Claimants cannot pursue compensation claims under both Sections 163-A and 166 of the Motor Vehicle Act simultaneously; they must choose one avenue for compensation.

JUDGMENT :

Arun Kumar Rai, J.

1. Heard Mr. Ravi Ranjan, learned counsel appearing on behalf of the appellants/claimants and Mr. Vivek Kumar Sharma, learned counsel appearing on behalf of the respondent no. 1(owner) as well as Mr. Alok Lal, learned counsel appearing on behalf of the respondent no. 2- Bajaj Allianz General Insurance Co. Ltd.

2. The instant miscellaneous appeal is preferred against the judgment and award dated 21.04.2016 passed by learned Presiding Officer-cum-Motor Vehicle Accident Claims Tribunal, Ranchi in Compensation Case No. 216 of 2011 whereby and whereunder, the Tribunal has awarded a sum of Rs. 5,13,000/- with interest thereon at the rate of 9% per annum from the date of filing the case till its realization, in an application filed under Section 163-A of Motor Vehicle Act, 1988 and directed the insurance company to pay the compensation amount within a month to the appellants/claimants from the date of award.

3. The brief facts of the case is that on 08.02.2008 while the deceased-Hazara Khatoon along with her children and relatives were returning to their place from Lohardaga by tempo having Registration No. JH-01-S-0875, which was hit by unknown Bolero Jeep near Chanho petrol pump, as it was being driven in a rash and negligent manner and the above said Hazara Khatoon succumbed to the injuries sustained in the said motor vehicle accident.

Thereafter, husband and children of deceased-Hazara Khatoon filed a claim application under Section 163-A of Motor Vehicle Act, 1988 before the Tribunal stating therein that deceased was selling vegetables and her annual income was Rs. 39,000/- per annum. It is required to be noted that, for the above stated incident, an FIR being Chanho P. S. Case No. 11 of 2008 under Sections 279 /304A of IPC has also been got registered.

4. The record of the Tribunal reveals that initially the seven issues were framed vide order dated 11.03.2014 but the Tribunal vide its order dated 02.04.2016 recorded that since the claim application under Section 163-A of Motor Vehicle Act, 1988 has been filed for compensation but the issues framed were not as per Section 163-A of Motor Vehicle Act, 1988 rather, it is as per Section 166 of Motor Vehicle Act, 1988, therefore, the Tribunal recast the issues in the presence of both the parties. Records further reveal that there was no objection from either of the sides.

5. During enquiry, appellants/claimants has brought on record evidences of three witnesses, they are A.W. – 1, Ajharul Haque, nephew of the deceased, A.W. – 2 Alimuddin Ansari, husband of the deceased (claimant/applicant No. 1) and A.W. 3, Moulana Abdul Hasib who is an eye-witness as a co- passenger in the tempo involved in the accident. The above- said three enquiry witnesses on behalf of appellants/claimants reiterated the case of appellants/claimants A.W. – 2, Allimuddin Ansari has stated in his examination-in-chief that his wife, since deceased, was doing the business of vegetable and used to earn Rs. 200-250/- per day.

The Tribunal considering the income as contended in the claim application considered the annual income of the deceased as Rs. 39,000/- per annum and thereafter, awarded compensation under different heads to the tune of Rs. 5,13,000/- and interest of 9% was also allowed from date of filing of the claim case i.e. from 15.07.2011 till realization of the said amount.

6. Learned counsel for the appellants/claimants confined his argument to the extent that as in the evidence of A.W. – 2, Allimuddin Ansari, it has come on record that d