SBCMA No.172/2008
National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr.
1
SBCMA No.172/2008
National Insurance Co. Ltd
Vs.
Smt. Indu Saraswat & Anr.
DATE OF ORDER : - 24.9.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr. Jagdish Vyas, for the appellant.
Mr. Rajesh Panwar, for the respondents.
Heard learned counsel for the parties.
The only question in this appeal is that whether a
person having income more than RS.40,000/- per annum
can maintain the claim under Section 163A of the Motor
Vehicles Act, 1988 (hereinafter referred to as the Act of
1988).
According to learned counsel for the appellant in view
of the decision of the Hon’ble Apex Court delivered in the
case of Deepal Girishbhai Soni & Ors. Vs. Uninted India
Insurance Co. Ltd reported in 2004 ACJ 934, the victim
having more than Rs.40,000/- annual income cannot
maintain the claim under Section 163A of the Act of 1988.
SBCMA No.172/2008
National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr.
2
However, he can get the claim under Section 166 of the
same Act. According to learned counsel for the appellant
Section 163A in the Act of 1988 has been inserted with
specific object to give relief to a section of the public having
income upto particular level. The Hon’ble Apex court clearly
held that the income of Rs.40,000/- is the cap and no claim
of such victim whose income is more than Rs.40,000/- can
be entertained by the Motor Accident Claims Tribunal under
Section 163A.
Learned counsel for the respondents vehemently
submitted that such is not restriction provided for under
Section 163A nor under the schedule enacted under Section
163A. It is also submitted that the structure formula may
have given the formula for assessing the compensation for
persons having income upto Rs.40,000/- but a person who
has income more than Rs.40,000/- can reduce his claim to
the limit provided for claims upto 163A of the Act of 1988
because of the reason that he also a person who is not
willing to go for long litigation under Section 166 of the Act
of 1988 and in all matters the litigants are allowed to
reduce their claim to come within the pecuniary jurisdiction
SBCMA No.172/2008
National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr.
3
of the court. It is also submitted that by reducing the
claim, the claimants are loosing more and that is because of
the reason that he cannot afford the long litigation in a case
where victim who was more earning person lost his life in
the accident which resulted into more pecuniary loss to the
claimant which may be sufficient ground for not contesting
the claim under Section 166 so that the person in harness
may get the relief whatever that may be.
I considered the submissions of learned counsel for
the parties and perused the judgment of the Hon’ble Apex
Court delivered in the case of Deepal Girishbhai Soni & Ors
(supra).
The argument advanced by learned counsel for the
respondents may be attractive but once the matter has
been considered by the Hon’ble Apex Court in Deepal
Girishbhai Soni & Ors case (surpa), the Hon’ble Apex Court
was conscious of all material facts, which were relevant for
the purpose of deciding the issue and there appears to be
no reason to think for a moment that the Hon’ble Apex
Court might not have considered any of the aspect before
holding it that Rs.40,000/- annual income is the cap for
SBCMA No.172/2008
National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr.
4
maintaining the claim under Section 163A of the Act of
1988. At this juncture, it will be relevant to mention here
that in Deepal Girishbhai Soni & Ors’ case, the question
was that whether the award under Section 163A is interim
and claimants are entitled to pursue their claim under
Section 166 and in that case, the Hon’ble Apex court held
that no award under Section 163A is full and final
settlement of the claim and scheme envisaged under
Section 163A leaves no manner or doubt that the rights and
obligations of the parties are to be determined finally. The
Section 163A does not provide for set off against higher
compensation like under Section 141. Meaning thereby, a
person who is entitled to submit application under Section
163A of the Act of 1988 having income upto Rs.40,000/-
per annum is given choice to avail remedy as per his wish
by lodging claim under Section 163A or under Section 166
of the Act of 1988. Once he chooses Section 163A then he
is entitle for determination under Section 163A and he
cannot thereafter contend that he was entitled to more
compensation and he got the interim compensation or
provisional compensation under Section 163A. Therefore,
SBCMA No.172/2008
National Insurance Co. Ltd Vs. Smt. Indu Saraswat & Anr.
5
the person who may have been entitled to more claim
under Section 166 because of the reason that victim’s
monthly income was more than Rs.40,000/- cannot avail
this benefit of Section 163A. The legislative wisdom of fixing
the Rs.40,000/- is also challenged by learned counsel for
the respondents but for that the validity of Section is not
under challenge and there appears to be no reason for such
a challenge.
In view of the above reasons, the appellant’s appeal
succeeds as the claimant specifically pleaded that the victim
had monthly income of Rs.11,321/- which is beyond the
Rs.40,000/- per annum.
In view of the above reasons, the appeal is allowed.
The award dated 31st Oct., 2007 passed by the Motor
Accident Claims Tribunal, Bikaner in claim case
no.156/2005 is set aside. However, if the claimant is
entitled to avail any remedy, she shall free to avail the
remedy but only in accordance with law.
(PRAKASH TATIA), J.
c.p.goyal/-