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2011 DIGILAW 80 (CHH)

B. Renu v. Shivanandan (Since Dead)

2011-02-28

I.M.QUDDUSI, PRASHANT KUMAR MISHRA

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JUDGMENT : I.M. Quddusi, J. This appeal has been filed by the claimants against the impugned award dated 12.9.2001 passed by the Fourth Additional Motor Accidents Claims Tribunal, Durg (C.G.), in Claim Case No. 12 of 2001 which was filed u/s 163A of the Motor Vehicles Act (for short 'the Act') claiming compensation for the death of the deceased due to accident of Luna with some unknown vehicle where he was a pillion rider. Brief facts of the case as per the version of claimants are that at about 6.30 p.m. on 24.10.2000, deceased B. Janak Rao was returning to his home at Khursipar from his place of duty at Sector 9 on a moped vehicle, i.e., Luna bearing registration No. MP 7114. On the way at G.E. Road in front of I.T.I., an unknown truck dashed the Luna from the rear side on which the deceased who was sitting as pillion rider sustained serious injuries and died on the spot. The claimants being dependants/legal representatives of the deceased have filed claim petition u/s 163A of the Motor Vehicles Act, 1988 claiming compensation to the tune of Rs. 35,45,000 on various heads for the death of the deceased. 2. The Tribunal has dismissed the claim petition as not maintainable on the ground that the claimants had already approached the Collector u/s 161 of the Act under the hit-and-run case and received Rs. 25,000 from the Collector. Thereafter, a review petition filed was also rejected vide order dated 8.8.2002. 3. In view of the above facts and circumstances of the case, a question has arisen before this court as to whether the claim petition filed u/s 163A is maintainable after receiving compensation u/s 161 of the Motor Vehicles Act. 4. Before proceeding further it is necessary to peruse the provisions of section 162 of the Act, which is reproduced as under : 162. 4. Before proceeding further it is necessary to peruse the provisions of section 162 of the Act, which is reproduced as under : 162. Refund in certain cases of compensation paid u/s 161(1) The payment of compensation in respect of the death of, or grievous hurt to, any person u/s 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid u/s 161 shall be refunded to the insurer. (2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid u/s 161 or an application for payment of compensation is pending under that section, and such Tribunal, court or other authority shall,- (a) if compensation has already been paid u/s 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1); (b) if an application for payment of compensation is pending u/s 161, forward the particulars as to the compensation awarded by it to the insurer. Explanation.-For the purpose of this sub-section, an application for compensation u/s 161 shall be deemed to be pending- (i) if such application has been rejected, till the date of the rejection of the application, and (ii) in any other case, till the date of payment of compensation in pursuance of the application. 5. Explanation.-For the purpose of this sub-section, an application for compensation u/s 161 shall be deemed to be pending- (i) if such application has been rejected, till the date of the rejection of the application, and (ii) in any other case, till the date of payment of compensation in pursuance of the application. 5. A perusal of the above provisions would show that in a claim u/s 161 of the Act, claimant can claim where the identity of the offending vehicle cannot be ascertained which hit the deceased or claimant-injured or another vehicle but section 162 allows the claimants to file a claim petition subject to condition that the amount received under the hit-and-run case shall be refunded to the insurer. Therefore, the legislature has not created any bar for filing the application for claiming compensation under any Act, i.e., Workmen's Compensation Act or u/s 166 or 163A of the Motor Vehicles Act, as the case may be. Otherwise instead of making a provision of refund of the amount received u/s 161 the legislature could have banned the filing of subsequent claim petition after receiving compensation u/s 161 but this has not been done. Rather provision to refund the compensation already received u/s 161 of the Act in case of compensation received under any other provision has been made which shows the clear intention of the legislature to allow the claimants to claim the compensation subsequently. However, the claimants are not entitled to get dual benefit and, therefore, the compensation awarded under the hit-and-run cases is to be refunded. 6. In view of what has been discussed above, we are of the opinion that the claim petition was not barred u/s 163A filed by the claimants before the Claims Tribunal after getting the amount u/s 161 of the Act under hit-and-run cases. Therefore, in our opinion, the Tribunal has committed legal error in rejecting the claim of the claimants. In view of the facts and circumstances of the case, we allow this appeal in part, set aside the impugned orders dated 12.9.2001 and 8.8.2002 and remit the matter back to the Tribunal with a direction that the Tribunal shall restore the claim petition to its original petition and shall adjudicate the matter in accordance with law on merits. In view of the facts and circumstances of the case, we allow this appeal in part, set aside the impugned orders dated 12.9.2001 and 8.8.2002 and remit the matter back to the Tribunal with a direction that the Tribunal shall restore the claim petition to its original petition and shall adjudicate the matter in accordance with law on merits. Further the parties shall be allowed to amend the pleadings, adduce further evidence, if any; file the documents or get the documents verified, etc., and thereafter the Tribunal shall decide the claim petition afresh at the earliest in light of the observations made hereinabove. The parties shall appear before the Claims Tribunal on 6.4.2011. The records of the Tribunal shall be sent back without further delay. No order as to costs.