The claimants were not barred from filing a claim petition under section 163A after receiving compensation under section 161 of the Motor Vehicles Act, subject to refunding the amount received under section 161.

I.M. Quddusi, J.

This appeal has been filed by the claimants against the impugned award dated 12.9.2001 passed by the Fourth Additional Motor Accidents Claims Tribunal, Durg (C.G.), in Claim Case No. 12 of 2001 which was filed u/s 163A of the Motor Vehicles Act (for short 'the Act') claiming compensation for the death of the deceased due to accident of Luna with some unknown vehicle where he was a pillion rider. Brief facts of the case as per the version of claimants are that at about 6.30 p.m. on 24.10.2000, deceased B. Janak Rao was returning to his home at Khursipar from his place of duty at Sector 9 on a moped vehicle, i.e., Luna bearing registration No. MP 7114. On the way at G.E. Road in front of I.T.I., an unknown truck dashed the Luna from the rear side on which the deceased who was sitting as pillion rider sustained serious injuries and died on the spot. The claimants being dependants/legal representatives of the deceased have filed claim petition u/s 163A of the Motor Vehicles Act, 1988 claiming compensation to the tune of Rs. 35,45,000 on various heads for the death of the deceased.

2. The Tribunal has dismissed the claim petition as not maintainable on the ground that the claimants had already approached the Collector u/s 161 of the Act under the hit-and-run case and received Rs. 25,000 from the Collector. Thereafter, a review petition filed was also rejected vide order dated 8.8.2002.

3. In view of the above facts and circumstances of the case, a question has arisen before this court as to whether the claim petition filed u/s 163A is maintainable after receiving compensation u/s 161 of the Motor Vehicles Act.

4. Before proceeding further it is necessary to peruse the provisions of section 162 of the Act, which is reproduced as under :

162. Refund in certain cases of compensation paid u/s 161(1) The payment of compensation in respect of the death of, or grievous hurt to, any person u/s 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid u/s 161 shall be refunded to the insurer.

(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid u/s 161 or an application for payment of compensation is pending under that section, and such Tribunal, court or other authority shall,-

(a) if compensation has already been paid u/s 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1);

(b) if an application for payment of compensation is pending u/s 161, forward the particulars as to the compensation awarded by it to the insurer.

Explanation.-For the purpose of this sub-section, an application for compensation u/s 161 shall be deemed to be pending-

(i) if such application has been rejected, till the date of the rejection of the application, and

(ii) in any other case, till the date of payment of compensation in pursuance of the application.

5. A perusal of the above provisions would show that in a claim u/s 161 of the Act, claimant can claim where the identity of the offending vehicle cannot be ascertained which hit the deceased or claimant-injured or another vehicle but section 162 allows the claimants to file a claim petition subject to condition that the amoun