R.s viv- ^•^:^ _.^^.-^^-v- IN THE HIGH COURT QF^UDICATURE AT BILASPUR (C.G.) MiscellaneousADpeaKONo.p'nf /2008 DivisioiiBg.odi- APPELLANT INSURER RESPQNDENTNoJ CkAIMANT RE^PONDENT No.2 (0\^ner % ."^..- -^•^ by £hri -^"< ^T'^ The Oriental Insurance Co. Limited, its Divisional Manager, Division Office, Bilaspur Versus 1.^- Tiharu, S/o Bilchand Pandey, aged about 45 years , Occupation - driver, resident of village Mouli, Singarpur, Police Station Bhatapara, District Raipur, presently at Bus Stand, Mungeli, DistrictBilaspur. ^_^.M/s Rainbolw Travels Bhatapara, c/o Anuram, S/o Suresh Chandra Shukla, aged about 46 years, owner of Rainbow Travels Bus No. C.G. 04 ZA 0434, resident of Ravi Nagar, Shukla Colony, P.S. Civil Lines, Raipur. APPEAL U/S 173 OF THE^MOTOR VEHICLES ACT AGAIN§T THE AWARD/ORDER DATED-r3.10,2PQ7 PASSED BY THE 'TffDDlTIONAL MOTOR .ACCIDENTS CLAIMS TRIBUNAL. MUNGELI IN C.T:N0.7^/2006 PRESIDED OVERBY SHRI N.K.S.THAKUR n ,^3"^ HIGH COURT QF CHHATTISGARH, BILASPUR DB: Hon'ble I. M. QUDDUSI & Hon»bleG. MINHAJUDDIN, JJ APPELLANT: RESPONDENTS: M.AfCl No. 1055/2008 The Oriental Insuraace Co. Ltd. Vs. Tiharu and aD.pth.er MISC. APPBALUNDBRSECTION 173 OFTHE MOTOR VEHICLES ACT.1988 Appearance: Mr, Ghaiishyaai Patel, counsel for fhe appeUant, Mr. A, S. Siagraul, counsel for respondent no. 1, Mr. Raja Sharma, counsel for respoudentno,2, ORAL ORDER (24.08.2011) Per I.M. OUDDUSI. J, This appeal has been filed by fhe Insuraace Compaay against the iinpugned awai'd dated 31.10.2007 passed by fhe Additional Motor Accident Clamis Tribunal, MungeU Distt. Bilaspur (C.G) ia Claim Case No.74/2006. Brief facts of fhe case as per fh.e version of fhe clamiaats are fhat on 11.6.2006 ttie claimaiit iajured was drivin^g the Bus bearing Regn.No.C.G,04-ZA/0434 from MungeU to Bhatapara. Ou fhe way near vUlage Chakapenda, a school student along- witlt piUion rider on his bicycle was coimng in. front fhe Bus and they fell down on fh.e road aad ia order to save tlieia, the driver lost fhe control aad took fhe bus on fhe extreme end, due to which, string leaf was broken aad tiie Bus had overtumed, as a result of which, fhe claimLaiit sustamed mzUtiple fractures on his left haad aad ultimately durmg fhe treatment on 12.9.2006 his left haad was amputated causmg 100% disabUity. At the time of accident, the deceased was earamg Rs. 175-200/- per day aad was getting daily aUowaace .;f^'^ i j ;l ... J^- (ty7 6. of Rs.40/-. The clamiaat has filed appUcation u/s 163-A of fhe Motor Vehicles Act for fhe award of total conipensation of Rs.20,55,000/- on various heads. The leamed Claims Tribunal haviag regard to fhe facts situation has held that at tih.e time when the claimaat was driviag fhe Bus No.C.G,04-Z.A/0434, suddenly a cycle driven by a student witli piUion rider caoie ia front of fhe Bus and fhey fell down aad in. fhe process of saviag those twro students, fhe Bus had beconie nncontrolled aad overturaed, as a result of which, fh.e claunartt was pressed in fhe Bus; consequenUy his left haad was badly crushed aad he becaoie peniiaiienUy disabled aad fhere was no negligence on fhe part of fhe claiaiaat. Haviag fhus held, ihe Tribunal has awarded a total compensation of Rs,5,00,000/- which the clabiiaat is entiUed to receive froin the non-appMcants joiatly aad severally. We have heard learaed counsel for fhe parties aad have also gone through fhe records of the Tribunal, In the claun petition itself fhe clabiiaiit has inentioued fhe daily iacoine ofthe deceased as Rs, 175-200/- plus Rs.40/- as daily aUowaace aad as such fhe aanual uiconie of fhe claimaat exceeds the outer Uinit of Rs.40,000/- JSxed in tlie Second Schedule appended to ftie Motor Vehicles Act, 1988, therefore, ftiis claim petition filed u/s 163-A ofthe Act is not Biauitaiaable, In Deepal Qirtshbai Soni -vs- United India Insurance Company Ltd., Barod (2004) S SCC 385, a tiirce Judge Bench of Hon'ble fhe Supreiae Court while rcviewiag the decision of two Judge Bench ia case of Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodcda & others (2001) 5 SCC 175 held as under: (<67. We, fherefore, are of fhe opinion fhat Kodala has correcUy been decided. However, we do not agree wifh the fmdmgs ia Kodala that if a person uivokes provisions of section 163-A, fhe aanual inconie of Rs,40,000/- per aanuia shall be ,.^J.^t^ ^ -J// treated as a cap, In our opiaion, the proceediag u/s 163-A bemg social seciirity provision, providmg for a distinct scheme, only those whose aanual irtcoine is upto Rs.40,000/- caa take fhe benefit fhereof. AU ofher claims are required to be determined m terms of Chapter XII of fhe Act.w 07. In view of ttie above discussion, we are of fhe view ttiat fhe claim petition filed u/s 163-A ofthe MVA is not mamtainable. Heuce, we allow this appeal and set aside fhe impugned awai'd dated 31.10.2007, However, fhis wiU not debar fhe claunaat to file a fresh claiai petition under section 166 ofthe MVA or to prefer aa appUcation under fhe provisions of Workmen's Corapensatiou Act, as fhe case iiiay be. If he prefers to file an appUcation under workmen's Compensation Act, for that purpose, it is to be noted titiat fhe date of accident was 11,6.2006 aud fhe clami petition was filed on 7.9.2006 which was disposed of on 31.10.2007 aUowing the claioi aad fhis appeal was filed 011 15,4.2008 aad is beiag disposed of today i.e., 24,08,2011 but sm.ee fh.is Court has held that the claiin u/s 163-A was not m.amtamable, option has been given to the clatmaat to file a niain.tainable claim petltlou. 08. The amount, if aay, deposited by fhe Insuraace Company shaU be allowed to be wifhdrawn. 09. In the result fhe appeal is allowed, No order as to qost(s). Sd/- LlM.Quddusi Judge Sd/- G. Minhajuddin Judge Rao