Back
In the High Court of Bombay at Goa
U.V. BAKRE
New India Assurance Co. Pvt. Ltd.
Versus
Miss Geeta Sadanand Naik & Others
FIRST APPEAL NO. 272 OF 2006
Decided On : 13-04-2012
MOTOR VEHICLES ACT, 1988 - Sections 140 and 163-A - Maintainability of claim petition - Tribunal held that though the claimant have received the compensation under Section 140 however, still the petition under Section 163-A is maintainable - Challenged - Held - If a person filed an application for compensation under Section 140 and has already received the said compensation then certainly he cannot maintain the claim petition under Section 163-A - Finding of Tribunal is erroneous and cannot be sustained.
Section 163-B of the M.V. Act provides for an option to file claim cases and it says that where a person is entitled to claim compensation under Section 140 and 163-A, he shall file claim under either of the said sections and not under both. The above is a mandatory section. Hence, if a person has filed an application for compensation under Section 140 of the M.V. Act and has already received the said compensation, then, certainly he cannot maintain the claim petition under Section 163-A of the M.V. Act. In the case of United India Insurance Co. Ltd. v. Janabaj Yeshwant Kurhat and others, 2002 (4) Mh LJ 544, the Single Judge of the Aurangabad Bench of the High Court has held that the wording of Section 163-B of the M.V. Act is very clear and a person cannot claim compensation under Section 140 and 163-A. It has been held that a choice has been given to person to claim compensation under either of sections and not both. It has been held that where the Tribunal has awarded compensation under Section 140 as well as under Section 163-A, award under Section 163-A is contrary to statutory provisions and therefore the award cannot be sustained in law. Court fully agrees with the above view of the Single Judge of the Aurangabad Bench of the High Court.
MOTOR VEHICLES ACT, 1988 - Section 141(1) of the M.V. Act crystallizes that right to claim compensation under Section 140 is in addition to any other right to claim compensation on the principle of fault liability and specifically excludes the right to claim compensation under the scheme referred to in Section 163-A. Sub-section (2) of Section 141 further provides that if the claimant has filed an application for compensation under Section 140 and also in pursuance of any right on thee principle of fault liability, the claim for compensation under Section 140 is to be disposed of in the first instance and as provided in sub-section (3), the amount received under sub-section (2) of Section 140 is to be adjusted while paying the compensation on the principle of fault liability. However, there is no provision in the M.V. Act for reducing the amount awarded under Section 140 from the amount finally awarded under Section 163-A of the M.V. Act. On the contrary, Section 163-B specifically clarifies that claim petition can be filed either under Section 140 or under Section 163-A but not under both sections.
MOTOR VEHICLES ACT, 1988 - Sections 140, 163-A and 163-B - Claim of compensation. A claimant, cannot claim compensation under Sections 140 and 163-A of Act both as a choice given to claimant to claim compensation under either of sections and not both.
MOTOR VEHICLES ACT, 1988 - Section 163-A - Claim of compensation under - Where annual income of claimant was Rs. 40,800/- p.a. therefore claim petition filed by him under Section 163-A of Act is not maintainable.
This appeal is filed by respondent no. 5, in Claim Petition No.33/2001, against the judgment and award dated 02/05/2005 passed by the Motor Accident Claims Tribunal at Mapusa (Claims Tribunal) in the said Claim Petition.
2. The respondents no. 1 and 2 are the Claimants No. 1-a and 2. The original Claimant No. 1 died during the pendency of the Claim Petition and the Claimant No. 1-a came on record as legal representative of the deceased Claimant No. 1. The respondent no. 3 is the respondent no. 2 in the Claim Petition. The respondents No. 4, 5 and 6 are respectively the respondents No. 1, 3 and 4 of the Claim Petition. The parties shall be referred to in the manner in which they appear in the cause title of the said Claim Petition No.33/2001.
3. The case of the claimants was as follows :
On 9/1/2001, the deceased was a pillion rider on the scooter bearing registration No. GA-01/V-5463 which was driven by Pradeep Dattu Gaonkar and they were proceeding from Bicholim to Assonora and when they reached near Taleshwar Temple, Mulgaon at about 20.20 hours, a Maruti Car bearing No. GA-01/J-5522, coming from opposite direction, owned and driven by the respondent No. 1 at a fast speed, and in a rash and negligent manner, dashed against the said scooter, as a result of which, the deceased sustained fatal injuries. It was alleged that the deceased (son of the deceased Claimant No. 1 and of Claimant No. 2) was working for Goa Bagayatdar Society Ltd., Ponda and earning a monthly salary of Rs. 3397/-. A total amount of Rs.5,95,000/- was claimed from respondents no. 1 and 2 as owner and insurer of the Maruti Car.
4. Respondent no.1, the owner and driver of the Maruti Car, opposed the petition and alleged that he was proceeding from Bicholim to Assonora in his own Maruti Zen Car bearing No. GA-01/J 5522 in a normal speed and the scooter came from opposite direction, lost the control and gave dash to the Car.
5. Respondent no. 2, the insurer of the said Maruti Car, had also opposed the Claim and had further alleged that the petition is liable to be dismissed on the ground of nonjoinder of necessary parties that is the driver, owner and insurer of the scooter.
6. Thereafter, the Claim petition was amended. Since the original Claimant No. 1 i. e. the father of the deceased pillion rider of the scooter had expired, his daughter came on record as his legal representative. The owner, rider and insurer of the scooter were added as respondents no. 3, 4 and 5.
7. The respondent No 5, the insurer of the scooter, filed its written statement thereby denying its liability.
8. An application under section 140 of the M. V. Act which was also filed by the Claimants along with the Claim Petition was allowed by the Claims Tribunal by Order dated 21/8/2003. The Claimants have received the said amount on 21/02/2004.
9. Subsequently, an application dated 8/10/2004 to amend the petition in order to bring their claim under Section 163-A of the M. V. Act instead of Section 166 of the of M. V. Act was filed by the claimants thereby restricting the income of the deceased to Rs.40,000/- per year. This application was opposed by respondents. However, by order dated 30/11/2004, the learned Claims Tribunal allowed the said application. Therefore, the Claim Petition, which was originally filed under Section 166 of the M. V. Act got converted into an application under Section 163-A of the M.V. Act.
10. Respondent no. 4, the owner of the scooter, filed his written statement denying the claim of the claimants. The respondents No. 1, 2 and 5 also filed additional written statements. The said respondents, inter alia claimed that the Claimants are not entitled to change their Claim from section 166 to section 163-A of the M. V. Act.
11. The claimant No. 2 examined herself as AW1, Shri Giridhar Potibhaskar, the Branch Manager of Goa Bagayatdar K. V. Society Ltd. at Ponda as AW2, Head Constable Shri Raghuvir Gawandi as AW3 and Shri Ashok Naik, one of the panch witnesses to
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
