JUDGMENT:

JUDGMENT

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)

S.B. SINHA, J :

Leave granted in S.L.P. (C) No. 708 of 2003.

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 [(2001) 5 SCC 175] (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 Kodala’s case (supra). 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 :

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.

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.

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.

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 N