CRA/52/2007 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 52 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASS.CO.LTD. - Applicant Versus MUMTAZBEN HASAM LANGHA & 7 - Opponents ========================================================= Appearance : MR SANDIP C SHAH for Applicant: 1, MR MEHUL S SHAH for Opponents : 1 - 3. MR SURESH M SHAH for Opponents : 1 - 3. DELETED for Opponent: 4, None for Opponent : 5, NOTICE UNSERVED for Opponent: 6, RULE SERVED for Opponents : 7 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/03/2008 ORAL JUDGMENT Heard learned counsels for the parties. CRA/52/2007 2/16 JUDGMENT 1. The petitioner – New India Assurance Company Limited has moved this Court under Section 115 of Civil Procedure Code against the order dated 18/2/2006 passed by the Motor Accident Claims Tribunal (Main) Kachchh at Bhuj below application exhibit-41 in MACP No. 987 of 1998 permitting the opponents / original claimants No. 1 to 3 to withdraw the claim petition preferred by them under Section 166 of Motor Vehicles Act 1988 in view of the decision of the Apex Court in case of Deepal Girishbhai Soni and others V. United Insurance Co. Ltd, Baroda, reported in AIR 2004 SC 2107. 2. The facts in brief deserve to be set out in order to appreciate the controversy in the matter: The present opponent nos. 1 to 3 have preferred claim petition under section 166 and also petition under section 163-A of the M.V. Act, 1988 against the present petitioner Insurance Company and others. The Claims Tribunal allowed the claim petition under section 163-A on 3/5/2000. Against this award dated 3/5/2000 the Insurance Company preferred an appeal before this Court which came to be numbered First Appeal No. 1683 of 2000 with Civil Application No. 7519 of 2000. The Division Bench of this Court [Coram: J.N. Bhatt & K.M. Mehta, JJ (as they were then) vide order dated CRA/52/2007 3/16 JUDGMENT 25/9/2000 disposed of the First Appeal and Civil Application without entering into merits, on the ground that as at the relevant time the order impugned in those proceedings namely First Appeal No. 1683 of 2000 which was being heard before the Bench, the order amounted to only an interim compensation as the application under Section 166 was treated to be main application pending adjudication after full fledged hearing upon inquiry on all the aspects. The Court therefore thought it fit to dispose it of the same by taking care that the original main claim petition was in no way “intercepted” leaving the impugned order as final. The counsel appearing for the respondent then in the First Appeal assured the Court that the claimants would not withdraw the main claim petition and the claimants were to file undertaking before the trial court within four weeks from the date of the order indicating that, they shall pursue the main claim petition to its legal and logical end and they shall obtain decision of award on merits and shall not permit the impugned claim petition to be dismissed for default or withdrawal. 3. Accordingly the Division Bench of this Court disposed of the matters without entering into merits of the order impugned in that appeal. Thus the matters were disposed of on 25/9/2000. Thereafter, as submitted by the counsels, the CRA/52/2007 4/16 JUDGMENT claimants did file an undertaking before the concerned Claims Tribunal in light of the assurance given to this Court as per the assurance given to this Court while passing order dated 25/9/2000 in First Appeal No. 1683 of 2000. 4. Thereafter the Apex Court in case of DEEPAL GIRISHBHAI SONI AND OTHERS V, UNITED INSURANCE CO. LTD., BARODA, reported in AIR 2004 SC 2107 held that the claimant can not pursue remedy under section 163-A as well as under 166 of M.V. Act and he has to opt for either of the one. In view of this decision, the original claimants no.1 to 3 made an application exhibit-41 before the Claims Tribunal in MAC Petition No. 987 of 1998 for withdrawing their application under section 166 of the MV Act. To this application the Insurance Company filed objection on the ground that in First Appeal filed by the Company being First Appeal No. 1683 of 2000 with Civil Application No. 7591 of 2000 this Court on 25/9/2000 recorded assurance of the original claimants while disposing of the First Appeal without entering into merits that the claimants shall withdraw their claim application under section 166 and would file an undertaking to this effect within four weeks therefrom, and accordingly the undertaking had also been filed. It was further objected on the ground that the award made under section 163-A was made as an CRA/52/2007 5/16 JUDGMENT interim award leaving scope for the either side to lead evidence in support of their claims and therefore the application under section 166 may not be permitted to be withdrawn. The Claims Tribunal did not accept the objection of the petitioner Insurance Company and allowed the application exhibit-41 vide its order dated 18/2/2006 which is impugned in the present Civil Revision Application. 5. Shri Sandip Shah, learned counsel appearing for the petitioner Insurance Company submitted that the order impugned is erroneous and amounts to abandoning the jurisdiction vested in the trial court and, therefore, the same deserves to be quashed and set aside. Shri Shah has further submitted that the award made under section 163- A prior to the pronouncement of the Apex Court in case of Deepal Girishbhai Soni (supra) was treated as an interim award and the claimants were in fact pursuing remedy under section 166 of the MV Act as well. The Claims Tribunal while making award under 163-A in the present case also therefore did not elaborately go into the rival contentions of the parties and treating it to be an interim award which in fact was challenged before this Court by way of First Appeal No. 1683 of 2000 with Civil Application No. 7519 of 2000 and as it could be seen from the order of this Court dated 25/9/2000 even this Court also did not go into merits and the CRA/52/2007 6/16 JUDGMENT challenge to the award made under section 163-A on the ground that the application under section 166 was awaiting its adjudication and therefore by way of abundant precaution and to prevent any undue advantage to any party recorded the assurance given by counsel of the claimants on their behalf that the application under section 166 would not be withdrawn and that the same would not be permitted to be dismissed for default etc. In light of this the Claims Tribunal ought to have appreciated this aspects in its true perspective and ought not to have permitted withdrawal of the application under section 166 as it is permitted under the impugned order dated 18/2/2006. The petitioner is therefore rendered without remedy as the award under 163-A which was subject matter of First Appeal No. 1683 of 2000 remain operative without there being any adjudication upon its legality as the Division Bench of this Court vide its order dated 25/9/2000 specifically observed that merits of the challenge to the award under section163-A was not examined as the main claim petition under section 166 was pending. Shri. Sandip Shah therefore submitted that the impugned order deserves to be quashed and set aside. 6. Shri Sandip Shah has further submitted that the Claims Tribunal should be directed to restore application under section 166 of the claimant CRA/52/2007 7/16 JUDGMENT nos. 1 to 3 to its file and proceed with it on merits, so that adequate opportunity of leading evidence is available to both the parties and the parties may have opportunity to establish their rival claims against each other. In short the award can be justified after an opportunity to both the parties. 7. Shri. Mehul Shah, learned counsel for the respondents – opponent nos.1 to 3 / original claimants submitted that this revision application is misconceived and the same is not maintainable. Shri Shah has further submitted that in light of the decision of the Apex Court in case of Deepal Girishbhai Soni (supra) the claimants are not permitted to simultaneously prosecute application under section 163-A as well as application under 166 and an option is therefore left to the claimant either to pursue his remedy under section 163-A or under 166 of the M.V. Act. The Claim Tribunal's decision permitting the claimant nos. 1 to 3 for withdrawing application under 166 was therefore absolutely just, proper & valid and it does therefore not called for any interference from this Court under section 115 of Civil Procedure Code. Shri. Mehul Shah has further submitted that the undertaking was given to the Claims Tribunal pursuant to the order of this Court dated 25/9/2000 made in First Appeal No. 1683 of 2000. Therefore, the appropriate course open to CRA/52/2007 8/16 JUDGMENT the petitioner is to move the Claims Tribunal with an appropriate prayer for seeking permission to withdraw. That the Claims Tribunal also has rightly exercised its discretion in granting permission as otherwise it would have amounted to perpetuating a course of action which was not permissible under the settled law position as laid down by the Apex Court in case of Deepal Girishbhai Soni (supra). 8. Shri. Mehul Shah has further submitted that this Civil Revision Application is not maintainable on the ground that the remedy under section 173 of the M.V. Act is available where under the present petitioner could have assailed the order impugned. In alternative, Shri. Shah submitted that, assuming for the sake of submitting submission that the remedy is under section 115 of Civil Procedure Code, then also, this Court may not interfere with the order impugned as the same is passed in absolute consonance with the principle enunciated by the Apex Court in case of Deepal Girishbhai Soni (supra). Shri. Shah has candidly submitted that it is always open to the present petitioner to move appropriate appeal challenging the award made by the concerned Tribunal under section 163-A, if permissible under law, but the present Civil Revision Application deserves to be dismissed as the order impugned cannot be said to be suffering from any infirmity so as to warranting CRA/52/2007 9/16 JUDGMENT any interference under section 115 of Civil Procedure Code. 9. Heard learned counsels for the parties and perused the records and relevant papers of the Civil Revision Application. The peculiar situation has arisen on account of the enunciation of law in respect of scope of section 140, 163-A and 166 of the M.V. Act. As it is stated herein above the Apex Court in case of THE ORIENTAL INSURANCE CO. LTD V. HANSRAJBHAI V. KODALA AND OTHER COGNATE MATTERS, reported in AIR 2001 SC 1832, held that, there is no right to get compensation under section 163-A in addition to the claim compensation on 'no fault liability'. The Apex Court in case of Oriental Insurance Co. Ltd (supra) has observed as under :- “19. Lastly, for interpretation and construction of Section 163A we would refer to its heading and language. The heading is “Special provisions as to payment of compensation on structured formula basis”. At the outset, we would make it clear that for interpretation of the words of section to language of the heading cannot be used to control the operation of the section, but at the same time being part of the statute it prima-facie furnishes some clue as to the meaning and purpose of Section Re. K.P. Varghese v. ITO, (1982) 1 SCR 629 at 647: (AIR 1981 SC 1922 at P.1931). In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation CRA/52/2007 10/16 JUDGMENT by long drawn litigation after establishing fault liability. Section also begins with non- obstante clause “notwithstanding anything contained in this Act or any law for the time being in force.” This would mean that it is not subject to any adjudication of right to claim compensation as provided under the Act. The owner of the motor vehicle or the authorised insurer would be liable to pay compensation due to accident arising out of the use of motor vehicle. Section 163-B further clarifies that claim petition can be filed either under Section 140 or under Section 163A but not under both sections. 20.The learned counsel for the claimants however submitted that if we compare the language used in Sections 163A and 140(1) it would be apparent that Section 140 contemplates payment of compensation by the owner of the vehicles. As against this, Section 163A contemplates payment of compensation by the owner of the vehicle or authorised insurer. It is submitted that even if we read the said phrase as “owner of the motor vehicle of authorised insurer” as “owner of the motor vehicle or authorised insurer' on the assumption that “of” is wrongly used, then also it is their contention that Section 163A envisages payment either by the authorised insurer or by the owner of the motor vehicle. It has wider implication and, therefore, compensation beyond maximum of Rs.50000/- is provided in Second Schedule and hence the payment under Section 163A should not be considered as alternative to payment of compensation under the fault liability. In our view, it is true that Section 140 talks of payment of compensation by the owner of the vehicle, while Section 163A after reading 'of as 'or' would mean that owner of the vehicle or the authorised insurer would be liable to pay compensation under Section 163A. But that would not make any difference because determination of compensation under Section 163A is final and not as an interim measure. As stated above, the legislature has deliberately not provided that CRA/52/2007 11/16 JUDGMENT it is in addition to the compensation payable on the principle of fault liability. There is no provision for adjusting the compensation payable under Section 163A with the other payment on fault liability under the Act. 21.In the result, the contention of the claimants that right to get compensation under Section 163A is additional to claim compensation on no fault liability is rejected for the following reasons :- (1)There is no specific provision in the Act to the effect that such compensation is in addition to the compensation payable under the Act. Wherever the Legislature wanted to provide additional compensation, it has done so (Sections 140 and 141). (2)In case where compensation is paid on no fault liability under Sections 140 and 161 in case of hit and run motor accidents, the Legislature has provided adjustment or refund of the said compensation in case where compensation is determined and payable under the award on the basis of fault liability under section 168 of the Act. There is no such procedure for refund or adjustment of compensation paid where the compensation is paid under Section 163A. (3)The words “under any other law for the time being in force” would certainly have different meaning from the words “under this Act” or “under any other provision of this Act.” (4)In view of the non-obstante clause 'notwithstanding anything contained in this Act' the provisions of Section 163A would exclude determination of compensation on the principle of fault liability. (5)The procedure of giving compensation under Section 163A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under Section 163A compensation is awarded without proof of any fault while for CRA/52/2007 12/16 JUDGMENT getting compensation on the basis of fault liability claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or vehicle concerned. (6)Award of compensation under Section 163A is on predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under Section 168. The object was to avoid delay in determination of compensation. “ 10. In case of DEEPAL GIRISHBHAI SONI AND OTHERS V. UNITED INSURACNE CO. LTD, BARODA, reported in AIR 2004 SC 2107, the Apex Court has observed as under. “ 57. We, therefore, are of the opinion that 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. 58. In Kodala (supra) the contention of the claimant that right to get compensation is in addition to the no-fault liability was, thus, rightly rejected. In agreement with Kodala (supra) we are also of the opinion that unlike Sections 140 and 141 of the Act the Parliament did not want to provide additional compensation in terms of Section 163-A of the Act.“ 11.Thus the legal position is now well settled that the claimant has a right to elect and therefore in light of the observations of the Apex Court this Court is required to examine the challenge to the justness and proprietary of the order CRA/52/2007 13/16 JUDGMENT impugned in the present revision application. The fact remains to be noted that the Division Bench of this Court in First Appeal No. 1683 of 2000 did record assurance made by the counsel on behalf of the original claimant nos. 1 to 3 that the application under Section 166 would not be withdrawn and it would be decided on its own merits. The fact remains to be noted that at the relevant time in absence of crystal clear proposition of law as it is pronounced by the Apex Court subsequently in case of Oriental Insurance Company Ltd Vs. Hansrajbhai V. Kodala (supra ) and in Deepal Girishbhai Soni V. United Insurance Co. Ltd, Baroda, was it incumbent upon the Claims Tribunal to permit for adjudication of application under Section 166? The answer would be emphatic NO. At the same time, there is some force in the submission made by Shri. Sandip Shah for the Insurance Company that because of the fact then prevailing, position of law and practice, the award made under Section 163-A was treated to be an interim award and accordingly challenge to the same had not been gone into on merits by even this Court as could be seen from the order dated 3/5/2000 made in First Appeal No. 1683 of 2000. Therefore, the petitioner Insurance Company is aggrieved as without there being any proper evidence justifying the award under Section 163-A the claimants have been permitted to withdraw the money. CRA/52/2007 14/16 JUDGMENT 12.There is some force in submission of Shri. Sandip Shah for the petitioner as even the Claims Tribunal while passing the award on 3/5/2000 under Section 163-A observed as under: “It is hereby clarified that the findings about the age and the income of the deceased are prima facie findings. However, both the parties will be at liberty to adduce the evidence about the age and income of the deceased at the time of deciding application under section 166 of the M.V. Act. “ 13. Thus even the Tribunal while passing the award under Section 163-A was passed on the basis of prima facie conclusion only and treated it to be an interim award reserving liberty to the parties to adduce evidence about age and income of the deceased at the time of deciding application under Section 166 of the M.V. Act. In light of this, the question arises what remedy is available to the petitioner Insurance Company. The remedy under Section 115 of Civil Procedure Code can be said to be an appropriate remedy for redressing the grievances of the Insurance Company? This Court hasten to add here that in the Revision Application the prayer is only for quashing and setting aside the impugned order dated 3/5/2000 passed by the Claims Tribunal below exhibit-41 permitting withdrawal CRA/52/2007 15/16 JUDGMENT of application under Section 163A and 166 and direction to the Claims Tribunal to decide the MAC Petition No. 987 of 2000 under Section 166 of M.V Act on its own merits. 14.This Court is of the considered view that in light of the decision of the Apex Court in case of Oriental Insurance Co. Ltd. V. Hansrajbhai V. Kodala reported in AIR 2001 SC 1832 and in case of Deepal Girishbhai Soni V. United Insurance Co. Ltd. Baroda reported in AIR 2004 S.C. 2107, the Tribunal also cannot be said to have committed any error calling for any interference of this Court. As against this, it can well be said that the remedy of appeal is available under Section 173 of the MV Act and in view of the fact that the earlier First Appeal which was disposed of without deciding the challenge on merits would not be considered as a bar. Therefore, it can not be said that the Insurance Company is remediless. This Court hasten to add here that, this is a prima facie observation of this Court made purely for examining the plea of either sides for valid justification of the order made by the Tribunal permitting withdrawal of the application. But it goes without saying that the Insurance Company, if so advised, it always can file appeal challenging the order under Section 163-A and it goes without saying that both the sides have their contentions open. Accordingly, the impugned order does not deserve CRA/52/2007 16/16 JUDGMENT to be interfered with under section 115 of Civil Procedure code. The application therefore deserves to be dismissed and is accordingly dismissed. Dismissal of this application would in no way preclude the Insurance Company to avail its remedy, if any available, including appeal under Section 173 of M.V. Act. It is needless to observe that, this Court has not pronounced upon any of the other aspects of the matter, including with respect to justification of the claim under Section 163-A of the Act. 15. This court while issuing rule in the Revision Application has granted ad-interim relief in terms of prayer No. (11) (e) which shall remain in force for a further period of thirty days from the date of writ of this Court, for enabling the petitioner Insurance Company to avail the remedy if any available under the law. Accordingly this Civil Revision Application stands dismissed. Rule discharged. However the ad-interim relief granted by this Court vide order dated 6/7/2007 in the Civil Revision Application is to continue for a period of thirty days from the date of receipt of writ of this order. [ S.R. BRAHMBHATT, J ] /vgn