A claimant cannot seek compensation under Section 163(A) of the Motor Vehicles Act if they are not the owner of the vehicle, necessitating claims under Section 166 instead.

JUDGEMENT & ORDER :

ROBIN PHUKAN, J.

Heard Ms. R.D. Mozumdar, learned counsel for the appellant and Mr. S.P. Choudhury, learned counsel for the respondents.

2. In this appeal, under Section 173 of the Motor Vehicles Act, 1988, the appellant has put to challenge the correctness or otherwise of the Judgment and Award dated 02.02.2010, passed by the learned Member, MACT, Sonitpur (‘Tribunal’, for short) in MAC Case No. 361/2007.

3. It is to be noted here that vide impugned Judgment and Award dated 02.02.2010, the learned Tribunal has directed the appellant to pay a sum of Rs. 4,67,577/- to the respondent No. 1 being the compensation with 6% interest from the date of passing of the judgment.

Background Facts:-

4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“On 19.04.2007, the respondent No. 1, namely, Bhupen Bhuyan was driving the Maruti Car, bearing registration No. AS-01-W-8763 from Biswanath Charnali towards Guwahati and he was accompanied by his friend, namely, Niranjan Saikia, the owner of the said vehicle. At about 03:10 pm, when they reached Khetri, in front of Dimoria College, an old woman with a minor child suddenly came in front of their vehicle and to save them, the respondent No. 1 turned his vehicle and as a result, the vehicle dashed against a standing oil tanker. In the said accident, the respondent No. 1 got grievous injuries on his person and the vehicle was also badly damaged.

Thereafter, the respondent No. 1 had reported the matter to police and upon which, Khetri P.S. Case G.D. Entry No. 473, dated 19.04.2007, was registered.

The vehicle in question was duly insured with Oriental Insurance Company Limited, the appellant herein and it had the valid insurance coverage at the time of the accident.

Thereafter, the respondent No. 1 had instituted one claim petition under Section 166 of the M.V. Act, claiming compensation of an amount of Rs. 6,50,000/- for injuries sustained by him. Upon the said claim petition, MAC Case No. 361/2007 was registered before the learned Tribunal. Subsequently, the application was coverted from application under Section 166 of the M.V. Act to an application under Section 163(A) of the M.V. Act.

Thereafter, the appellant had contested the claim petition by filing written statement and after hearing learned counsel for both the parties, the learned Tribunal had directed the appellant herein to pay a sum of Rs. 4,67,577/- under different heads to the respondent No. 1 being the compensation along with 6% interest from the date of passing of the judgment, i.e. 02.02.2010.”

Grounds:-

5. Being highly aggrieved and dissatisfied, the appellant has approached this Court by filing the present appeal on the following grounds :-

(i) That, the claim petition was initially filed under the provision of Section 166 of the M.V. Act, but subsequently amendment was made and the said petition was converted into any petition under Section 163(A) of the M.V. Act and in view of the aforesaid factual position, the amount of Rs. 10,000/- awarded by the learned Tribunal under the head of physical pain and suffering is highly excessive and not warranted by the provisions of the Second Schedule of the M.V. Act;

(ii) That, the respondent No. 1/claimant had claimed in his application that he was earning Rs. 6,000/- only as a Class II contractor. But, he failed to produce any documentary evidence to prove the same and in that view of the matter, the learned Tribunal ought to have taken Notional Income as provided under the Second Schedule to the M.V. Act, i.e. Rs. 15,000/- only as the annual income for assessing the compensation. And as the claim petition was filed under Section 163 (A) of the M.V. Act and not under Section 166 of the M.V. Act, the learned Tribunal instead of taking the Notional Income as provided for under the Second Schedule to the M.V. Act, ought not to have accepted Rs. 100/- only per day as the daily income of respondent No. 1/claimant i.e. Rs. 36,000/- annual inc