IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No: 410 of 2002 Judgment reserved on: 22.4.2008 Date of decision: May 8, 2008 Sukhwant Kaur and others ..Appellants Versus Sher Singh and another ..Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Petitioners: Mr.Ajay Sharma, Advocate For the Respondents: Mr.G.D.Verma, Senior Advoctae, with Mr. Romesh Verma, Advocate Deepak Gupta, J. The claimants are the widow and children of deceased Mohinder Singh. They had filed a petition under Sections 140, 163-A and 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) claiming compensation from Sher Singh, owner of the tractor and Oriental Insurance Company, with whom the tractor was insured. According to the claimants, the deceased, Mohinder Singh was an agriculturist and driver and was 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 driving the tractor which met with an accident due to failure of brakes. The Insurance Company contested the petition and alleged that the petition is collusive. The owner of the tractor admitted all the averments made in the claim petition and stated that he had purchased a new tractor and they were all gong to Baba Bardbhag Singh to pay obeisance when the tractor fell down and accident occurred due to the negligence of the driver himself. This claim petition was in fact treated to be a petition under Sections 140 and 166 and not under Section 163-A of the Act. Neither the learned Tribunal nor any of the counsel treated this petition to be one under Section 163-A of the Act. The learned Tribunal rejected the claim petition by holding that the petitioner has failed to prove the negligence of any party. The present appeal was filed. This appeal was taken up for hearing by the then Hon’ble the Chief Justice who dismissed the appeal vide judgment dated 9th August, 2006 and upheld the award of the learned Tribunal by holding that even under Section 163-A of the Act the petitioner was not entitled to any compensation. Review petition No. 46 of 2004 was filed and the same was allowed in view of the Division Bench 3 judgment of this court rendered in Smt. Kokla Devi Vs. Chet Ram and another reported in 2002 (1) Shim. L.C. 204. While allowing the review petition the Chief Justice directed that keeping in view the question of law involved, the matter be heard by a Division Bench. In our considered view Section 163-A of the Act is not at all applicable to the facts of this case. In fact the petition under Section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs. 40,000/- per annum. The Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd., Baroda, (2004) 5, SCC 385 has clearly laid down that where the income of the deceased-victim is more than Rs. 40,000/- per annum, the claimants are not entitled to file a petition under Section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:- “51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the 4 said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs.40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society. 52-66. x x x x x x x x x x x x x x x x x 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.” Therefore, the petition under Section 163-A of the Act was not maintainable. Since trial has taken place, issues were framed, evidence led and no party raised any objection before the learned Tribunal, we proceed to treat this petition under Section 166 of the Act. As observed by us above, this petition cannot be treated to be a petition under Section 163-A of the Act. Under Section 166 of the Act it is incumbent upon the claimant to prove the negligence of some other person. In the present case though the allegation was made that the accident occurred due to failure of brakes, no evidence was led to show how the accident occurred. The Apex Court in Oriental Insurance Company Ltd. Vs. Meena 5 Variyal and others 2007 (5) SCC 428 has held as follows:- “26. Learned counsel for the respondent contended that there was no obligation on the claimant to prove negligence on the part of the driver. Learned counsel relied on Gujarat SRTC Vs. Ramanbhai Prabhatbhai in support. In that decision, this Court clarified that the observations in Minu B. Mehta case are in the nature of obiter dicta. But, this Court only proceeded to notice that departures had been made from the law of strict liability and the Fatal Accidents Act by introduction of Chapter VII-A of the 1939 Act and the introduction of Section 92-A providing for compensation and the expansion of the provision as to who could make a claim, noticing that the application under Section 110-A of the Act had to be made on behalf of or for the benefit of all the legal representatives of the deceased. This court has not stated that on a claim based on negligence there is no obligation to establish negligence. This court was dealing with no-fault liability and the departure made from the Fatal Accidents Act and the theory of strict liability in the scheme of the Act of 1939 as amended. This Court did not have the occasion to construe a provision like Section 163-A of the Act of 1988 providing for compensation without proof of negligence in contradistinction to Section 166 of the Act. We may notice that Minu B. Mehta case was 6 decided by three learned Judges and the Gujarat SRTC case was decided only by two learned Judges. An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this court. But as far as this court is concerned, though not binding, it does have clear persuasive authority. On a careful understanding of the decision in Gujarat SRTC we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of Sections 166 and 163-A of the Act of 1988, we are persuaded to think that the so-called obiter observations in Minu B. Mehta case govern a claim under Section 166 of the Act and they are inapplicable only when a claim is made under Section 163-A of the Act. Obviously, it is for the claimant to choose under which provision he should approach the Tribunal and if he chooses to approach the Tribunal under Section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta case should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta case deserve to be ignored.” Since negligence has not been proved there is no merit in the claim petition. The learned tribunal 7 has rightly only awarded a sum of Rs. 50,000/- under no fault liability. The appeal is without any merit and is accordingly dismissed. No costs. ( Deepak Gupta ), J. May 8, 2008(K) ( Rajiv Sharma ), J.