IN THE HIGH COURT OF JUDICATURE AT BILASPURfC.G.) ^^^ MISC.APPy€A=HOWN0. ^>75 OF^OIO) 2o l\ APRELLANT ^" ^6n-ApplJcan(|^ ^ 'No.l ^a^r^ ^"^ ^ ^- % .'^ 'v^-' ^•^^ Phool Sai, aged about 72 years, S/o. Late. Shri Shiva Prasad Chandra, agriculturist, resident of Village Nandali, P.S. & Tahsil - Jaijaipur, District Janjgir-Champa (C.G.) RESPONDENTS ^tlaimants VERSUS 1, ^' Non-Applicant No.2 Mst. Pitar, Bai, aged 23 years, widow of late Shri Prem Lal Kewat. 2.^Chandan Kumar aged about 5 years, S/o. Late Shri Prem Lal Kewat. ^ 3,, Ku.Puja, aged about3 years, D/o. Late Shri Prem Lal Kewat. ^ Rahul Kumar, aged 3 months, S/o. Prem Lal Kewat. All the resident of Village Nandeli. Rest No.2 to 4 through the guardian-ad-liten. The mother Mst. Pitar Bai widow of late Shri Prem Lal ofViirage Nandeli. 5^ Shri Manharan, aged 45 years, S/o. Shri Kheduram Kewat, Village Nandeli. 6, Mst. Goso Bai, aged 43 years, wife of Shri Manharan Kewat, Village Nandeli,5:'P.S. & Tah. Jaijaipur, District Janjgir-Champa (C.G.). Bhartiya State Bank, Jaijaipur, through the Branch Manager, Bhartiya State Bank, Jaijaipur, Tah Jaijaipur, Distt. Janjgir-Champa. <";"y < v^u^^ ^'^^-^-^^^/:r^^Tl MEM(T6^APPFAL^NDER ^ECTION 173 OF THE MOTOR VEHICLES ACT, 1988 ^' K^ R ..^(^sS'i^^^\ k<» HIGH COURT OF CHHATTISGARH. BILA8PUR DB: Hon*ble I. M. QUDDUSI 85 Hon*ble G. MINHAJUDDIN, JJ M.AtCj No. 379/2011 APPELLANT: RESPONDBNTS: Phool Sai Vs. Mst. Pitar Bai aad ofhers MI8C, APPEAL UNDBR SBCTION 173 OP THB MOTOR VBHICLES ACT. 1988 Appearaace: Mr, M.D. Sharma, counsel for fhe appeUaat Mr, Basaat Dewangaa, counsel for fhe S.BJ.^ -^-- Per I.M. OUDDUSI. J. ORAL ORDBR (10.08.2011) Heard, 2. This appeal has been filed by fhe owner of fhe vehicle agaiast the impugned award dated 31.08.2010 passed by the Addittonal Motor Accident Claims Tribunal, Sakti, Distt. Janjgtr Champa (C.G) in Claun Case No.39/2008. 3. Brief facts of fhe case as per fhe version of claimaats are fhat on 07.05.2008 deceased Prem Lal after runniag fhe Tractor bearing Regn, No, C.G. 11-4462 in fhe field ofhis owner Phool Sai aad on coinpletmg fhe agricultural works was returairig to his viUage Nandeli by drivmg the said Tractor. Sunderlal @ I Ram Prasad, who was workiag as labour m fhe Tractor of Fhool Sai, was also sitting ia fhe s^id Tractor, On the way when fhey reached to the tunung of Ganjipara caaal near Jaijaipur, a cattte has suddenly conie ia fheir way and ia the process of ^o ^\ •^t^ '•\ ^. €.: saving that cattie, fhe Tractor became uncontroUed and fell down io. fhe canal, as a result of which, deceased driver Prenilal aad Sitidurlal @ Ramprasad bofh died. At fhe thne of accident, deceased was a young raaa of 26 years old. He was workmg as Driver ia fhe said Tractor of Phool Sai aiid was getting a raonfhly wages of Rs.4000/ - per inonfh, The claimaiits being dependents/legal representatives of fhe deceased have filed claiai petition u/ s 163-A of the Motor Vehicles Act for fhe award of total coinpensation of Rs.23,18,000/ - on various heads. , 4. The learaed Clamis Tribunal haviag regard to fhe facts situation aad inaterial on record, held fh.at when fhe deceased •^ was driving tiie Tractor of Phool Sai iE^t witihi accident, as a result ofwhich, he sustafcaed mjuries and died; fhe driver was not haviag valid aad effective drivmg license to drive flie Tractor; fhe vehicle was not msured; fhe Baak/non-applicant no.2 was not responsible fliough titie Tractor was under mortgage and ftie clauiiaats are entitied to receive a total corapensation ofRs.5,93,500/- froin fhe owner Phoolsai. S. We have heard learaed counsel for fhe pardes and have also gone fhrough ftie records of the Tnbunal. 6. On perusal of fhe records, we have found fhat ra Para 6 as also in sub-para (1) of Para 20 of fhe clabn petition it has been shown that fhe iaconie of the deceased as Rs,4000/- ( per monfh. aad Rs.48,000/- per aaniim, Siace fhe amiual iacoine of fhe deceased was pleaded as Rs.48,000/ - which exceeds fhe outer Umit of Rs.40,000/" fixed m the Second Schedule appended to fhe Motor Vehicles Act, 1988, fhe —^^ ^f ^ '?^ cladin petition filed u/ s 163-A of the Act is not inamtaiaable ia view of fhe decision rendered io. case of Deeped Qlrlshbed Soni -vs- United Jndia Insurcancc Compomy LteL, Barod (2004) 5 SCC 385 wherem a fhree Judge Bench of Hon'ble fhe Supreme Court while reviewing the dec^ion oftwo Judge Bench in case of Oriental Insurance Co. Lid. Vs. Hansrqjbhcd V. Kodala & others (2001) S SCC 175 held as under: a67. We, therefore, are of the opiaion fhat Xodatahas correctiy been decided. However^we do not agree wifh fhe fiD.diags ia Kodala ftiat if a ,^ person iavokes provisions of section 163-A, fhe aanual iacoine of Rs,40,000/- per aanum shatl be treated as a cap. In our opiaion, fhe proceediag u/ s 163-A beiag social secu4ty pr^idsion, providiag for a distmct scheme, only those whose aruiual iaconie is upto Rs.40,000/- caa take fh.e benefit thereof. AU other claims are required to be detenmned ia. tenas of Chapter XII offhe Act^ 7. In view of above, we are of fhe view fhat fhe clami petition filed u/s 163-A oftibLe MVA is not niaintauiable, Hence, we atlow fhis appeal and set aside fhe iaipugned award dated 31,08.2010. However, this wUl not debar the clamiaats to file a fresh claim petition under fhe relevaat provisiqns of law for fhe tune beiag m force. 8. In fhe result fhe appeal is aBowed. No order as to cpst(s), Rao Sd/- LM.Quddusi Judge Sd/-' G. Minhajuddin Judge