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2004 Supreme(Raj) 260
Supreme Court
Honble V. N. KHARE, CJ., & S. B. SINHA, S. H. KAPADIA, JJ.
Deepal Girishbhai Soni and Others - Appellant
Versus
United India Insurance Company Limited Baroda - Respondents
Appeal (Civil) 3126 of 2002 With C.A. No. 3127 of 2002, R.P. (C) No. 160 of 2002 In C.A. No. 2573 of 2001, R.P. (C) No. 161 of 2002 In C.A. No. 2572 of 2001 and C.A. No.1680/2004 (Arising Out of S.L.P. (C) No. 708 of 2003)
Decided On : March 18, 2004
Gaurab Banerjee, G.L. Sanghi, Jitendra Sharma, Advocates
Headnote:(a) Motor Vehicles Act, Sec. 163-A and 166 – Remedy for payment of compensation under Sec. 163-A and 166 being final and independent of each other – Held – One must opt/elect to go either for a proceeding u/Sec. 163-A or u/Sec. 166 – Sec. 163-A provides for a distinct scheme, only whose annual income is upto Rs. 40,000/- can take the benefit thereof – Any other claims are required to be determined in terms of chapter XII of the Act.(Paras 54, 55, 58 to 63)(b) Motor Vehicles Act, 1988, Sec. 163-A read with Sec. 140 – Claim application filed u/Sec. 163-A of the Act – Held – Application of appellant u/Sec. 163-A be treated to be application u/Sec. 140 – Appellant shall refund the excess amount withdrawn by them after adjusting the amount payable in terms of Sec. 140. (Paras 64 & 65)
Remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both. (Para 58)
In Sub-Section (5) of Section 140 of the Act the expression "also" has been used which is indicative of the fact that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. Proviso appended to Sub-Section (5) of Section 140 states that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of the compensation payable under Sub-Section (2) thereof or under Section 163-A of the Act. Right to claim compensation under Section 140, having regard to the provisions contained in Section 141 is in addition to any other right to claim compensation on the principle of fault liability. Such a provision does not exist in Section 163-A. If no amount is payable under the fault liability or the compensation which may be received from any other law, no refund of the amount received by the claimant under Section 140 is postulated in the Scheme. Section 163-A, on the other hand, nowhere provides that the payment of compensation of no-fault liability in terms of the structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability. It is also not correct to contend that the expression "any other law for the time being in force" used in Section 140(5) would include any other provisions of the Motor Vehicles Act. (Para 64)
Reference to this Bench :
A Division Bench of this Court by an order dated 19.04.2002 doubting the correctness of 2-Judge Bench decision in Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and Others (1), (Kodala) has referred the matter to a 3-Judge Bench whereby and whereunder the proceedings under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to and called for the sake of brevity as "the Act") has been held to be a final proceeding as a result whereof the claimants had been debarred from proceeding with their further claims made on the basis of fault liability in terms of Section 165 thereof. Subject matter :
The appeals arise out of judgment and order dated 9.11.2000 passed by the High Court of Gujarat at Ahmedabad in First Appeal No. 2272 of 2000 whereby and whereunder the claims of the appellants have been calculated limiting the income of the deceased at Rs.40, 000/- per annum.. Two review applications have also been filed seeking review of the judgment and order passed in Kodalas case (supra).
(2). An application under Article 136 of the Constitution of India has also been filed marked as S.L.P. (C) No. 708 of 2003 arising out of the judgment and order dated 28.8.2002 passed by the High Court of Himachal Pradesh in F.A.O. [MVA] No. 181 of 2001.
Background Fact :
(3). The fact of the matter may be noticed from C.A. No. 3126 of 2002. The parents of the appellants herein met with an untimely death in an accident arising out of use of a motor vehicle on or about 4.9.1998. The appellant No. 1 was at the relevant time a major and the other three appellants were minors.
(4). The appellants filed two claim petitions; one under Section 163-A of the Act and the other under Section 166 thereof claiming compensation for a sum of Rs. 4, 97, 800/- for the death of their mother, Ms. Prabhaben as also a sum of Rs. 17, 30, 900/- for the death of their father, Shri Girishbhai Soni. Proceeding on the basis that in terms of Section 163-A of the Act, merely an interim relief was to be granted, the Motor Accidents Claim Tribunal in MAC Petition No. 2133/1998 and M.A.C. Petition No. 2134/1998 vide its order dated 24.3.2000 awarded a sum of Rs. 4, 20, 500/- and Rs. 11, 74, 500/- respectively with interest at the rate of 12% per annum from the date of the application till realisation. It is not in dispute that although while passing the said order the learned Tribunal considered the matter also on their own merits but directed that the applications filed by the appellants herein purported to be under Section 166 of the Act would be determined separately.
(5). The respondent - Insurance Company being aggrieved by and dissatisfied with the said order dated 24.3.2000 preferred appeals before the High Court of Gujarat at Ahmedabad. By reason of the impugned judgment, the High Court having regard to the concession made at the bar to the effect that in view of the cap of annual income of Rs. 40, 000/- as contained in the Second Schedule appended to the Act, the awarded amount should be reduced to Rs. 3, 24, 500/- from Rs. 4, 20, 500/- and to Rs. 3, 78, 500 from Rs. 11, 74, 500/- respectively.
(6). While modifying the order of the Tribunal in each of the said appeals, the High Court clarified that the said sum would be paid to the appellants herein by way of interim compensation observing:
"It is also observed that as has been agreed between the parties this whole amount as indicated above shall be disbursed to the respondents at this stage itself as per the apportionment ordered by the Tribunal for respective respondents and there is no need to invest 70% of the amount in the fixed deposit etc., as has been ordered by the Tribunal and 100% of this amount i.e., Rs. 3, 24, 500/- in First Appeal No. 2272 of 2000 and Rs. 3, 78, 500 in First Appeal No. 2273 of 2000, shall be disbursed to the respondents in each of these two matters respectively. It may also be made very clear
