to be Rs.8000/- per month, which would come to Rs.96,000/- per annum. The appellant deposed before the court as PW1 and tendered his evidence in the shape of affidavit wherein he stated that he was earning Rs.8000/- per month from agriculture and dairy farming business. The Tribunal thus came to the conclusion that the petition, which has been filed under Section 163-A of the Act, was not maintainable and dismissed the same. In my considered view, the judgment in Jaspreet Kaur's case (supra) relied upon by the appellant is not applicable to the facts of the present case as the said judgment was delivered because the Tribunal in the said case actually came to the finding that income of the deceased was Rs.36,000/- per annum. The Tribunal thus granted compensation to the claimant in the said case under Section 163-A of the Act considering the income to be Rs.36,000/- per annum. The said award was assailed by the insurance company before this court. It was held that once the Tribunal had arrived at a finding that the income of FAO No.2033 of 2007 4 the claimant was less than Rs.40,000/- per annum, it was competent to grant compensation under Section 163-A of the Act. However, in the instant case, no such finding has been arrived at by the Tribunal. On the other hand, the claimant-appellant himself tendered in evidence his affidavit claiming his income to be Rs.8000/- per month i.e. Rs.96,000/- per annum. Thus, the Tribunal rightly came to the conclusion that the appellant was not entitled to compensation under Section 163-A of the Act. As regards argument of the counsel for the appellant that the Tribunal could arrive at a finding that income of the appellant was less than Rs.40,000/- per annum and thereafter grant compensation under Section 163-A, the same is not tenable. If this argument of the counsel for the appellant was to be accepted, it would mean that the appellant would first seek a finding against his own pleadings and thereafter claim compensation on the basis of the same. In my considered view, the appellant cannot be allowed to approbate and reprobate. This apart, in the judgment delivered by the apex court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd., 2004 ACJ 934 (SC), it has been clearly held that a claimant cannot pursue his claim both under section 163-A as well as under section 166 of the Act. He has to opt for either of the remedies i.e. Section 163-A or Section 166 for the purpose of claiming compensation. In the said judgment, the apex court has laid down that proceedings under Section FAO No.2033 of 2007 5 163-A being a social security provision providing for a distinct scheme, only those whose annual income is upto Rs.40,000/-, can take benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act. In view of the above discussion, I find no merit in this appeal. The same is hereby dismissed with no order as to costs. (RAJAN GUPTA) JUDGE March 27, 2009 'rajpal'