Advocates:
['R K PORWAL', '', 'Y K SAXENA', 'ALOK SHARMA', 'P K SINHA', '']

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[A.F.R.]

Court No. - 44

Case :- FIRST APPEAL FROM ORDER No. - 80 of 2000

Appellant :- Smt.Somwati And Ors.

Respondent :- The National Insurance Co.Ltd. And Ors.

Counsel for Appellant :- R.K.Porwal,P.K. Mukerjee

Counsel for Respondent :- Y.K. Saxena,Alok Sharma,Alok

Singh,P.K.Sinha

Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri R.K. Porwal, learned counsel for the appellants, Sri P.K.

Sinha, learned counsel for respondent-insurance company and perused

the judgment and order impugned.

2. This appeal, at the behest of the claimant, challenges the judgment

and award dated 14.10.1999 passed by the Motor Accident Claims

Tribunal/VIIth Additional District Judge, Etawah (hereinafter referred

to as 'Tribunal') in M.A.C.P No.121 of 1997 awarding a sum of

Rs.3,29,500/- as compensation with interest at the rate of 12%.

3. The accident is not in dispute. The issue of negligence decided by

the Tribunal is also not in dispute. The issue to be decided is the

quantum of compensation awarded and oral objection to finding of

fact as far as licence is concerned and compensation is concerned.

4. The accident took place on 24.1.1997. The deceased was 56 years

of age. Deceased- Man Singh Yadav who was 56 years of age left

behind him, his widow, two minor son and two minor daughter which

fact is not in dispute. The Tribunal considered his income to be

Rs.15,000/- per month, deducted 1/3rd towards personal expenses of

the deceased, granted multiplier of 8.

5. In this appeal a very technical issue has arisen before this Court

in appeal filed under Section 173 of Motor Vehicles Act,1988. It is

contended that in the body of the application for compensation, the

appellants had mentioned that the application was filed under Section

166 and 163(A) of the Motor Vehicles Act, 1988. Claim petition was

filed in the year 2000; namely, much before the judgment in Deepal

Girishbhai Soni and Ors. Vs. United India Insurance Company

Limited, Baroda, AIR 2004 SC 2017, has held that claim petition

preferred u/s 163A is under No Fault Liability and though decided the

petition as of it is under Section 166 of Act granted compensation as

per Section 163A whether such approach is sustainable.

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6. It is clear that the matter when it proceeded, the learned Judge

also mentioned that it was filed under Section 166 read with Section

163A of Motor Vehicles Act, 1988 and while passing the award

granted a sum of Rs.3,29,500/- holding that under the Section 163A of

Motor Vehicles Act, the said amount was admissible and granted

interest at the rate of 12%. The Tribunal has decided issue no.1,

namely, the issue of negligence in favour of claimants.

7. It is contended by Sri R.K.Porwal, learned counsel for appellants

that the matter has been decided as per Section 166 of Motor Vehicles

Act, if the Tribunal had decided the issue of negligence and it cannot

grant compensation as per Section 163A which bad in eye of law. The

income slab was not considered by the Tribunal as income of

deceased was exceeding Rs.40,000/- per annum as per schedule.

8. Sri R.K.Porwal, learned Advocate further submits that in the

year 1997, it was a general tradition to file claim petition under

Section 166 read with Section 163A of Act as it was considered that to

be interim application under 163A was interim compensation.

Application substituting Section 140 of Act.

9. Sri R.K. Porwal, learned counsel for the appellant further

submitted that the income of the deceased should be considered to be

at least Rs.15,294/- per month. It is further submitted by learned

counsel for the appellants that the Tribunal has not added any amount

under the head of future loss of income which should be granted in

view of decision in of the Apex Court in National Insurance Co.

Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093. It is

also submitted that the Tribunal has granted the split multiplier of 8

for three years of service whic