-im IN THE HI6H COURT OF CHHATTE^ARH AT BILASPUR Oivssion B©RcA M.A. rCVNO. 131 /2010 fb.B.) APPELLANTS (Claimant) ^.>^ ^5:^^ ..--'<^ •-"yt ^ ^-A' l^ Santoshi Khunte, Wd/o Late Sampat, aged about 26 years. Vandana, b/o Late Sampat, aged about 8 years. Minor Guardian. through Mother Smt. Santoshi Khunte, Resident of Village and Post Sithra, Tahsil <& Distt. Korba (C.G.) Tehsil & P.S. Dharamjaigarh. at present Manikpur. 3^ Kajla. D/o Late Sampat, aged about 7 years, Minor Guardian, through Mother Smt. Santoshi Khunte, Resident of Village and Post Sithra, Tahsil <& Distt. Korba (C.G.) Tehsil & P.S. Dharamjaigarh, at present Manikpur. Distt. Korba (C.G.) ^ RESPONbENTS fNon-ADDJicant') Aakanksha, D/o Late Sampat, aged about 4 years, Minor Guardian, through Mother Smt. Santoshi Khunte, Resident of Village and Post Sithra, Tahsil & Distt. Korba (C.G.) Tehsil and P.S. bharamjaigarh, at present Manikpur. VERSUS : >.fi Smt. Kanwaljeet Kaur, W/o Shri Jagjeet Singh, aged about 36 yers, Caste, Sindhi, R/o MIG-11/44. R.P. Nagar, Korba, Tahsil & bistt. Korba (C.6.) (Owner of the vehicle) 2.^The New India Insurance Company Lmited, through Branch Manager, The New India Insurance Company Limited, Sada Complex, T.P. Nagar, Korba, Tahsil <& Distt. Korba (C.G.) (Insurance Company) \^f^ MISCELLANEOUS APPEAL U/S 173 OF THE MOTOR VEHICLEACT. ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.tC) No. 991 of 2010 €.. APPELLANT RESPONDENTS Santoshi Khunte and others. Versus Smt. Kanwaljeet Kaur and another. DB:- HON'BLE SHRI N.K. AGARWAL HON»BLESHRI R.L.JHANWAR, JJ PRESENT:- Shri A. S. Rajput, Advocate for the appellants. Shri Sudhir Agrawal, Advocate for respondent No.2. ORAL ORDER (29.10.2010) Per N.K. Aearwal, J. Heard finally. 2. This is claimants' appeal against rejection of the claim case vide award dated 12.08.2010 passed in Claim Case No.74/2009 by Motor Accidents Claims Triburial, Korba. 3. Brieffacts, in a nutshell, are that on 14.6.2009 the deceased Sampath was driving the vehicle bearing No. C.G.04 JA/3496 loaded with coal and was cpming to^Bilaspur, on way at village Banahill in front of house of Suresh Kewat, due to failure of break pipe, the said vehicle was uncontrolled and hit the stationed truck No. C.G.12 C/1703 (for short 'the Truck'), as a result ofwhich, the driver of the truck got injuries as also Sampath sustained injuries due to mechanical failure and resultantly uncontrolled of the vehicle. UItimately, Sampath succumbed to the injuries. 4. The. claimants, being legal representatives of the deceased, have preferred a claim petition under Section 163A of the Motor Vehicles Act claiming compensation of Rs.30,28,800/- along with '-^. •'•: ^. interest 18% per annum from the date of claim petition till realization from the owner as well as insurer ofthe vehicle. 5. The learned Claims Tribunal holding fhat the deceased - Sampath himselfwas responsible for the accident as he was driving the said vehicle in a rash and negligent manner dismissed the claim petition. 6. Shri Anil Singh Rajput, learned counsel appearing for the appellants would submit that since the claim petition has been filed under Section 163A of the Motor Vehicles Act, the learned Claims Tribunal has seriously erred in dismissing the petition on the ground that the deceased himselfwas negligent. 7. On the other hand, Shri Sudhir Agrawal, learned counsel appearing for the insurance company/respondent No.2 supported the impugned award and would submit that since the deceased himselfwas negligent, therefore, the claim petition preferred by the legal representatives of the deceased was not tenable and the learned Claims Tribuhal has nghtly dismissed the petition. 8. We have heard the learned counsel for the appellant and perused the order impugned and record ofthe Claims Tribunal. 9. The short question that arose for decision making in the instant appeal is that whether the claim petition filed under Section 163A of the Motor Vehicles Act is maintainable in case the deceased himselfwas negUgent in driving the vehicle. 10. Section 163A of the M.V.Act reads as under: 163A. Special proyisipns ^as tp payment of compensation on structured formula basis.—(l) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the autorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as . 4ndicated.in. th.e.8ecQi^cl^cliedy^^^ legal heirs or the victim, as the case may be. Explanation.—Porthe .purpose of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's CompensationAct, 1923 (8 of 1923). (2) In any claim for compensation undersub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect ofwhich the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. The above provision makes it crystal clear that in a case wherein the victim diedc\or where he was permanently disabled due to the accident arising out ofthe aforesaid motbr vehicle in that event the liability to make payment of the compensation is on the Insurance Company or the owner, as the case may be as provided under Section 163-A ofthe Act. ..:,»<....,<•.:.> <^^t.»i,v'.r-t.,Ai-<< ;.»>'</. -... s. ....:....;. ^.;.'.;..' 11. The above provision has also been analysed by the Supreme Court in the case of Deepal Girishbhai Soni -v' United India Insurance Co. Ltd. reported in 2004(5) SCC 385, wherein it was held as under: "42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163-A ofthe Act readwith the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his inconiebut also the other factors relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals '^^^' 4 with fatal accidents makes the position furthermore clear stating that from the total amount of corapensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in column Nos. 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out ofuse of a motor vehicle. 66. We may notice that Section 167 ofthe Act.provides that where death cf, fyr bodi\y .injury to, any person gives rise to claim of compensation under theAct and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or ptherwise". In Section 163-A, the expressioh" "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any pther law for fhe time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept ofsocial justice has been duly taken care of." 12. The Division Bench of this Court also held in M.A.C. No. 362/2010 & M.A.C.'Nb. '363/2010i passed on 04. 10.2010 fhat the petition ynder Section 163-A pf the Act is maintainable even if the negligence is on the part of the victim. ^ "^. '^ <: s 13. In view of the above law laid down by the Hon'ble Supreme Courtas also by this Court, it is held that even if the deceased himselfwas negligent in driving the vehicle, the claim filed by the legal represenfatives of the deceased under Section 163A of the M.V.Act is mamtainable and the finding recorded by the Claims Tribunal is not sustainable under law and it deservres to be dismissed. 14. For the foregoing reasons, the appeal preferred by the appellants deser^es to be and is accordingly allowed. The award impugned passed by the learned Claims Tribunal is set aside and the matter is remitted to the concerned Claims Tribunal to decide the case afresh in the light of above obser^ation, with Uberty to the parties to adduce additional evidence and to amend the pleadings, ^l -..-^..- - .,•.., .,, . . ....... if necessary, and to argue their case. The parties shall appear before the Claims Tribunal on 29th November, 2010. 15. The Tribunal shall decide the matter expeditiously. 16. The records of the Claims Tribunal shall be sent back forthwith. Sd/- N.K. Agrawal Judge Sd/- R.L. Jhanwar Judge