First Appeal No.606 of 2010

16th August, 2010

Petitioner Counsel: Mr. S. S. SANYAL
Respondent Counsel: Mr. VIKAS L. JAISWAL

Cases Cited:
Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd., Baroda, 2004(5) ALL MR 674 (S.C.)=2004(2) T.A.C. 289 (S.C.) [Para 4]
Latabai Bhagwan Kakade Vs. Mohammed Ismail Mohd. Saab Bagwan, 2002(2) T.A.C. 303 (Bom) [Para 5,A]
Rajesh Kumar @ Raju Vs. Yudhvir Singh, 2008(6) Mh.L.J. 21 (S.C.) [Para 5,A]
National Insurance Co. Ltd. Vs. Malathi C. Salian, 2004(1) T.A.C. 511 (Kerala D.B.) [Para 5,A]
Smt. Mousumi Hansda Vs. Oriental Insurance Co. Ltd., 2001(1) T.A.C. 685 (Cal.) [Para 6]

JUDGMENT

JUDGMENT :- Heard by consent upon receipt of record and proceedings.

2. The appeal is challenging Judgment and Award dt.30.04.2009 passed by Chairman, Motor Accident Claims Tribunal, Bhandara in M.A.C.P. No.60 of 2005 (which was instituted by claimant (Respondent nos.1 and 2) under Section 163-A of the Motor Vehicles Act. The Tribunal held appellant along with respondent nos.3 and 4 liable jointly and severally to pay compensation in the sum of Rs.2,90,000/- to the claimants along with interest @ Rs.7.5 % p.a. from the date of petition till realisation of entire amount.

3. It is submitted in support of the appeal that the Tribunal ought not to have permitted Claim Petition u/s.163-A of the Motor Vehicle Act in view of income of the deceased at Rs.3,500/- per month as per his salary slip (Ex.40) and that claim could not have been allowed in favour of parents of the deceased as he was driving the insured vehicle at the time of accident to Metador bearing registration No.MH-34/A-4556 owned by respondent no.3. Learned Advocate for appellant submitted that claim u/s.163-A of the Act cannot be entertained if income of the deceased per year was Rs.40,000/- or more. Learned Advocate for appellant does not press challenge for quantum of compensation awarded.

4. Learned Advocate for appellant seeks to rely upon the case Deepal Girish Bhai Soni Vs. United India Insurance Co. Ltd., Baroda reported in 2004(2) T.A.C. 289 (S.C.) : [2004(5) ALL MR 674 (S.C.)] in which it appears that the Apex Court in a case wherein two applications were filed : one under Section 163-A and another under Section 166 of the Act in respect of the same accident, directed the Tribunal to treat application under Section 163-A as an application under Section 140 of the Act and then to proceed to determine claim under Section 166 of the Act.

5. The Apex Court specifically directed that the order passed by the Apex Court in that case shall not be treated as precedent while the Apex Court concluded thus :

"67. We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, 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 social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act."

5-A. On the other hand, learned Advocate for the respondents supported the impugned Award on the ground that purpose of second schedule under the Act is to avoid long drawn out litigation and delay in payment of compensation to dependents of victims of motor accident. It is submitted that, in view of explanation in the second schedule of the Motor Vehicles Act, after deducting one-third amount of salary towards personal expenses of the deceased, the amount available to dependent parents could not have exceeded Rs.40,000/- per annum as their dependency per annum. The claimants have, therefore, chosen to reduce their claim accordingly. Hence, in the facts and circumstances of the case, it cannot be said that income of the deceased available to the claimants was exceeding Rs.40,000/- per annum. It is submitted that the claim was maintainable under Section 163-A of the Act and loss of dependency for claimants was correctly computed by the Tribunal. Learned Advocate for the respondent placed reliance upon the ruling in the case of Latabai Bhagwan Kakade and Ors. Vs. Mohammed Ismail Mohd. Saab Bagwan and Ors., reported in 2002(2) T.A.C. 303 (Bom) to argue that Division Bench of Bombay High Court had entertained u/s.163-A of the Motor Vehicles Act a case in which deceased had earned salary of Rs.3,594.22 per month wherein claimants have confined their claim for compensation to Rs.4,00,000/- (Four Lakhs) instead of Rs.4,09,500; the insurance company was directed by this Court in view of Section 163-A of the Act to pay compensation of Rs.4 Lacs plus funeral expenses, loss of consortium, loss of estate and interest. Reference is then made to the ruling in the case of Rajesh Kumar @ Raju Vs. Yudhvir Singh and anr. reported in 2008(6) Mh.L.J. 21 (S.C.) in which it is held that the Tribunal can determine the amount on the basis of basic datas provided therefor. In the ruling in National Insurance Co. Ltd. Vs. Malathi C. Salian, reported in 2004(1) T.A.C. 511 (Kerala D.B.), Full Bench of Kerala High Court concluded thus in para 18 of the ruling :

"......... that a claim under Section 163-A of the Motor Vehicles Act, 1988 shall not be defeated by the Insurance Company on the ground that death or permanent disablement has occurred due to wrongful act, neglect or default on the part of the deceased or the disabled person and the Insurance Company is statutorily obliged to discharge the liability under the structured formula as per Section 163-A of the Motor Vehicles Act."

6. Learned Advocate for respondents also submitted that the Tribunal can consider maximum amount of Rs.40,000/- p.a. as income of victim for the purpose of awarding compensation under Section 163-A of the Act. Reliance is placed upon ruling in the case of Smt. Mousumi Hansda and Ors. Vs. Oriental Insurance Co. Ltd. and anr. reported in 2001(1) T.A.C. 685 (Cal.), in which also the deceased victim was drawing salary of Rs.6,649.75. Considering deductions permissible, the Court took maximum amount of Rs.40,000/- p.a. claimed as earnings and proceeded to pass award in a claim petition u/s.163-A of the Act.

6-A. In my opinion, looking into the rulings cited, it can safely be concluded that the Tribunal can consider the reduced claim upto Rs.40,000/- as earnings per year for victim of accident to entertain a claim under Section 163-A of the Motor Vehicles Act on the basis of reduced amount of compensation claimed in view of pre-structured formula in Second Schedule to the Act. In this case also, considering one-third deduction required to be made from the monthly earnings of the victim (deceased), claim u/s.163-A of the Act was permissible. The Tribunal was, therefore, well within its discretion to entertain the claim under Section 163-A of the Act and proceed to award accordingly. There is no glaring mistake; no serious infirmity or error so as to interfere with the impugned judgment and Award which appears well reasoned and apt under the circumstances. In the result, the appeal is held without merits and stands dismissed.

Appeal dismissed.