1. By way of this appeal, appellant has challenged the order dated 30.12.2005 passed in Motor Accident Claims Petition No.713 of 2002, filed under Section 163-A of the Motor Vehicles Act, passed by the Motor Accident Claims Tribunal(Auxi), Kutch, whereby the Tribunal has awarded Rs.2,89,500/- together with interest at the rate of 9% p.a. from the date of this application till the realization.
2. Learned advocate for the appellant has contended that though it was specifically averred in the claim petition that the annual income of the deceased exceeded the statutory limit of Rs.40,000/-, the Tribunal failed to appreciate the said aspect and proceeded with the hearing of the application filed under Section 163-A of the Act inspite of the fact that the Act prohibited entertainment of application filed under Section 163-A of the Act, if the annual income exceeds Rs.40,000/-. In support of his submission, he has relied upon the decision of Apex Court in case of Deepal Girishbhai Soni and Others V. United India Insurance Co. Ltd. reported in AIR 2004 SC 2107.
3. I have heard learned counsel for the appellant and perused the record as well as order passed by the Tribunal below application, filed under Section 163-A of the Motor Vehicles Act. It is not in dispute that the claim petition has been filed under Section 163-A of the Act. A specific averment was made by the claimant in the claim petition that the monthly income of the deceased was Rs.6,000/- at the time of death. Therefore, admittedly his annual income would exceed Rs.40,000/-. In this context, it would be pertinent to note that Schedule-II appended to Section 163-A, specifically deals with claim petitions arising out of cases where in annual income does not exceed Rs.40,000/-. In other words, a claim petition filed under Section 163-A of the Act could be entertained only if the annual income does not exceed Rs.40,000/-. The intention of the legislature is very clear since, it specifically bars the entertainment of a claim petition, filed under Section 163-A of the Act, if the annual income exceeds Rs.40,000/-.
4. In the instant case, as discussed herein above, the annual income of the deceased was of Rs.72,000/-, which is evident from the averments made in the claim petition itself. It is required to be noted that the Tribunal has also recorded the said fact in its award. Considering the principle, laid down in Deepal Girishbhai Soni's Case (Supra), the Tribunal is required to consider the matter afresh.
5. Accordingly, the order 30.12.2005 passed in Motor Accident Claims Petition No.713 of 2002 is quashed and set aside. The matter is remanded to the Tribunal for considering the matter afresh. The Tribunal is directed to decide the matter, within two year from the date of receipt of this order. However, to protect the interest of the original applicants, the Tribunal shall invest the entire amount lying with it in FDR on long terms basis and the interest accrued thereon shall be accumulated. But, if any amount has been already withdrawn, necessary set-of will be given. Orders regarding disbursement of the amount of deposit shall be passed by the Tribunal at the time of disposal of the final claim petition. The appeal stands disposed of accordingly. R & P to be sent back to the concerned Tribunal, forthwith.
..mitesh..
[K.S.JHAVERI, J.]