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2006 DIGILAW 671 (AP)

ORIENTAL INSURANCE CO. LTD. v. N. KUNHAPPU

2006-06-16

CHIDANANDA ULLAL, V.JAGANNATHAN

body2006
V. JAGANNATHAN, J. ( 1 ) THE question involved in this appeal by the insurance company is whether the Tribunal could have awarded compensation under section 163-A of Motor Vehicles Act, 1988 ('the act' for short) when the claim petition was filed simultaneously under sections 166 and 163-A of the Act. ( 2 ) THE facts necessary for our purpose briefly stated are to the effect that a claim petition was filed under section 166 read with section 163-A of the Act by claimants and the Claims Tribunal, after considering the evidence placed before it, found that the income of the deceased was not more than Rs. 40,000 p. a. Therefore, it suo motu treated the petition as one under section 163-A of the Act when no such option was exercised by the claimants and proceeded to award the compensation of Rs. 4,57,833 by putting the liability on the appellant insurance company. Incidentally, this is a case where the two vehicles were involved in the accident and one of the vehicles had no insurance coverage. ( 3 ) WE have heard the submission made by learned counsel, Mr. S. V. Hegde, for the appellant insurance company as well as the learned counsel, Mr. T. N. Vishwanath, for the claimants. Both the counsel have referred the decisions of the Apex Court as well as of this court to urge their rival contentions. ( 4 ) LEARNED counsel for the insurance company, Mr. Hegde, submitted that in view of the decision of the Apex Court in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. , 2004 ACJ 934 (SC), the claimants could not have pursued the remedy both under sections 166 and 163-A of the Act simultaneously, but ought to have exercised the option of choosing any one of them and secondly, even the claimants specific case before the tribunal was that the deceased was earning more than Rs. 40,000 p. a. and as such, the claims Tribunal could not have suo motu allowed the petition as if it was under section 163-A of the Act. ( 5 ) LEARNED counsel for the claimants on the other side submitted that since the claims Tribunal had recorded a finding that the income of the deceased was less than Rs. 40,000 p. a. and as such, the claims Tribunal could not have suo motu allowed the petition as if it was under section 163-A of the Act. ( 5 ) LEARNED counsel for the claimants on the other side submitted that since the claims Tribunal had recorded a finding that the income of the deceased was less than Rs. 40,000, the Tribunal had every jurisdiction to entertain the claim petition as if it was under section 163-A of the Act. ( 6 ) HAVING heard the submissions made by both the parties, we are convinced that the Tribunal committed serious error in law by suo motu treating the petition as if it was one under section 163-A of the Act when no such option was exercised by the claimants themselves. Secondly, the claimants could not have pursued the remedy simultaneously under both the sections and in this connection, we would like to refer to the aforesaid decision of the Supreme court. The Apex Court observed at para 57 thus: " (57) We, therefore, are of the opinion that remedy for payment of compensation both under sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt or elect to go either for a proceeding under section 163-A or under section 166 of the Act, but not under both. " Further at para 59 of the decision, the Apex court has also answered the following question in the negative: " (59 ). . . Furthermore, if in a case the tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under section 166 of the Act, would it be at liberty to award compensation in terms of section 163-A thereof. " ( 7 ) IN view of the above said position in law as laid down by the Apex Court, the tribunal could not have ignored the mandatory provisions of law merely because, the Act is a beneficial piece of legislation. It is the duty of the Tribunal to follow the procedure as prescribed under law and the law laid down by the Apex Court. The tribunal should have kept in view that the claimants are entitled for compensation as per law, but not in violation of the mandatory provisions of the law. It is the duty of the Tribunal to follow the procedure as prescribed under law and the law laid down by the Apex Court. The tribunal should have kept in view that the claimants are entitled for compensation as per law, but not in violation of the mandatory provisions of the law. ( 8 ) THE ultimate goal of all judicial proceedings is to render justice. The Tribunal, in our view, has forgotten this essential objective and it proceeded to treat the petition as if it was under section 163-A of the Act, even though the claimants' evidence showed that the income of the deceased was more than Rs. 40,000 p. a. ( 9 ) THEREFORE, we have no hesitation to hold that the judgment of the Tribunal is contrary to law and is liable to be set aside and we do so. Remand of the matter is inevitable. ( 10 ) IN the result, the appeal is allowed and both the parties are directed to approach the Tribunal and the claimants are at liberty to pursue either of the remedies available under section 163-A or under section 166 of the Act. The Tribunal is directed to permit the claimants to amend the claim petition accordingly and permit all the parties concerned to adduce further evidence, if necessary. Since the matter is of the year 1999, we further direct the tribunal to dispose of the matter within a period of three months from the date of receipt of this order. ( 11 ) THE amount deposited by the insurance company be refunded to it. ( 12 ) THE observations made herein shall not be construed as having any bearing on the merits of the case. ( 13 ) SINCE the counsel appearing for both the parties are present before court, we also direct the parties to appear before the Tribunal on 19. 7. 2006. ( 14 ) THE Registry is directed to transfer the records as early as possible. Appeal allowed. - .