1 \-^. IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) M.A.NO.^^OF2006 APPELLANT CLAIMANT Ramgulal, S/o. Gangaram, aged about 45years, Occupation- Driver, R/o Pathanpara Saodaa Chowk Road, Rajnandgaon 4C.G.) VERSUS RESPONDENTS DEFENDANT 1. Santosh Kumar , S/o. Madan Chand <- Jain R/o Pathanpara Saiidai Chowk Road , Rajnandgaon (C.G.) Vehicle Owner (Metador) 2. United India Insurance Co. Ltd. ^ C/o. Branch Office Kamthi Lain Rajanadgaoa (Insurance Company ofMetador), ^ /- 3. Guharam S/o Sukhuram Dewangan aged about 46 years R/o Kholjhar Dondilohara Dist. Durg (Owner of Tractor) 4. Bisesar Thakur , S/o. Kanhaiya Lal ?~^ Thakur aged about 30 years R/o Village- Kholjhar Dondilohara Dist. Durg , (Tractor Driver ) APPEAL UNDER SECTION-173 OF THE MOTOR VEHICLES ACT._1_988. \^ HIGH GOURT OF CHHATTISGARH : BILASPUR T M. A. No. 231 of 2006 Appellant Ramgulal Versus Respondents Santosh Kumar & others APPEAL UNDER SECJIQN 173_OFLTHEJ^[QTO_R VEHLCLES_ACT, 1988 DB: Hon'ble Shri Justice I. M. Quddusi 8s Hon'ble Shri Justice Prashant Kumar Mishra, JJ Smt. Renu Kocher, Advocate for the appellant. Shri Ghanshyam Patel, Advocate for the respondent No. 2. Shri Anand Shukla, Advocate for the respondents No. 3 85 4. ORDER (Oral) ( Passed on this 4th day of December,' 2010 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the appellant/claimant against the impugned award dated 31.12.2005, passed by the Motor Accident Claims Tribunal, Rajnandgaon in Claim Case No. 250/2002. 2. The, brief facts, in nutshell, are that the appellant/claimant had filed a claim petition on 11.9.2002, under Section 163-A read with Section 166 of the Motor Vehicles Act, 1988 for award of a total con-ipensation of Rs. 3,58,000/- on the ground that he had received grievous injuries in a motor accident on 30.4.2002. According to the claimaat on 30.4.2002 he was going to Rajnandgaon from Dondilohara by driving the vehicle i.e. Metadoor, having registration No. C.I.S. 7545, at that time near village - Acholi the vehicle met with an accident, as a result of which the claimant received grievous injuries on right hip, left thigh and got fracture in leg. Relating to this accident a criminal case was registered against the claimant in Police Station Dondilohara for the offence under Section 279 and 337 of the Indian Penal Code. The claini petition has been disnaissed by the Tribunal, inter alia, on the ground that the claim petition under Section 163-A read with Section 166 ofthe Act, 1988 was not maintainable as both the clairns could not have been filed in view of the decision of HonTale Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd., Baroda (2004) 5 S.C.C. 385. Hon'ble Apex Court in Deepal Girishbhai Soni (supra) in paragraphs 52, 57, 61, 67 and 68 has held as under : "52. It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the minds of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of fhe Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claiinant to pursue their claims both under Section 163-A and Section 166 does not arise. If the submission of the learned counsel is accepted the sarae would lead to an incongruity. 57. We, therefore, are of the opinion that the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both. 61. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example, Sections 140 and 161 in case of hit-and-run motor accident, from the amount of compensation payable under the .^V"'^!-.'' 'si"£s:. '"%, /.:{'~~~.:^ 1 ? ^ •3&-^^-1. ^....-...••sh^' award on the basis of fault liability under Section 166 of the ^, Act, the same has expressly been provided for and having regard to the fact that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under Section 163-A of the Act, it must be held that the scheme of the provisions under Sections 163-A and 166 are distinct and separate in nature. 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. 68. However, in this case, we may notice that the parties have proceeded to file two applications - one, under Section 163-A and another under Section 166 of the Act. Both have been entertained. Both the Tribunal as also the High Court have proceeded on the basis that the amount of compensation under Section 163-A is by way of an interim award and the same would not preelude the claimant to proceed with his claira made in terms of Section 166 of the Act. It is subraitted at the Bar that the appellants have withdrawn 50% of the ainount and rest of fhe amount has been invested. The appellants have lost both their parents in the accident. Only one of the appellants at the relevant time was a major. It appears that 70% of the amount permitted to be withdrawn has been deposited in fixed deposit. We agree with the submission of Mr. Banerji that the claim of the appellants made under Section 163-A be treated to be one under Section 140 of the Act and upon adjusting the amounts provided for thereunder, the appellants may refund the rest thereof to the insurer." ^' -^'.•:.•;'. 5. In the impugned award the intention of the^Tribunal was that the '^ claim petition under Section 163-A read with Section 166 of the Act, 1988 was not maintainable. 6. We have perused the order sheets of the claim petidon. The order sheet dated 14.9.2002 states that the claim under Section 163-A read with Section 166 of the Motor Vehicles Act, 1988 was admitted by the Tribunal and ordered for registration of the claim petition. At the very outset, when the claim petition was being entertained and ordered for registration, the Tribunal could have held that the same was not maintainable. In that situadon it was open to the claimant to file another claim petition either under Section 163-A or under Section 166 but that has not been donfe rather the Tribunal proceeded with the claim petition and decided it on merits by framing issues, admittedly in a claim petition, which was not maintainable. 7. At this stage learned counsel for the appellant states that even ifthe Tribunal would have given an opportunity to choose the Section in which the same was to be filed and delete another section mentioned in the claim petition, the claimant would have done it accordingly. Further, in a clairn petition which is not maintainable the claimant would not have become remediless and he could have filed a maintainable claim petition. 8. Considering the facts and circumstances of the case we allow this appeal in part and set-aside the impugned award dated 31.12.2005 and remit the matter back to the Tribunal. On the submissions of ~ l§,arned counsel for the appellant we direct that the claim petition shall be treated under Section 163-A of the Act and the claimant shall be permitted to delete another Section i.e. 166 in the claim petition. .^;,t; ^/3»< ./"& "• 9. We hereby clarify that we have not considered the case of the appellant/claimant on inerits one way or the other and the Tribunal has to decide the case on nierits after providing opportunity of hearing to fhe parties to adduce further evidence, amend pleadings, file documents or get the documents verified etc. 10. Leamed counsel for the respondent submits that in the statement of non-applicant No.l it has come that the claimant has field a claini petition before the Commissioner for Workinen Compensation. The Tribunal may also look into the matter and to see that whether any petition is filed by the claimant ' before the Commissioner for Workmen Coinpensation or the claim was dismissed as not maintainable. 11. It is expected that the Tribunal would expedite the hearing and decide the claim petition, as indicated above, within a reasonable period. 12. Accordingly, the appeal is allowed in part to the above extent. No order as to costs. 13. The Registry is directed to send back the papers, requisitioned from the Tribunal, forthwith. —______ Sd/- I.M.Quddusi Judge Sd/- PrashantKumar Mishra Judge Thakur