,r~ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT Z NON-APPLICANT No.3 M.A.fC) No. S^-7 of20U Ojvision Bencfc ,-United India Insurance Co. Ltd. Branch Office Near Ram Mandir, Ambikapur District Surguja (C.G.) ^' ^RESPONDENTS " ^t~~ 1-* .MK <yy.^/^ ."y / ^~ ^y <' Versus :^) Mus. ^ffieeta^, Bagchi, Wd/o. late Vishwajeef Bagchi, aged about 45 years, :2) Gaurabh Bagchi, S/o. late ^ Vishwajeet Bagchi, aged about 22 years, :3} Rlcha Bagchi D/o late ''' Vishwajeet Bagchi, aged about 20 years, All R/o. Village Bishrampur, Tahsil Surajpur, District Surguja (C.G.) CLAIMANTS :4) Motilal, S/o. R.D.Paswan, aged about 46 years, Occupation Driver, through Manager, Baba Mastanath Transport Company, Bishrampur, Tahsil Surajpur, Dfstrict Surguja (C.G.) NQ^N-APPLICANT No. 1 .^ :5) Subedar Hawa Singh, through Manager, Baba Mastanath Transport Company, Bishrampur, Tahsil Surajpur, District Surguja (C.G.) NON-APPLICANT No.2 ![t3fei!feNiA^y >^3 APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT. I HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN, JJ. M.A.rclNo.587/2011 Appellant Non-Applicant No.3 Respondents Vs United India Insurance Co. Ambikapur, Distt. Surguja (CG) Mus. Sumita'Bagchi and others ^ Ltd, Present: Mr. HB Agrawal, Sr. Advocate with Mrs. Meera Jaiswal, counsel for the appellant. None for the respondents, though served. •thORDER (Oral) (15InSeptember,2011) Per I.M. Quddusi, J; 1. This appeal under Section 173 of the Motor Vehides Act has been filed against the award of Additional Motor Accident Claims Tribunal, Surajpur, Distt. Surguja dated 30 August, 2001 passed in Claim Case No. 168/2000, fastening the liability to pay compensation to the claimants upon the appellant/insurance company, jointly and severally, along with driver and owner of the vehicle. 2. Brief facts of the case are that on 21.2.2000 at about 6.00 am while Vishwajeet Bagchi was going on his scooter for his duties at SECL, -Vishrampur, respondent No. 3 Motilal by driving the vehicle bearing registration No. PB 06A/2468 (hereinafter referred to as "the offending veMcle") rashly and negligently, dashed the scooter of Vishwajeet, as a result, he sustained grievous injuries and ultimately died during the course of treatrhent. Respondent No.4 was the owner of the offending vehictg, which was insured with the appellant at the relevant time. At the time of accident, the deceased was 38 years and was drawing salary of Rs.7,800/- per month from SECL. 3. The claimants, who are widow and children of the deceased, filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 (in short "the Act, 1988") before the Tribunal for a total 2- ^ .I? compensation of Rs.31,86,200/- under various heads for the death ofVishwajeet Bagchi. 4. However, learned Tribunal, after dose scrutiny ofthe evidence, oral and documentary, adduced by the parties, awarded a total compensation of Rs.7,78,000/- in favour of the claimants, by fastening the liability upon the appellant/insurance company, jointly and severally, along with driver and owner of the offending vehicle. 5. Heard learned counsel for the appellant, perused the Lower Court Record (LCR) as also the impugned award. 6. The monthly income of the deceased shown in the claim petition by the claimants was Rs.7,800/- i.e. Rs.93,600/- per annum, which is more than the limit of income mentioned in Schedule - II i.e. Rs.40,000/- for maintaining a claim petition under Section 163A of theAct, 1988. 7. In the case of Deepal Girishbhai Soni and other Vs. United India Insurance Co. Ltd, Baroda, reported in (2004) 5 SCC 385, the Hon'ble Supreme Court, in para-67, has observed thus: "66. We, therefore, are ofthe opinion that Kodala has correctly been decided. However, we do not agree with the finding in Kodala that if a person invokes provisions of Section 163A, 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 requires to be determined in terms ofChapterXII oftheAct." 8. In view of the above, the clajm petition was not maintainable and as such, liable to be dismissed, but the Tribunal by entertaining the claim petition and awarding compensation, has committed a manifest error of law. However, if the claimants have filed a claim petition, which was not maintainable, they cannot be remediless. \ »-•" h -2 ^ 9. In the result, we allow the appeal and set aside the impugned award, holding that the claim petition under Section 163A of the Act, 1988 was not maintainable. However, liberty is granted to the claimant to file a fresh claim petition before the appropriat"- forum available under the law. 10. The amount deposited by the appellant/insurance company against the impugned award, if not disbucsed, shall be refunded to it. However, if the same has been disbursed, the appellant/insurance company shall be at liberty to recover the same from the claimants. 11.No order gs to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge <«-""