Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 673 of 2012 Appellant :- Ashok Kumar Sharma Respondent :- M/S Sun Beem Academic Samane Ghat Lanka Varanasi And Others Counsel for Appellant :- P.N.Tripathi, Nigamendra Shukla,T.N.Tiwari Counsel for Respondent :- Udai Chandani,Vinay Khare
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Present First Appeal From Order has been preferred against the Judgment and order dated 5.11.2011 passed by M.A.C.T./Additional District Judge, Court No.2, Varanasi in Motor Accident Claim Petition No. 204 of 2010, Ashok Kumar Sharma Vs. M/s Sun Been Academi and two others whereby claim petition was dismissed as not maintainable on the ground of principles of res judicata.
Facts in brief are that On 27.12.2008 at about 3.45 p.m., the appellant-claimant, who was posted as Constable in Police Post Rajgarh, was returning riding on his Hero Honda Passion motorbike having Registration No. UP 35 F 0331 to his Police Post from the office of Circle Officer, Ahraura when Boloro Jeep having Registration No.65 AF 1533, which was being driven rashly and negligently by its driver, dashed his motorbike on Highway in Bhatehara, Bhikhapur, Police Station Chunar, District Mirzapur on account of which he was seriously injured and his motorbike was badly damaged. He undergone medical treatment in Hospitals and incurred Rs.7,39,000/- towards his treatment.
Appellant-claimant filed Claim Petition (bearing No. 286 of 2009) before the Motor Accident Claim Tribunal/Additional District Judge-II, Varnasi, under Section 163 A of Motor Vehicles Act claiming compensation for a sum of Rs. 22,00,000/-. The Tribunal, after hearing the parties, dismissed the claim petition on 13.7.2010 holding that claim petition having not been instituted under Section 166 of the Act was not maintainable and the Court, on its own, could not convert a petition instituted under Section 163A into Section 166 of the Act.
Thereafter, the appellant-claimant filed another Claim Petition (bearing No. 204 of 2010) before the Motor Accident Claim Tribunal/Additional District Judge-II, Varnasi, under Section 166 of Motor Vehicles Act, which was also dismissed by the Tribunal on 5.11.2011. While dismissing the said claim petition, Tribunal held that a claimant can institute a claim petition either under Section 163A or under Section 166 of the Act but he cannot institute claim petition under both the sections at a time or consecutively. It further held that after decision in claim petition under any of the two sections, only appeal can be preferred there against and not another claim petition under other section. Accordingly, the Tribunal observed that after dismissal of earlier claim petition on merits, the appellant has no right to filed claim petition under Section 166 of the Act as the same would be barred by principles of res judicata. Hence, present First Appeal From Order.
I have heard Sri Nigamendra Shukla, learned counsel for the appellant and Sri Vinay Khare, learned counsel for the respondents.
It is submitted by Mr. Khare learned counsel for the respondents that subsequent award is based on principles of res judicata as it was a claim petition under Section 166 of the Act instituted subsequent to the decision rendered in earlier claim petition instituted under Section 163A of the Act.
Subsequent claim petition filed under Section 166 of the Motor Vehicles Act could not have been dismissed on the ground of res judicata, is the submission of Sri Nigamendra Shukla, learned counsel for appellant. It could have permitted conversion and decided the same but it could not have decided the issue of negligence. Judgment rendered in Deepal Girish Bhai Soni And Ors vs United India Insurance Co. Ltd., Baroda, AIR 2004 Supreme Court 2107 holding that subsequent claim petition under Section 166 of the Act would not be maintainable, is based on the facts of that case and same would not apply to the facts of the present case.
The appellant having approached the Tribunal under Section 163A of the Act, finding recorded therein could not have operated as res judicata as Section 163A is a Section in itself and not supplementary to Section 166 or Section 140 of the Act.
In that view of the matter, this appeal is partly allowed.
Matter is remanded back to the Tribunal for deciding compensation.
Order Date :- 17.12.2019 Ram Murti