A claim petition filed under Section 163A of the M.V. Act can be treated under Section 166 if sufficient evidence of negligence is established, ensuring just compensation.

JUDGMENT :

A mother, who lost her 31 year old unmarried son in a motor vehicle accident that occurred on 10.2.2010 and whose claim petition has been dismissed by the Tribunal, is before me in appeal. The main reason for the dismissal is, she happened to file OP(MV).1176/2010 before the Motor Accidents Claims Tribunal, Palakkad, under Section 163A of the Motor Vehicles Act ('the M.V.Act' for short), instead of filing it under section 166 of the M.V.Act.

2. According to the petitioner, while her son was travelling in a car from Thrissur to Palakkad, at about 8.15 p.m on 10.2.2010, a container lorry driven by the 2nd respondent in a rash and negligent manner hit against the car and as a result of which, her son was crushed to death. Though the OP was filed under Section 163A of the M.V.Act, there was specific allegation in the petition that the accident occurred due to the rash and negligent driving of the container lorry by the 2nd respondent. In OP the annual income of the deceased claimed was Rs.90,000/-. Respondents 1 and 3 are the owner and insurer of the container lorry.

3. The 3rd respondent/insurer filed written statement admitting valid insurance coverage to the container lorry, but contended that the accident occurred due to the negligence of the deceased.

4. The evidence in the case consists of Extes.A1 to A8 and B1. The documents produced by the petitioner includes copy of the FIR and charge-sheet involved in the crime No.152/2010 of Vadakkanchery police station against the 2nd respondent, the driver of the container lorry. After evaluating the evidence on record, the Tribunal found that since the annual income of the deceased was Rs.90,000/- a petition under Section 163A of the M.V.Act is not maintainable and accordingly the claim petition was dismissed.

5. Being aggrieved by the above order of the Tribunal dismissing the OP, she preferred this appeal.

Now the points that arise for consideration are the following :

(i) Whether the Tribunal was justified in dismissing the OP filed under Section 163A of the M.V. Act as not maintainable for the reason that the annual income of the victim was more than Rs.40,000/-, in spite of the fact that there was sufficient pleadings and evidence to proceed under Section 166 of the M.V.Act ?

(ii) Whether, at this belated stage, the claim petition is to be remanded to the Tribunal ?

(iii) What should be the quantum of compensation to be awarded to the petitioner, in case the claim petition is not remanded to the Tribunal ?

6. Heard Sri.P.Venugopal, the learned counsel for the petitioner and Sri.John Joseph Vettikad, the learned Standing Counsel for the 3rd respondent.

7. In order to bring a claim petition under Section 163A of the M.V.Act the annual income of the victim should be within the upper limit indicated in Schedule II of the M.V.Act, ie, Rs.40,000/-.

8. The scope of Section 163A of the M.V.Act has been explained by the Hon'ble Supreme Court in Deepal Girishbhai Soni vs. United India Insurance Co.Ltd, 2004 KHC 595 in paragraph 67 as follows :

“…. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.”

9. Relying upon the decision in Deepal Girishbhai Soni (supra) the learned counsel for the 3rd respondent would argue that it is the option of the claimant to file a claim petition either under Section 166 or under Section 163A of the M.V.Act. It was argued that, once the option is exercised and a claim petition was filed and it was dismissed, the claimants cannot claim benefit under section 166. Therefore, he vehemently pressed for dismissal of the appeal.

10. The learned counsel for the appellant/claimant would argue that the claim petition filed under Section 163A on its face was not maintainable as the annual income of the deceased disclosed in the petition was R