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2009 DIGILAW 971 (KER)

K. Natarajan, S/o. Kunjan v. Managing Director

2009-10-14

P.R.RAMACHANDRA MENON, P.R.RAMAN

body2009
Judgment :- Ramachandra Menon, J. Sustainability of the Award passed by the Tribunal limiting the compensation to the extent of 'no-fault liability' under Section 140 of the Motor Vehicles Act, in a claim filed under Section 166, read with Sections 140 and 165 of the Act, after arriving at a finding that no compensation can be paid under Section 166 of the Act, is the issue involved in this appeal. The appellant is also aggrieved for not entertaining the claim under Section 163A of the Act. 2. The appellant was travelling in a K.S.R.T.C. but bearing No.TR 741 on 13.11.1999. It is stated that there occurred some altercation between the conductor of the bus and a passenger when the bus was stopped for alighting the passengers. Later, the passenger who alighted from the bus threw a soda bottle against the conductor which hit against the appellant who was travelling in the bus, causing severe injuries to his left eye. This led to the claim petition filed before the Tribunal seeking for compensation under Section 166, read with Section 140 of the Act as aforesaid. 3. The claim was resisted from the part of the respondents contending that there was no negligence on the part of the driver of the bus and that the claimant had not suffered any injury in a 'motor accident' as contemplated under the Statute. The claimant was examined as PW.1, besides examining another witness as PW.2 and producing documentary evidence as Exts.A1 to A7. No evidence was adduced on the part of the respondents. On conclusion of the trial, the Tribunal held that the incident very much constituted a motor accident and that the contention raised from the part of the respondents to the contrary was not correct or sustainable (which has not been stated as challenged by the Insurer). After discussing the evidence on record, it was clearly held by the Tribunal that absolutely no negligence could be attributed on the driver or conductor of the bus and as such, no compensation could be paid to the claimant under Section 166 of the Act. However, taking note of the fact that the claimant was entitled to have compensation under 'no fault liability' as stipulated under Section 140 of the Motor Vehicles Act, the same was awarded by the Tribunal. 4. However, taking note of the fact that the claimant was entitled to have compensation under 'no fault liability' as stipulated under Section 140 of the Motor Vehicles Act, the same was awarded by the Tribunal. 4. Incidentally, the Tribunal also proceeded to consider the quantum of compensation that could be paid to the claimant as provided under Section 163A of the Act. It was observed that the income of the claimant as shown in the petition was Rs.4,500/-per month and that the claimant had produced a certificate, (marked as Ext.A6) indicating that he was getting a daily wage of Rs.150/-. But, relying on the law laid down by the Apex Court in Deepal Grishbhai Soni Vs. United Insurance Company (2004 (2) KLT 395) it was held by the Tribunal that, since the annual income of the applicant admittedly was above Rs.40,000/-, the claim under Section 163A was not maintainable. It was in such circumstances, that the relief was confined to the benefit as provided under Section 140 of the Motor Vehicles Act. 5. In this context, it is very much relevant to note that the claimant did never have a case that his claim petition was liable to be entertained under Section 163A of the Act. As observed by the Tribunal and as conceded by the learned counsel for the appellant, the claim petition was preferred under Section 166, read with Section 140 of the Motor Vehicles Act. Obviously, the provision to pay compensation under Section 166 as provided under Chapter XII of the Motor Vehicles Act is with regard to the liability on the 'principle of fault'. An exception is provided under Section 140 in Chapter X, where the claimant is not required to plead or establish the negligence and the amount payable is not liable to be reduced nor the claim is to be defeated in any manner because of any wrongful act or negligence on the part of the concerned person, as stipulated under sub-section (3) and (4) of Section 140. 6. With regard to the scope of Section 163A, it has been made clear by the Apex Court that the benefit thereunder, is intended for the benefit of persons belonging to the lower strata Society, who are having an income of less than Rs.40,000/- per annum. 6. With regard to the scope of Section 163A, it has been made clear by the Apex Court that the benefit thereunder, is intended for the benefit of persons belonging to the lower strata Society, who are having an income of less than Rs.40,000/- per annum. It has also been made clear by the Apex Court, in the very same decision that, in respect of persons who belong to the higher income group, the claims are required to be considered and decided as provided under Chapter XII of the Act. 7. Admittedly, in the instant case, the claim was preferred under Chapter XII, read with Section 140 of the Act. It was after considering the various aspects involved, particularly, the evidence let in, that the Tribunal arrived at a finding that there was no negligence on the part of the driver or conductor and accordingly, the compensation payable under Section 166 was rejected; however, granting the benefit of 'no-fault liability' as provided under Section 140 of the Act. The Tribunal also considered whether the claimant would be eligible to be compensated under Section 163A. We are not expressing any opinion as to whether the said course adopted by the Tribunal was warranted. However, based on the admitted fact that the claimant was having a monthly income of Rs.4,500/-, it was observed by the Tribunal that his annual income exceeded the limit of Rs.40,000/- and as such, he was not entitled to have his claim entertained under Section 163A in view of the dictum in Deepal Grishbhai Soni's case (2004 (2) KLT 395). 8. Learned counsel appearing on behalf of the appellant submits that the claimant did not get an opportunity to amend the claim petition, particularly with regard to the incorporation of Section 163A and also to have his income limited and brought within the purview of Section 163A. By virtue of the specific observations made by the Apex Court, such a course is not permissible, as the benefit under Section 163A is intended to a particular group of people in the Society having the income below Rs.40,000/-per annum. That apart, there is also a statutory bar, as provided stipulated under Section 163 B of the Act, which stipulates that, where a person is entitled to claim compensation under Section 140 and Section 163A, he shall 'file' the claim under either of the said sections and not under both. That apart, there is also a statutory bar, as provided stipulated under Section 163 B of the Act, which stipulates that, where a person is entitled to claim compensation under Section 140 and Section 163A, he shall 'file' the claim under either of the said sections and not under both. In the instant case, the appellant admittedly has filed the claim petition under Section 140 and 166 and the learned counsel for the petitioner fairly conceded that the compensation for the 'no-fault liability' under Section 140 has already been disbursed to the injured. This being the position, 'filing' of another claim under Section 163A or consideration of the same on merit does not arise at all. In the above circumstances, we do not find any merit in the appeal and it is dismissed accordingly.