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JUDGMENT
10. FA.354.13.doc S.S.Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 354 OF 2013
1. Vitthal Shankar Nanaware Age: 70 years, Occ:Nil,
2. Smt. Kamalabi Vithal Nanaware, Age: 68 years, Occ: Househod,
3. Vaishali Kailas Nanaware, Age:25 years, Occ: Household,
4. Vishal Kailas Nanaware, Age:12 years, Occ: Education,
5. Shubham Kailas Nanaware, Age: 6 years, Occ: Education, Applicant No.4 Vishal Minor Hence his Guardian Applicant No.5 i.e. Shubham is minor hence his guardian his mother, Applicant No.3 Vaishali All R/at:Taradgaon, Tal – Indapur, Dist-Pune... Appellants (Ori. Applicants)
VERSUS
1. Jitendra Shivaji Ambekar Age:29 years, Occ: Agriculturist, R/at: Vadaki Gaon, Tal – Haveli, Dist – Pune.
2. Mr. Malti Jagalkishor Patadia, Age: Adult, Occ: Business, R/at: Sr.No.15/1A, alok Height, Manorama Bangalow, Ganeshnagar, Near Kamble Vasti Dhyari, Pune 411 041.
3. The New India Assurance Company Ltd., Branch Office Bhigwan Chowk, Baramati, Tal – Baramati, Dist – Pune.. Respondents (Ori. Opponents).................... Mr. Rahul S. Kadam for Appellants Mr. Shubham Misar i/by H.G.Misar for Respondent No.3................... CORAM: MILIND N. JADHAV, J. DATE: JULY 21st, 2022 ORAL JUDGMENT:
1. By consent of both parties, First Appeal is taken up for final hearing at the stage of admission. 1 of 10
2. This appeal has been filed to challenge the legality and validity of the judgment and order dated 05.05.2012 passed by the Motor Accident Claims Tribunal, Baramati under Section 163A of the Motor Vehicle Act, 1988 (for short “the said Act”) dismissing Claim Application No.117 of 2009 filed by the appellants. The appellants have filed the original application under Section 163A of the said Act for grant of compensation of Rs.4,68,500/-. By the impugned judgment, the learned trial court held that the application was not tenable under Section 163A of the said Act.
3. Appellants (original- applicants) are legal heirs of deceased Kailas Vithal Nanaware who met with an unfortunate accident while driving Indica Car bearing registration No. MH-12-DG-3426 on 10.03.2009, while he was on his way from Pune to Solapur at Pune Solapur highway. Deceased was 30 years old on the date of the accident. It has been brought on record before the trial court that deceased was receiving salary of Rs.6,000/- per month as he was working as driver with City Trupati Travels, Pune and in addition thereto had an annual agricultural income of Rs.1,00,000/-, hence his salary was computed as Rs.1,72,000/- per annum. Claim of appellant was for total compensation of Rs.4,68,500/- before the trial court. Before the trial court original applicants did not file any other claim. Mr.Kadam, learned counsel for appellants submits that appellants had lodged 2 of 10 their claim under Section 163A of the said Act before the trial court. Issue framed by the trial court relating to compensation was as under: “Whether applicants are entitled for compensation if yes, from whom and to what extent?”
3.1. Other issues as framed by trial court are not relevant.
4. Trial court in so far as the issue of compensation is concerned, in the impugned judgment held as under:- “9] It may be stated that applicant filed instant application under section 163-A of M.V.Act. Needless to say that applicants themselves have specifically averred in their application in para no.C that deceased was earning Rs.6,000/- per month as a salary and Rs.1,00,000/- per annum. However, they have not restricted their claim to the extent of Rs.40,000/- annual income of the deceased. Though, applicant No.3 has filed her affidavit at Ex.23, wherein she has also reiterated the same income of the deceased. Thus, it is crystal clear that applicants are claiming that deceased was earning Rs.1,72,000/- per annum, but they have not restricted their claim to the extent of Rs.40,000/- being annual income of the deceased. Ld. Adv. For the applicant has relied upon the authority in the matter of Haseena Sulthana and others Vs. National Thermal Power Corporation Ltd. and another, reported in 2007 ACJ 1832. I have carefully gone through the said authority. The Hon’ble Andhra Pradesh High Court observed in para no. 14 and 16 as under - “14. The other important differences between sections 163-A and 140 of the Act is that under the latter only a fixed amount is payable and in respect of former the amount is payable under a structured formula basis which prescribed the upper income limit of Rs.40,000 per annum. Therefore, if the income of the deceased or the victim exceeds Rs.40,000 per annum, he will not be in a position to file claim petition under section 163-A of the Act. Hence, the issue no.3 framed above is answered in the negative.” “16. Therefore it is clear that even if the person with high income notionally brings down his income to Rs.40,000, his claim petition under section 163-A can be entertained.” 10] In the case in hand, applicants have specifically come with 3 of 10 a case that deceased was earning Rs.1,72,000/-. However, they have not restricted their claim to the extent of Rs.40,000/being annual income of the deceased. Therefore, the ratio laid down in the said authority is applicable to the present case. Therefore, their application is not maintainable under section 163-A of M.V.Act. 11] Ld. Adv. for applicant has also relied upon authority reported in 2007 (1) All M.R.(Journal) 51, 2008 DGLS (Soft) 398 and Accidents Claim Journal 2012 (Volume I). I have gone through these authorities, however, applicants have not restricted their claim contending that annual income of the deceased was Rs.40,000/-. The second schedule of M.V.Act shows the structured formula for determination of the compensation. The provisions of section 163-A of M.V.Act is applicable when the income of the deceased was to the extent of Rs.40,000/- per annum, but in the case in hand, earning of deceased was exceeding Rs.40,000/- per annum and the applicants have not restricted their claim to the extent of Rs.40,000/- being annual income of the deceased. Therefore, the present application is not tenable under section 163-A of M.V.Act. Hence, question does not arise to give findings on issue no.1 and 2. In view of the above reasons, I answer issue no.1 to 3 under consideration accordingly. In view of above findings, present application deserves to be dismissed. In the result, I proceed to pass following order - ORDER
1. The application is dismissed with costs.
2. Award be drawn accordingly.”
5. It is seen that appellants’ application was dismissed on the ground that appellants had specifically come to court with a case that the deceased was earning Rs.1,72,000/- per annum but filed their claim under the provisions of Section 163A of the said Act.
6. Section 163A of the said Act reads thus: “163A. Special provisions as to payment of compensation on structured formula basis.
1. Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent 4 of 10 disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).
2. In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
3. The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.”
7. Trial court reasoned that since the appellants had not restricted their claim to the extent of Rs.40,000/- being the annual income of the deceased, it relied upon the authority reported in 2007 (1) All M.R. (Journal) 51, 2008 DGLS (Soft) 398 and contended that the application was not maintainable under Section 163A of the said Act.
8. Hence, appellants’ claim came to be dismissed by judgment dated 05.05.2012.
9. I have heard Mr. Kadam and Mr. Misar, learned counsel for the respective parties. Submissions made by counsel has received due consideration.
10. Mr. Misar, learned counsel for respondent No. 3 – Insurance Company has placed before me a judgment in the case of Deepal 5 of 10 Girishbhai Soni and Ors.V/s. United India Insurance Co. Ltd. Baroda[1] and contended that if a person invokes the provisions of Section 163A then in that case the annual income of Rs.40,000/- ought to be treated as a cap and the said provision is a social security provision providing for a distinct scheme; hence only those whose annual income is upto Rs.40,000/- can take the benefit thereof. He submitted that in the present case appellant’s application to the Court was under Section 163A, however, in view of the computation of annual income of Rs.1,72,000/- of the deceased by the appellants they were dis-entitled for any benefit or compensation under Section 163A. Mr. Kadam has also persuaded me to read the last line of paragraph No. 67 of the aforesaid judgment. Paragraph No.67 of the said judgment reads as under:
11. Mr. Misar has been fair in his submissions and has referred to and relied upon the decision of this Court (Coram: M.S. Sonak, J.) reported in 2021 SCC Bom 5020, which inter-alia, has referred to the judgment in the case of Deepal Girishbhai Soni and Ors. (supra) to
6 of 10 draw the distinction in the case if an application made by claimants is under Section 163A or Section 166 of the said Act with reference to the income of the deceased at the time of death.
12. On reading of the aforesaid judgment, the narrow issue before me for decision in this First Appeal is whether to permit appellants to convert their original application under Section 163A as an application under Section 166 of the said Act.
13. The decision of the Apex court in the case of Kunda and Others V/s. National Insurance Company Ltd. Through its Manager, National Insurance Company Ltd. And Anr.[2] covers this issue. Findings in the said case are etched out succinctly in paragraph No. 29 of the judgment and read thus:-