Inapplicability of Section 163-A of the Motor Vehicles Act due to the deceased's income exceeding Rs. 40,000 per annum and determination of the deceased as a gratuitous passenger.

Deepak Gupta, J.

1. Both the aforesaid appeals are being disposed of by a common judgment as they arise out of the same accident and award. The admitted facts of the case are that deceased Anup Kumar, aged about 23 years died in a motor vehicle accident of truck No. HP-14-4275. The claimants, who are the parents of the deceased, filed a claim petition under Section 163-A of the Motor Vehicles Act (for short the Act). In this petition it was stated that the deceased, was working as a driver with M/s Friendly Coach Bus Service, Subathu, at a salary of Rs. 4500/- per month, i.e. Rs. 54,000/- per annum. According to the averments made in the petition, the petitioner left his home at village Borti at about 6.45 a.m. to go to Kasauli to get his name registered in the Employment Exchange. He boarded the Diggal-Solan bus and got down at Darwa. There he met Mohan Lal, driver of truck No. HP-14-4275. Both, Anup Kumar and Mohan Lal, were friends. Thereafter Anup Kumar travelled in the truck of Mohan Lal. The truck went off the road near Ganguri and the deceased sustained injuries. He was taken to Civil Hospital, Dharampur. Thereafter he was referred to P.G.I., Chandigarh, but he expired.

2. It is apparent from the averments made in the claim petition that as per the claimants, the deceased was a gratuitous passenger in the truck. The respondent-Insurance Company filed a written statement on 11.12.2002 in which it was alleged that since the deceased was a gratuitous passenger in a goods vehicle, the Insurance Company was not liable.

3. Thereafter the owner filed her written statement in which it was alleged that the regular driver was to go on leave w.e.f. 27.8.2001 after unloading the truck at C.R.I., Kasauli and, therefore, the driver of the truck, who knew the deceased, had asked him to work as a driver on the truck as stop gap arrangement. It was alleged that the deceased was co-driver in the truck and hence the Insurance company was liable. Though the petition was purported to have been filed under Section 163-A of the Act, issues were framed. Neither the learned Tribunal nor any of the Counsel treated this petition to be one under Section 163-A of the Act. In fact this petition under Section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs. 40,000/- per annum. The Apex Court in Deepal Girishbhai Soni and Ors. v. United India Insurance Company Ltd., Baroda AIR 2004 SC 2107 , has clearly laid down that where the income of the deceased-victim is more than Rs. 40,000/- per annum, the claimants are not entitled to file a petition under Section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:

51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all Sections of society.

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67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- per annum shall be treated as a cap. 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 up to Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.

4. Therefore, the petition