JUDGMENT
G. Chandraiah, J.
1. Aggrieved by the common judgment and decree dated 04-01 -2000 passed in M.V.O.P. Nos. 336 and 337 of 1998 by the learned IV Additional District Judge-Cum-Motor Accidents Claims Tribunal (for short ‘the Tribunal’), Kurnool, claimants preferred instant separate appeals. As they arise out of the same common judgment, they are being disposed of by this common judgment.
2. M.V.O.P. No. 336 of 1998 was filed by the petitioner/claimant, who sustained injuries in the accident, which was occurred on 18-06-1997. Parents of the deceased, who died in the same accident, filed M.V.O.P. No. 337 of 1998.
3. The averments in the claim petition in brief are that the deceased by name V. Siva Prasad and the petitioner in O.P.No. 336 of 1997 at about 11 a.m., along with some other friends, were going on scooters to Mahanandi from Nandyal. The deceased and the said petitioner were proceeding on a scooter bearing No. AP-27A-773, which was driven by the deceased. At about 11 -30 a.m. when they crossed a place called Sugali Metta near Abandam Thanda on Mahanandi-Nandyal road, R.T.C. bus bearing No. AEZ-551 (for short ‘the bus’) came in opposite direction in a rash and negligent manner and dashed against the scooter. In the said accident, the deceased sustained fatal injuries and died after being shifted to the hospital. Whereas, the said petitioner sustained serious injuries for which he was treated in different hospitals and even after entire treatment, he sustained permanent disability. The Police registered a case against the driver of the bus and filed charge sheet against him to prosecute for the offences under Sections 338 and 304-A of Indian Penal Code. The deceased was attending ice-cream business and earning Rs. 10,000/- per month, and because of his sudden death, parents of the deceased sustained loss of dependency. The petitioner in O.P.No. 336 of 1998 is a student and because of his permanent disability, he is unable to attend his normal work. In view of the same, petitioners claimed compensation of Rs. 4,00,000/- and Rs. 8,00,000/- in O.P. No. 336 and 337 of 1998, respectively.
4. Respondent-Corporation filed its counter and while denying the averments made in the claim petitions, inter alia, stated that the accident was occurred only because of rash and negligent driving of the scooter. Further, it is also stated that the compensation claimed in the claim petitions is highly excessive and therefore, the petitions are sought to be dismissed.
5. In view of the competing claims raised on either side, the Tribunal framed the following issues for trial:
1. Whether the accident occurred due to rash and negligent driving of the driver of APSRTC bus bearing No. AEZ-551 belonging to the respondents.
2. Whether the petitioner is entitled to claim compensation from the respondent, if so, to what amount.
3. To what relief?
6. P.Ws. 1 to 4 were examined and Exs. A-1 to A-16 were got marked, on the side of the petitioners. R.W.1 was examined and Exs. B-1 to B-5 were got marked, on the side of the respondent-Corporation.
7. After appreciating the evidence, both oral and documentary adduced on either side, the Tribunal was of the view that the accident was not at all occurred due to rash and negligent driving of the bus and it occurred only due to rash and negligent driving of the scooter driven by the deceased. Eventually, O.P.No. 336 and 337 of 1998 were concluded with an award for a sum of Rs. 25,000/- and Rs. 50,000/- with proportionate costs and subsequent interest at the rate of 12% per annum thereon from the date of petition till the date of realization, respectively.
8. Heard the learned Counsel on either side and perused the impugned judgment and other material available on record.
9. Learned Counsel appearing for the appellants contends that the Tribunal committed an error in disposing of the petitions without proper appreciation of the evidence adduced by the petitioners and considering only the evidence of Exs. B-1 to B-4 adduced by the Corporation and held that the accident was occurred due to rash and negligent driving of the driver of the scooter. He further contends that though in the claim petitions it was categorically mentioned that the applications are filed under Sections 163-A and 166 of the Motor Vehicles Act, 1988, the Tribunal before passing award under Section 140 of the Act, as per the Division Bench judgment of this Court in National Insurance Company Limited, Anathapur District v. J. Yellappa and Ors. 2003 (5) ALT 247 (D.B.). ought to have provided an opportunity to the claimants to opt one of the provisions. Without affording any such opportunity, the Tribunal disposed of the petitions and therefore committed an error. Since the applications were filed under Section 163-A of the Act, it is not necessary for the claimants to prove the negligence of the driver of the bus and the petitioners are entitled to the compensation as per the second schedule under the said Section. To substantiate his contention, the learned Counsel placed reliance in the case of Kore Laxmi and Ors. v. United India Insurance Co. Ltd. 2005 ACJ 543.
10. On the other hand, learned Counsel appearing for the respondent-Corporation contends that since the driver of the scooter, deceased, himself was found to be negligent, the claimants are not entitled to claim any compensation. As such, the Tribunal after proper appreciation of the evidence thus adduced on either side rightly disposed of the petitions and the judgments referred supra are not applicable to the instant case. Relying on the judgment of the Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385, he contends that the claimants did not file any separate applications under Sections 166 and 163A of the Act and they only mentioned both the provisions in the same claim petition and as they led evidence to prove the negligence of the driver of the bus and as it forms their duty to opt the concerned Sections and as they did not opt, the Tribunal having no other option, considered the claim petition under Section 166 of the Act, where the negligence of the driver of the offending vehicle is paramount and disposed of the claim petition based on the evidence. Therefore, he submitted that the appeals are liable to be dismissed.
11. The only question that falls for determination in the instant case is whether the Tribunal committed any error in not providing any opportunity to the claimants to opt under which Section the claim petitions should be considered.
12. There is no dispute with regard to the factum of accident. As could be seen from the judgment of the Tribunal it is obvious that the petitioners filed their respective claim petitions by mentioning both the Stations i.e. 163-A and 166 of the Act in the same petitions. Further, the Tribunal after elaborate discussion of the evidence thus adduced, held that the petitioners are not entitled to claim compensation under the provisions of Section 166 of the Act as the driver of the bus was not negligent and the accident occurred only because of the negligent driving of the scooter by the deceased. It is also held that the petitioners also claimed compensation under Section 163-A of the Act by including the same in heading of the petition, but it is now well settled that Section 163-A coupled with the structural formula of second schedule to the Act cannot be followed as the same is abound in mistakes as per the ruling of the Apex Court. Therefore, the Tribunal granted compensation under Section 140 of the Act.
13. Before adverting to the merits of the case, it is expedient to see whether the petitioners should be provided with any opportunity to opt a particular Section i.e. either under Section 163-A or 166 of the Act, when the claim petition/s/is/are filed under both the Sections.
14. In the Division Bench Judgment of this Court in National Insurance Company’s case (supra 1) it was categorically held that where the claimants might file petitions both under Sections 163-A and 166, either one after the other or simultaneously, the proper course to be adopted would be to give an opportunity to the claimants to exercise option as to which of the petitions is to be pursued and in case option is not exercised, it will be for the Tribunal to decide the question as to which of the applications should be processed and in normal course, the petition filed first in point of time should be taken as the petition for compensation whether it be under Sections 163-A or 166 of the Act. The relevant portion for better appreciation is extracted as under:
A situation might arise where the claimants might file petitions both under Sections 163-A and 166, either one after the other or simultaneously. In that eventuality, the proper course to be adopted would be to give an opportunity to the claimants to exercise option as to which of the petitions is to be pursued and in case option is not exercised, it will be for the Tribunal to decide the question as to which of the applications should be processed and in normal course, the petition filed first in point of time should be taken as the petition for compensation whether it be under Sections 163-A or 166 of the Act.
15. A perusal of the impugned judgment of the Tribunal does not reveal that any opportunity was provided to the claimants to opt a particular Section i.e. either Section 163-A or Section 166 of the Act. The Tribunal proceeded in normal course as if the petition is filed only under Section 166 of the Act. Further, the Tribunal neither passed an award under Section 163-A nor 166 of the Act but passed under Section 140 of the Act.
16. In the case relied on by the learned Counsel for the Corporation (3 supra), there was no occasion for the Apex Court to consider the present contingency where two claim petitions one under Section 166 and another under Section 163-A of the Act were filed, and a perusal of the said judgment would reveal that facts are totally different and hence the judgment cannot be made applicable to the present case.
17. For the foregoing reasons and since the Tribunal considered the claim petition only under Section 166 of the Act and awarded compensation under Section 140 of the Act, though the claim petition was filed both under Sections 163-A ad 166 of the Act, and as no opportunity was given to the claimants to opt a particular Section as envisaged by the Division Bench of this Court (1 supra), the impugned orders are liable to be set aside. However, since the Tribunal has already considered the claim petition under Section 166 of the Act and gave a finding that the driver of the bus is not negligent and the accident was occurred because of the negligent driving of the driver of the scooter, I am of the view that remitting the matter to the Tribunal to give opportunity to the claimants to opt one of the Sections either under Section 163-A or 166 of the Act, would be of no avail. As rightly contended by the learned Counsel for the claimants that since the claimants are not required to prove the aspect of negligence in a claim petition under Section 163-A of the Act and only the use of the vehicle and the resultant accident have to be proved and as the claimants are successful to that extent and as already observed above since the claimants have also simultaneously invoked the provision under Section 163-A of the Act and further the learned Counsel for the claimants on instructions submitted that the claimants have restricted annual income of the deceased in O.P.No. 337 of 1998 and injured in O.P.No. 336 of 1998 to Rs. 40,000/- per annum, the Tribunal shall assess the income on evidence and consider the claim petitions under Section 163-A of the Act taking into consideration the age, income and other attendant circumstances envisaged under the provision, and pass appropriate orders.
18. Accordingly, the impugned common order is set aside and the appeals are accordingly disposed of remitting the matters to the Tribunal to consider the claim petitions as stated above. No order as to costs.