These appeals are directed against the judgment and award dated 05.09.2005 passed by the Motor Accident Claims Tribunal, (Aux.), Rajkot (for short, "the Tribunal") in Motor Accident Claim Petition No.77 of 2002 whereby, the applications preferred u/s. 163-A of the Motor Vehicles Act, FA/1016/2007 2/6 JUDGMENT 1988 (for short, "the Act") was partly allowed.
2. The original claimants nos.1 and 2 had filed the aforesaid Motor Accident Claims Petitions claiming compensation of on account of death of one Vasantbhai Bachhubhai Ghodasara and his wife while driving Scooter no.GJ-3-EE-6609 on 28.12.2001 on Rajkot-Jamnagar highway. The said applications came to be partly allowed by the Tribunal and the opponents were held jointly and severally liable to pay an amount of Rs.4,05,160/- and Rs.4,02,000 to the claimants of Claim Petitions Nos.77 and 78 of 2002 respectively by way of compensation along with interest @ 9 per cent per annum from the date of the petition till its realization to the claimants. Being aggrieved by the same, the appellant - Insurance Company has approached this Court by way of this appeals.
3. Mr. B.C. Dave, learned Advocate appearing on behalf of appellant - Insurance Company submitted that the claim petitions preferred by the claimants u/s. 163-A of the M.V. Act is subject to the provisions contained in the Second Schedule appended thereto. Learned Advocate for the appellant - Insurance Company has submitted that while awarding compensation u/s. 163-A of the M.V. Act, the Tribunal ought not to have entertained the claim application under Section 163-A when the income of the deceased was more than Rs. 40,000/- which is the statutory limit.
4 Mr. Dave has relied upon a decision in the case of Deepal Girishbhai Soni & ors. V/s. United India Insurance Co. Ltd., Baroda reported in [2004] 5 S.C.C.
FA/1016/2007 3/6 JUDGMENT 385 and more particularly, on the observations made in Paras 42 & 67 of the said decision, which reads as under;
"42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs.40,000/- having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other facts relevant therefor. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining herself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.
67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala 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 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 required to be determined in terms of Chapter XII of the Act".
FA/1016/2007 4/6 JUDGMENT
5. Learned Advocate for the claimants supported the award of the Tribunal and submitted that the Tribunal was completely justified in passing the impugned award. He has, however, submitted that if the Court is inclined to follow the principle laid down by the Apex Court in Deepal Girishbhai Soni's case (supra), the matter may be remanded to the Tribunal for adjudication afresh.
6. Heard learned counsel for the parties and perused the documents on record. It is not in dispute that the deceased expired on account of the severe bodily injuries sustained by him in the accident in question. On a plain reading of the Section 163-A, it is very clear that it provides for special provisions as to the payment of compensation on a structured- formula basis. The legislative intent behind the enactment of the said Section was to provide for the making of an award consisting of a predetermined sum, without insisting on a long-drawn-out trial or without proof of negligence in causing the accident. The said Section is subject to the Second Schedule appended thereto and provides for the grant of immediate relief to a section of the people whose annual income is not more than Rs.40,000/-. In the case on hand, evidently, the Tribunal has assessed the annual income of the victim to be beyond Rs. 40,000/- per annum. In my opinion, the Tribunal has committed serious error in law by awarding compensation which is of an amount, much higher than what is prescribed under Section 163-A r/w. the Second Schedule appended thereto.
FA/1016/2007 5/6 JUDGMENT
7. At this stage, it would be relevant to refer to a decision of the High Court of Karnataka in the case of Oriental Insurance Co. Ltd. V/s. N. Kunhappu & ors. reported in 2007 A.C.J. 30 wherein it has been held that where the claimants' evidence show annual income of more than Rs.40,000/-, then the case may be remitted back for fresh adjudication.
8. In the present case, on perusal of the evidence on record, it transpires that the annual income of the deceased is more than Rs.40,000/-, which is the outer limit, as provided in Section 163-A r/w the Second Schedule appended thereto. Therefore, in the interest of justice, it would be appropriate to remand the matter to the Tribunal concerned for adjudication afresh. In view of the above discussion and keeping in mind the principle laid down in Oriental Insurance Co. Ltd., & Deepal Girishbhai Soni's cases (supra), I have no hesitation to hold that the judgment and award of the Tribunal is contrary to law and is liable to set aside and the matter is required to be adjudicated afresh.
9. In the result, both the appeals are partly allowed and the following order is passed:
(i) The impugned judgment and award is quashed and set aside.
(ii)The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
(iii)This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be FA/1016/2007 6/6 JUDGMENT influenced by the order of this Court.
(iv)The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit and the claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(v)It is, however, made clear that interest accruing on the said Fixed Deposit shall be accumulated and will be adjusted at the time of the final award.
(vi)The amount awarded & already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
(vii)Since the matter is pending since long, the Tribunal is directed to dispose of the case as expeditiously as possible and in any case not later than two years from the date of receipt of the writ of this Court.
(viii)It is observed that this Court has not entered into the merits of the matter and the Tribunal shall consider the same afresh, without being influenced by the fact that this Court has quashed its earlier judgment and award.
(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.
(K.S. Jhaveri, J.) *mohd