BEFORE THEHON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL fCl No. ^ 3.01i-f— /aoio APPELLANTS /: CLAIMANTS 1. Kundan Sahu, S/o Shri Mahadev Sahu Aged about 38 Years, !a?^&.i'c--'L;^'ijiJ •l~ii''-^iiS S'v.ftiSst RESPONDENTS: NON-APPLICANTS 2. Khileshwar Sahu @ Khilendra Sahu S/o Shri Kundan Sahu (Wrongly Written as KundarSahu) Aged about 17 Years, 3. Ku. Bhumika Sahu O/o Shri Kundan Sahu Aged about 16 Years Appellant No.2 & 3 are minors represented by their natural guardian and father Kundan Sahu Appellant No. 1 All R/o Mangal Bazar, Kundrapara Gudiyari Raipur, Tehsil & District Raipur, VERSUS 1. Yogeshwar ©YadramSahu, S/o Shri Mahadev Sahu Aged about 35 Years, R/o Mangal Bazar, Kundrapara Gudiyari, Raipur, (C.G.) (Driver ofVehicle MarutiSOO bearing Regd. No. C.G. 04 B 5864) 2. Pradeep Pillai S/oShri P.K. Pillai, Aged bout 35 years R/o 3-752, Janta Colony, Gudiyari, Raipur/'C.G. (Owner of Vehicle Maruti 800 bearing Regd. No. C.G. 04 B 5864) 3. The Oriental Insurance Company Ltd. Through Divisional Manager, The Oriental Insurance Company Ltd. C.B.O.-2, Madina Building ,lstfloor, Jail Road Kutchery Chowk Raipur, C.G. (Insurer of Vehicle Maruti 800 bearing Regd, No. C.G. 04 B 5864) 4. Chief Divisional Manager Railway, East Coast Railway Sambalpur, Ortesa. ^v^ @ APPEAL UNDER SECTION173 OF MOTOR VEHICLE ACT. 1988 ^ \ c. '-y' 1 HIGHCOURTOF CHHATTISGARH. BiLASPUR CORAM: Hon'bleShri I.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mishra, >j, APPELLANTS RESPQNDENTi i^.A.rc»No.2of2Q11 Kundan Sahu andothers. Yogeshwar @ Yadram Sahu and others. Shri Satyendra Sahu, counssl for the appellante. Smt. Chitra Shrivastava, counsel for the respondent No.3. Shri Vinod Deshmukh, Advoeate appears on behalf ofShrl P.S, Koshy, counse! for respondent No. 4. ORAL ORDER (10/03/2011) Foiiowing oral order of the Court was passed by I. M. Quddusi. J. ' T. Heard. • 2. This appeal has been fiied against the impugned award dated 13/09/2010 passed by X AddiSional Motor Accident C!aims Tribunal, Raipur in Claim Case No. 190/2009 dismissing the claim petition. 3. Brief facts of the c-ase, as per the verstonof the claimants, are that on 27/04/2008 respondent No.1 Yogeshwar @ Yadram Sahu along with his family members was going from Raipur to vil!age Rasni by Maruti Car bearing registration No. 04-B/5864 for treatment of his wife who was suffering from Leukemia. After treatmgnt at Rasni, they were going to village Borid to meet their relatives. Res'pondent No.1 was driving the car slowly and steadily. On the way, a{ about 11.15 a.m., when the car reached railway crossing it could not stop there due to failure of brakes and moved over the railway line, but in the meantime, the Train Engine bearing No.14618 forcibfy dashed {'ne said car, as a result of which deceased Moksh Kumari as also her other relatives who were also traveling in the said Car i.e., Rashmi Sahu, Kimakshj Sahu, Ku. Kuki Pup/i Sahu died on thespot whereas Ku. Pranjal succumbed to the injuries in the hospital. 4. In the instant appeal, deceased Moksh Kumari was wife of appellant No.1 and mother of appellants No. 2 & 3. At the time of accident, deceased was a young woman of 35 years old; she was doing tailoring work and was earning Rs.4000/- per month. The appsllants being iegal representatives/dependents, made claim for the untimely death of deceased to the tune of Rs.6,61,000/- with 12% interest per annum. 5. The ctaim petition was filed under Secfion 163-A of the Motor Vehicles Act. It was mentioned that the deceased was having income of Rs.4,000/- but was giving to her house Rs.3,000/- per month and as such claimants ciaimed compensation treating loss of dependency as 36,000/- per annum, The Tribunal dismissed the claim petitiQn mainiy on two jrounds, the first ground was that since the husband ofthe deceased has re-married the claim petition is liable to be dismissed. Further that the income has beenshown as morethan Rs. 40.000/- per annum, therefore claim petltion under SecSion 163-A was not maintainable. Reference has been given to the case of Deepal Girishbhai Soni and others vs. United India Insurance Co. Ltd., Baroda reported in (2004) 5 SCC 385. 6. The Tribuna! has ignored th&fact that there were three claimants. The first claimant was the husband of ttie deceased. The other two claimants were chiidren of the deceased aged about 17 years and 16 years atthe time of filing of the claim petition. If the father has performed second marriage in that circumstances the children would be in more need of compensation as even if the father-would earn anything, it is but natural that he wilt spentthe money in maintaining his newlywedded wife and in, 1<W^ ' '^ ..^" 3- ^^ l'. such cireumstances the children may be ignored and thelr future education and specially femaie child name!y Ku. Bhumika Sahu's marriage expenses wouid be required. Therefore.if c'aimant No.1 has performed second marriage the Tribunal could refuse to grant any compensation to him, but it should not have refused to grant compensation to two other claimants i.e. Khileshwar Sahu son of the deceased and Ku. Bhumika Satits daughtsr ofthe deceased. 7. Further regarding the income of more than Rs. 40,0(X3/- per annum in case the Tribunal had not found the claim petition under SecSion 163-A of the Motor Vehicles Act maintainable, it couid have treated the daim under Section 166 or 140 of the Motor Vehicles Act after seeking the option of the claimants. The Hon'ble Apex Court in the case of Deepal Girishbhai Soni (supra) has also observed disagreeing with the opinion given in the case of Oriental Insurance Co.Ltd. vs. Hansrajbhai V. Kodala and others reported in (2001) 5 SCC 175 only in respect of its flnding that If a person invokes provisions of Section 163-A, the annual income Qf Rs. 40.000/- per annum shatl be treated as a cap, held that proceeding under Section 163-A being a social security provision, providing for a distinct scheme, on!y those whose annual income is up to Rs. 40,000/- can take ths benefit thereof, but it has also observed that all other claims are required to be determined in terms of Chapter XII of the Act and therefore the Claims Tribunal should have determined the claim under Chapter XII of the Act which start from Section 165 and ends at Section176. 8. In view of the above, this appeal is aliowed in part. The impugned award is set aside and the matter is remitted back to the Tribunal for decision afresh in the light of the obsen/ation made above. •^. ~^. ~^.-3--^.a' SSB-Ssi-.. ^ •^f- 9. Neediess to mention that the parties shalt be allowed to amend the pleadings, adduce further evidence, file documents or to get the documents verified etc. and thereafter decision shal! be taken afresh by theClaimsTribunal. 10. 'he Lov/er Court Record shal! be send back without further deiay. Sd/- I.M.Quddusi Judge Sd/- prashantKumarMishra Judge <^..