MAC.APP.256/2007 Page 1 of 6

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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MAC.APP. 256/2007

UNITED INDIA INSURANCE CO.LTD.

..... Appellant

Through

Mr.Rajesh Dwivedi, Advocate for

Mr.A.K.De, Advocate.

versus

RITA DEVI & ORS.

..... Respondents

Through

None.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1.

The present appeal is filed by the appellant Insurance Company seeking

to impugn the award dated 17.02.2007.

2.

The brief facts which led to filing of the claim petition are that Sh. Ram

Bilas on 21.08.2004 was walking opposite fruit mandi, Azadpur. He was hit by

a truck. He died on the spot.

3.

The Tribunal awarded a total compensation of Rs.4,93,706/- to the

claimants.

4.

The limited issue that arises in the present appeal is as to whether a claim

petition filed under Section 166 of the M.V.Act, 1988 can be converted into

one under Section 163A of the Act. In the present case the claim petition was

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MAC.APP.256/2007 Page 2 of 6

filed under Sections 166 and 140 of the M.V.Act. The Tribunal concluded that

rash and negligent driving of the driver of the truck is not established.

However, it held that the court can take recourse to Section 163 A of the Act

and grant relief even if rash and negligent driving is not proved.

5.

Learned counsel appearing for the appellant stresses that the step taken

by the Tribunal of converting the petition under Section 166 M.V. Act to one

under Section 163A is incorrect and contrary to the statutory provisions. He

relies upon the judgment of the Supreme Court in the case of Deepal

Girishbhai Soni & Ors. vs. United Insurance Co. Ltd., AIR 2004 SC 2107 to

contend that in terms of the said judgment, the Tribunal acted with material

irregularities in converting the petition from Section 166 to Section 163 A of

the M.V. Act.

6.

We may first look at the judgment of the Supreme Court in the case of

Deepal Girishbhai Soni & Ors. vs. United Insurance Co. Ltd.(supra). In that

case the brief facts were that the claimant had filed two simultaneous claim

petitions one under Section 163A of the Act and the other under Section 166 of

the M.V. Act claiming compensation. The issue was as to whether a claimant

can make two separate petitions as done in that case on the presumption that

the proceedings under Section 163 A would be akin to some kind of interim

orders. The Supreme Court in that case held that the remedy for payment under

Section 163A and 166 of the M.V.Act being final and independent of each

other, a claimant cannot pursue both remedies simultaneously. One has to

opt/elect either to go for proceeding under Section 163A or under Section 166

of the Act but not under both.

7.

In the present case the Tribunal has permitted the claimants to convert

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MAC.APP.256/2007 Page 3 of 6

the petition under Section 166 into a petition under Section 163A. It was not a

case where two petitions have been pursued simultaneously by the claimants.

8.

This court in the case of Rukmani Devi vs. New India Assurance Co.

Ltd. and Anr., 2009 ACJ 2202 has held that there cannot be a bar that the

claimant cannot choose at any stage of the case to convert his petition under

Section 166 to 163A of the M.V. Act. In that case this court held as follows:-

“7. Based on the above discussion and after considering the

ratio of the aforesaid judgment of the Apex Court, it becomes

manifest that the bar is on taking simultaneous remedies under

Section 163-A and Section 166 of the Motor Vehicles Act, but

there cannot be any bar that the claimant cannot choose at any

stage of the case to convert their petition from Section 166 to

Section 163-A of the M