1. The present appeal has been preferred by the claimant (injured) being aggrieved with the judgment and order dated 15th February, 2012, passed by the learned Judge, M.A.C. Tribunal, Durgapur, in M.A.C. Case No. 146 of 2008, under Section 163A of the Motor Vehicles Act, 1988.

2. Facts :-

3. Both the insurance companies contested the case by filing written objection denying the material contention of the claim petition.

4. The claimant was examined as P.W. 1. Relevant documents were proved and marked as Exhibits 1 to 7.

5. On completion of hearing, the learned Tribunal held as follows : "M.A.C. Case No. 146 of 2008

Broadly speaking while fixing an amount of compensation payable to an injured of an accident the damages have to be assessed separately as pecuniary damages and non pecuniary damages. Pecuniary damages includes (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure (ii) loss of earnings which injured would have made had he not injured comprising (a) loss of earnings during the period of treatment, (b) loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non pecuniary damages includes (i) damages for pain sufferings (ii) loss of amenities and (iii) loss of expectation of life. In the instant case in hand the claimant used to earn as a driver and due to amputation of his right leg below the knee he became incapacitated to work as a driver. Though in the Disability Certificate percentage of disablement was shown as 60% due to amputation but as the claimant was a driver the actual loss of earning capacity may virtually be 100% if he is neither able to drive. But still the claimant is able to change his avocation of life as save the deformity in his right leg his other organs are normal. He still is capable to earn though with difficulty. In such circumstances, the permanent physical and functional disablement of claimant Bablu Das Bairagya is assessed around 80%. The loss of future income of claimant Bablu Das Bairagya thus 4 will be (Rs.3000/-X12X15X80/100)=Rs. 4,32,500. Though claimant deposed that he incurred expenses amounting to Rs.30,000/- for his medical treatment but failed to produce any scrap of document in support thereof and as such the claimant is not entitled to get any reimbursement of the medical expenses incurred by him. Towards non pecuniary damages as and by way of pains and sufferings and loss of amenities the claimant is entitled to a further sum of Rs.17,500/-. The claimant as such is entitled to get a total compensation amounting to Rs.4,50,000/-. From the evidence it appears that the accident took place in the use of vehicles bearing no. WB-53-5502 and WB-23B-0478 and as such both the insurance companies namely New India Assurance Co. Ltd. and Bajaj Allianze General Insurance Co. Ltd. shall share the liability of making payment of the compensation in equal proportion.

Judge, MAC Tribunal Durgapur"

6. Being aggrieved with the said order, the claimant/appellant has preferred this appeal on the following ground:-

7. Learned counsel for the claimant/petitioner has relied upon the following judgments :-

Both these judgments are in respect of a claim under Section 166 of the M.V. Act. The present case is under Section 163A of the M.V. Act.

8. The accident in the present case occurred in the year 2008. The injury suffered by the victim in this case as per disability certificate proved (Exhibit 7) that the victim's right leg has been amputated and he sustained 60% permanent disability.

9. The victim was aged 43 years at the time of accident and his income has been taken as Rs.3300/- per month as no documents were produced in support of his income. But it appears that at the time of accident he was the driver of bus No. WB-53-5502 and thus a skilled labourer. Due to his disability, the victim would now not be in a position to carry on the profession of a driver as his right leg has been amputated.

10. In Deepal Girishbhai Soni & Ors. Vs. United India Insurance Co .

Ltd., Baroda, SLP (c) N0. 708 of 2003, 2004 (5) SCC 385, on 18.03.2004, the Supreme Court held as follows :-

11. Though prima facie from the evidence on record, it appears that there is sufficient materials to show that the offending vehicle was being driven in a rash and negligent manner, as to why, was the claim application filed under Section 163A of M.V. Act is not clear to this Court.

12. An application under Section 166 of M.V. Act along with an application under Section 163A of M.V. Act is maintainable but on the guidelines/directions in Deepal Girishbhai Soni & Ors. Vs. United India Insurance Co. Ltd., Baroda, (Supra ). Here in this case no such application under Section 166 of M.V. Act has been filed.

13. The Gujarat High Court in Pushpalattaben Navinchanda vs. Gujarat State Road Transport, Special Civil Application No.3313 of 2016, decided on 24th September, 2018, held as follows :-

reported in 2009 ( 1) ACC 282 (4) Narsiji Nagaji Majirana vs. Manilal Amturam Bishnoi reported in 2004 (1) FLR 875 31.1 wherein different Courts have held that order under Section 163A is practically awarding interim amount of compensation and that in fact there ware two options open to the claimants under the act i.e. (i) under Section 166 and (ii) under Section 14 or under Section 163A of the Act. Thereby claimant can file appropriate application under Section 166 for full compensation which can be awarded based upon the evidence adduced before the tribunal as well as either under Section 140 or under Section 166 of the Act, wherein the tribunal can award interim amount of compensation either as a fix amount of Rs.50,000/- or based upon the structural formula as per second schedule of the Act, even without recording evidence. Such position is required because for the victims whose income is fixed as salaried person but whose yearly income is less than Rs.40,000/- and thereby their families certainly in need of compensation, at the earliest, tribunal can award compensation under structural formula without waiting for evidence to be recorded, more particularly when prima facie evidence regarding age and income is possible for some of the victims when they are salaried and having specific evidence regarding their age and income.

31.2. The reference of full bench judgment in case of Reliance General Insurance Co. Ltd. vs. Shashi Sharma & Ors. reported in 2016 (9) SCC 627 is material, wherein the Honourable Apex Court has held that benefit received under any other statute or rules cannot be excluded while awarding compensation under Section 166 of the Act."

14. In Govindbhai Chhaganbhai Bhil (Rana) vs. Dilawarkhan Sahebkhan Baloch, First Appeal No. 845 of 2023, dated 29th August, 2023, the Gujarat High Court held as follows :-

5.5 In Mukeshbhai Bhalchandra Jani (supra), the Division Bench of this Court has held in affirmative observing that it is permissible to exercise the option out of two proceedings under Sections 163-A and 166 of the MV Act to convert the claim petition under any of the section either during pendency of the proceedings before the Tribunal or at an appellate stage. The claimant can move the Court for amendment of his claim petition at any stage of the proceedings and it would be for the concerned Court to pass order on that application in accordance with law on being satisfied about the other conditions such as income factor etc. 5.6 In the instant case, the application, exh. 7 was moved by the claimants for converting the application from no fault liability under Section 163A to the fault liability under Section 166 of the MV Act. It is the Tribunal, which was brought to the notice of the income and NEUTRAL CITATION C/FA/845/2023 ORDER DATED: 29/08/2023 undefined since the claim compensation deposited by the insurance company has not been withdrawn by the applicants, it would be in the wider interest of justice that the prayer to consider the application under Section 166 of the MV Act is allowed."

15. In the present case, the petitioner's claim is under Section 163A of M.V. Act. There is no prayer to convert the application under Section 163A of M.V. Act to an application under Section 166 of M.V. Act, even though the learned counsel on behalf of the claimant has prayed for enhanced compensation. 10

16. The claimant has already received a sum of Rs.4,50,000/- as compensation under Section 163A of M.V. Act, the highest that now be granted being Rs.5,00,000/-.

17. Thus, considering the judgment Pushpalattaben Navinchanda vs. Gujarat State Road Transport , ( Supra) and Govindbhai Chhaganbhai Bhil (Rana) vs. Dilawarkhan Sahebkhan Baloch, (Supra ), the interest of justice requires that the claimant be given an opportunity to convert the claim application under Section 163A of M.V. Act to one under Section 166 of M.V. Act, even at this stage (appellate).

18. The claimant has now stated that he does not wish to avail of the said opportunity of converting his application under Section 163A of M.V. Act to an application under Section 166 of M.V. Act.

19. In the present case, the learned counsel for the Respondent 3 & 4/Insurance companies has submitted that, as this Court enhanced the compensation in FMAT 1100/13/FMA 1844/14 relying on the judgment of the Apex Court in Janabai WD/O Dinkarrao Ghorpade & Ors. Vs. M/S. I.C.I.C.I. Lambord Insurance Company Ltd., CIVIL APPEAL NO.___________OF 2022 (Arising out of SLP (CIVIL) NO. 21077 of 2019), even though there was no cross appeal by the claimant, this Court should also consider reducing compensation in an appeal by the claimant, even if there is no cross appeal by the Insurance Companies.

20. The learned counsel for the Insurance Companies have to keep in mind that, this is a beneficial legislation, though, in appropriate 11 cases their submission to the above extent can always be considered taking into account the facts and circumstances of the case.

21. The present appeal is an appeal from a claim application under Section 163A of M.V. Act and the position of law in such a proceeding is already in place and the same is also applicable to the present case.

22. (a) In Urmila Halder Vs. New India Assurance Co. Ltd. & Ors. , in F.M.A. 446 of 2010, decided on 9th August, 2018, the Calcutta High Court held:-

5,00,000.00 x percentage of disability as per Schedule I of the Employee's Compensation Act, 1923 (8 of 1923), provided that the minimum compensation in case of permanent disability of any kind shall not be less than Rs. 50,000.00;

3. Accidents resulting in minor injury - A fixed compensation of Rs. 25,000.00.

14. With that in view, we invited such learned advocates to address us on the following issue:

Deducting 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining herself had she been alive, and adding Rs.4.500.00 on account of loss of estate and funeral expenses, we arrive at the sum of Rs.2,76,500.00.

128. In the final analysis, we hold that the appellant shall be entitled to Rs.5,00,000.00 on account of compensation under Section 163-A of the 1988 Act read with the new schedule. However, since she has received Rs. 1,14,500.00 that was awarded by the tribunal, the respondent no.1 shall pay Rs.3,85,500.00 more to the appellant within 2 (two) months from date of service of a copy of this judgment and order on it. The appellant is further held entitled to interest as follows:

Ltd. Vs. Urmila Halder, Civil Appeal No. ____ of 2024 (@ Special Leave Petition (Civil) No. 6260 of 2019), decided on 8th February, 2024, upheld the above judgment and held:-

23. In the present appeal, the claim was decided by the tribunal on 15th February, 2012, thus prior to 22nd May, 2018 and compensation of a sum of Rs. 4,50,000/- was granted in terms of the old schedule.

24. Now, in terms of the guidelines of the Courts, in the judgments, Urmila Halder Vs. New India Assurance Co. Ltd. & Ors.(Supra ) and The New India Assurance Co. Ltd. Vs. Urmila Halder (Supra ), the Appellant/Claimant is entitled to compensation of a total sum of Rs. 5,00,000/- under section 163A of the 1988 M.V. Act read with the new schedule.

25. Admittedly, the Appellant/ Claimant has already received the amount of compensation of Rs. 4,50,000/- in terms of order of the Learned Tribunal. Accordingly, the Appellant/ Claimant is now entitled to the balance amount of compensation of Rs. 50,000/- together with interest at the rate of 6% per annum from the date of filing of the claim application till deposit.

26. Respondent No. 3 & 4/ Insurance Companies, thus are directed to deposit the balance amount and the interest as indicated above in 15 equal proportion, by way of cheque before the learned Registrar General, High Court, Calcutta within a period of six weeks from date. The Respondent No. 3 & 4/ Insurance Companies, shall also pay the interest upon the sum of Rs. 50,000/- at the rate of 6% till deposit if not already paid, within the period as specified above.

27. Upon deposit of the aforesaid amount and the interest, learned Registrar General, High Court, Calcutta shall release the amount in favour of the Appellant/Claimant , upon satisfaction of his identity and payment of ad-valorem Court fees, if not already paid.

28. The appeal being FMAT 1351 of 2013 stands disposed of. The impugned judgment and award of the learned Tribunal is modified to the above extent.

29. No order as to costs.

30. All connected applications, if any, stand disposed of.

31. Interim order, if any, stands vacated.

32. Copy of this Judgment be sent to the Learned Tribunal, along with the trial court records, if received.

33. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.

(Shampa Dutt (Paul), J.)