IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 946 of 2005()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. SUGANTHI, W/O. LATE MOHANAN,
... Respondent
2. MISS. SAJANI (MINOR),D/O.LATE MOHANAN,
3. MASTER SANOJ (MINOR),S/O.LATE MOHANAN,
4. A.JAFFER KHAN, S/O. ABOOBACKER,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :08/12/2009
O R D E R
C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ.
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M.A.C.A. No. 946 of 2005
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Dated this the 8th day of December, 2009
J U D G M E N T
———————-
Abdul Rehim,J.
1. The 2nd respondent before the Tribunal, who is the
insurer of the vehicle involved in the accident, is the appellant
herein. The claim arises out of death of one Sri:Mohanan, the
husband of 1st claimant and father of minor claimants 2 and 3.
He sustained fatal injuries when a scooter driven by him skidded,
throwing down him to the public road. The claim is filed under
Section 163A of the Motor Vehicles Act. The deceased was
employed in the Indian Airlines as Helper- Catering Head. He
was aged 48 years at the time of accident. The 1st claimant, wife
of the deceased was aged 38 years. As per Ext.A10 salary
certificate it is proved that the deceased was drawing a monthly
salary of Rs.10,314/-. Even the basic salary of the deceased is
Rs.3,820/- per month.
2. The Tribunal awarded compensation calculating loss
of dependency under the structured formula in the second
schedule of the Act as provided in Section 163A by limiting
annual income of the deceased as Rs.40,000/-, in order to come
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within the purview of Section 163A.
3. Contention of the appellant insurance company is that
the Tribunal had committed serious error in granting
compensation under Section 163A by putting a limit to the
annual income at the rate of Rs.40,000/-, when the claim of the
appellants as well as the proof adduced relating to income will
clearly show that the deceased was getting more than
Rs.40,000/- per year. In this regard learned counsel for the
appellant had pointed out a larger Bench decision of the Hon’ble
Supreme Court in Deepal Girishbhai Soni Vs. United India
Insurance Co. Ltd. (2004 (2) KLT 395 (SC). Referring to the
various provisions in the Act the Hon’ble Supreme Court
disagreed with the findings of a two Judges Bench decision in
Oriental Insurance Company Ltd. Vs. Hansraj Bai V.
Kodala and Ors. (2001 (2) KLT 235 (SC)) and held that
“if a person invokes provisions of Section 163A, the annual
income of Rs.40,000/- shall be treated as a cap. The
proceeding under Section 163A being a social security
provision, providing for a distinct scheme, only those whose
annual income upto Rs.40,000/- can take the benefit thereof.
All other claims are required to be determined in terms of
Chapter XII of the Act.”
The Hon’ble Supreme Court in that case found that in terms of
the provision under Section 163A, a distinct and specified class
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of citizens, namely, persons whose income per annum is
Rs.40,000/- or less alone is covered thereunder.
4. Going by dictum laid by the Hon’ble Supreme Court in
the above referred case, we are bound to accept the contention
raised by the appellant. In the case at hand it is explicitly clear
that the income of the deceased claimed before the Tribunal in
the petition filed under Section 163A, as well as the income
which is proved in evidence, exceeds the limit of Rs.40,000/- per
annum. Therefore the claim is beyond the scope of Section
163A. Hence the impugned award is legally unsustainable.
5. Since the accident occurred not due to negligence of
any other person or not due to involvement of any other vehicle,
the claim under Section 166 is not maintainable. It is held in the
above quoted decision of the Hon’ble Supreme Court and in
various other decisions that there is no option to the claimants to
pursue remedy both under Section 163A and under Section 166,
since the claims under both the sections are distinct and
exclusive of each other.
6. But yet another question arises as to whether a no
fault claim under Section 140 of the Act is sustainable or not, in
the case at hand. Under Section 163B of the Act an option is
provided to the claimants to seek compensation either under
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Section 140 or under Section 163A and prohibit filing of claim
under both the sections simultaneously. Section 141(1) provides
that the right to claim compensation under Section 140 in
respect of death or permanent disability of any person shall be in
addition to any other right to claim compensation in respect
thereof, under any other provisions of this Act or any other law
for the time being in force, except the right to claim under the
scheme referred to in Section 163A. It again indicates that the
claimants under both the Sections of 163A and under Section
140 are of similar nature based on the principles of no fault and
no amount of compensation can be awarded under both the
sections with respect to one and the same accident. But the
question arises as to whether the claim under Section 140 can be
denied to a claimant who is found not eligible for a claim under
the provisions of Section 163A, if a claim under Section 140 is
maintainable otherwise. We are of the considered opinion that
dehors the findings of ineligibility for awarding compensation
under Section 163A the right of the claimants to seek
compensation under Section 140 of the Act will not be lost.
7. In view of the above discussions, we are inclined to
set aside the impugned award granting compensation under
Section 163A of the Motor Vehicles Act. But at the same time we
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hold that the respondents/claimants are entitled to get an
amount of Rs.50,000/- being no fault liability under the
provisions of Section 140 of the Motor Vehicles Act, along with
interest @ 7.5% per annum from the date of claim petition till
payment.
8. We notice that by virtue of an interim order
dt:22.6.2005 this Court had permitted the claimants to withdraw
the amount of Rs.25,000/- already deposited by the appellant
insurance company. Under such circumstances the appellant
insurance company is directed to make payment of the balance
amount within a period of two months from the date of receipt of
this Judgment. On deposit of the amount the Tribunal shall
permit the respondents to withdraw the amount.
The appeal is disposed of as above.
C.N.RAMACHANDRAN NAIR, JUDGE.
C.K.ABDUL REHIM, JUDGE.
okb