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2014 DIGILAW 531 (GUJ)

GEETABA v. GOVIND MALSI DANIYA

2014-04-16

M.R.SHAH, R.P.DHOLARIA

body2014
JUDGMENT : M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi), Court No. 7, Kutch Bhuj (hereinafter referred to as the "Tribunal") dated 27.9.2013 passed in M.A.C.P. No. 20 of 2000, by which, the learned Tribunal has dismissed the said application for getting the compensation under Section 166 of the Motor Vehicles Act (hereinafter referred to as the "Act"), the appellants herein original claimants have preferred present First Appeal. The facts leading to the present First Appeal in nutshell are as under: "1.1. That vehicular accident which took place on 27.9.1999 the husband of the original claimant No. 1 and father of the claimant Nos. 2 to 4 Kishorsingh Mahipatsing Jadeja who was driving the scooter met with Tempo bearing No. GJ12U5659 driven by the original opponent No. 1 and he died on the spot. That the original claimants filed MACP No. 20 of 2000 before the Tribunal claiming compensation for the death of deceased Kishorsingh Mahipatsing Jadeja. It appears that application for getting compensation under Section 166 of the Act was preferred on 27.9.1999. It appears that in the said application the claimants submitted the application below Exh.6 claiming compensation under Section 163 of the Act on 10.1.2000 claiming compensation at Rs. 6,59,500 with 18% interest thereon from the date of application till realization. That by order dated 4.10.2000, the learned Tribunal allowed the said application at Exh.6 and ordered/directed the original opponent Nos. 2 and 3 to deposit with the Tribunal a total sum of Rs. 3,29,500 with running interest at the rate of 12% p.a. from the date of main claim petition till deposit. That the learned Tribunal also passed an order that the original claimants shall file an undertaking before the Tribunal stating that they will pursue the main claim petition and obtain the judgment and award on merits and they shall neither permit the same to be dismissed for default of appearance nor withdraw the same. The learned Tribunal also directed and ordered that out of amount that may be deposited with the Tribunal together with interest, after deducting Court fees, remaining amount shall be distributed amongst all the appellants/claimants in such a way that original claimant Nos. 2 to 4 each shall get 20% amount and the original claimant No. 1 widow shall get remaining 40% of the amount. 2 to 4 each shall get 20% amount and the original claimant No. 1 widow shall get remaining 40% of the amount. The learned Tribunal also passed an order of investment and disbursement. It appears that parties acted as per the order passed by the learned Tribunal passed under Section 163A of the Act. 1.2. It appears that thereafter in the year 2008, the claimants submitted the application before learned Tribunal to permit them to proceed further with the very application of getting compensation under Section 166 of the Act. It appears that by order dated 30.1.2009 the learned Tribunal allowed the said application at Exh.34 and observed that now the Tribunal has to decide the application filed by the claimants under Section 166 of the Act independently in accordance with law. The learned Tribunal also passed an order that amount which is deposited by the Insurance Company before the Tribunal and disbursed in favour of the claimants shall be subject to final award that may be passed in application under Section 166 of the Act. 1.3. It appears that thereafter the aforesaid claim petition came up for hearing before the learned Tribunal and by impugned judgment and award and considering the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , the learned Tribunal has dismissed the said application by holding that once the claimants got compensation under Section 163A of the Act, thereafter they are not entitled to proceed further with application for compensation under Section 166 of the Act and consequently by impugned order the learned Tribunal has dismissed the claim petition for getting compensation under Section 166 of the Act. 1.4. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal passed in MACP No. 20 of 2000 in dismissing the claim petition, the original claimants have preferred present First Appeal." 2. Mr. Hardik Raval, learned Advocate for the appellants original claimants has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in dismissing the claim petition submitted by the claimants which was submitted for getting compensation under Sections 166/163A of the Act. 2.1. Mr. Hardik Raval, learned Advocate for the appellants original claimants has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in dismissing the claim petition submitted by the claimants which was submitted for getting compensation under Sections 166/163A of the Act. 2.1. It is submitted that the learned Tribunal has not properly appreciated the fact that at the relevant time when claimants were paid compensation under Section 163A of the Act the law was not clear and the law came to be interpreted and/or position was made clear by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni and Others (supra). It is submitted that till then the law was not clear and the application for getting compensation under Section 163A of the Act was considered as interim compensation application only. It is submitted that even while passing order below Exh.6 i.e. awarding compensation under Section 163A of the Act, the learned Tribunal has specifically observed that it is interim compensation only and even findings are also interim and prima facie. It is further submitted that in the present case, therefore, when the learned Tribunal passed the order below Exh.34 and allowed the said application granting permission to the claimants to proceed further with their claim petition for getting compensation under Section 166 of the Act observing that the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni and Others (supra), would not be applicable to the application pending prior to said decision as the law was not clear and the said decision would not be applicable retrospectively, the learned Tribunal ought to have decided the claim petition on merits and ought to have determined and awarded compensation under Section 166 of the Act. It is submitted that as such claimants got meagre amount of Rs. 3,29,500 at the relevant time and, therefore, claimants are not permitted to proceed further with their application for compensation under Section 166 of the Act that there shall be grave injustice to them. It is further submitted by Mr. Raval, learned Advocate for the claimants that even amount invested in the FDR, pursuant to the earlier order under Section 163A of the Act are still lying with the Tribunal. 2.2. It is further submitted by Mr. Raval, learned Advocate for the claimants that even amount invested in the FDR, pursuant to the earlier order under Section 163A of the Act are still lying with the Tribunal. 2.2. Making above submissions and relying upon the order passed by the learned Single Judge in First Appeal No. 4078 of 2008, it is requested to allow the present appeal and quash and set aside the impugned judgment and award passed by learned Tribunal and direct learned Tribunal to proceed further with and/or decide and dispose of claim petition of the claimants for compensation under Section 166 of the Act on any condition that may be imposed by this Court. 3. Heard Mr. Raval, learned Advocate for the appellants herein-original claimants. At the outset, it is required to be noted and it is not in dispute that order came to be passed by the learned Tribunal awarding compensation to the original claimants under Section 163A of the Act on the application below Exh.6 which was submitted by the claimants and even the same came to be implemented and acted upon by the parties. It is required to be noted that pursuant to the direction issued by the learned Tribunal while passing order below Exh.6 and awarded compensation under Section 163A of the Act, the learned Tribunal passed an order of disbursement and investment and directed that after deducting Court fees, if any, the remaining amount shall be disbursed amongst all the claimants in such way that original claimant Nos. 2 to 4 each shall get 20% amount out of the total amount deposited with the Tribunal and the original claimant No. 1 widow shall get remaining 40% of the amount out of the deposited amount. The learned Tribunal also passed an order that out of the amount falling to the shares of minor petitioner Nos. 3 and 4, 20% amount shall be paid to the petitioner No. 1 in cash by account payee cheque and the remaining 80% amount shall be invested in FDR in the name of each minor claimant, separately under the guardianship of petitioner No. 1, in any scheduled bank for a period till the minor claimants attained the age of majority and on further condition that the same shall be renewed from time to time and there shall be no loan and advance. The learned Tribunal also passed an order that so far as claimant Nos. 1 and 2 are concerned, out of the amount falling to their shares, 35% amount should be paid to each of them in cash by account payee cheques and the remaining amount of 65% of their shares shall be involved in FDR in their respective names, in any scheduled bank of a period of six years. Thus, the claimants withdrew the aforesaid amount as stated hereinabove and the remaining amount came to be invested in the respective names in the FDRs. That by impugned judgment and order, the learned Tribunal has rejected the claim petition by observing that once the claimants have received the compensation under Section 163A of the Act, their application for getting compensation under Section 166 of the Act is not required to be proceeded further, as the same is not maintainable. As such, the aforesaid issue whether once the claimants got compensation under Section 163A of the Act, they can proceed further with and/or they can be permitted to pursue the application for getting compensation under Section 166 of the Act, is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra) and even recent decision of the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited v. Dhanbhai Kanji Gadhvi and Ors., reported in I (2011) ACC 667 (SC) : 2011 (2) GLR 1534 (SC). In the case of Deepal Girishbhai Soni (supra),it is specifically observed and held by the Hon'ble Supreme Court that remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. The question which came to be considered by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), is whether the proceedings under Section 163 of the Motor Vehicles Act, 1988 is final proceeding, by result whereof, the claimants who has been granted compensation under Section 163A, is debarred from proceeding with any further claims on the basis of fault liability in terms of Section 166 thereof. After considering the scheme envisaged by Section 163A of the Act, it is held by the Hon'ble Supreme Court in the said decision that Parliament intended to lay down a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation. What is ruled therein is that the compensation determined and paid under Section 163A of the Act is final and not interim one. It is also required to be noted at this stage that in the said case, the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India and with a specific observation that the said order shall not be treated as a precedent, directed that the claim petition of the claimants under Section 163A of the Act be treated to be application under Section 140 of the Act thereof and the amount invested by the Tribunal may be allowed to be withdrawn by the respondent Insurance Company and the appellants shall refund the excess amount withdrawn by them after adjusting the amount payable in terms of Section 140 of the Act and directed that the Tribunal shall proceed to determine their claim petitions filed under Section 166 of the Act in accordance with law. As stated above, the aforesaid order has been passed by the Hon'ble Supreme Court in exercise of powers under Article 142 of the Constitution of India and the Hon'ble Supreme Court has also observed that the said order shall not be treated as a precedent. While laying down the law in the case of Deepal Girishbhai Soni (supra), the Hon'ble Supreme Court has not observed anything that the said decision shall be applicable prospectively and/or law laid down by the Hon'ble Supreme Court in the said decision would not be applicable to the applications filed prior to the said decision. Thus, in view of the aforesaid specific law laid down by the Hon'ble Supreme Court that once the claimants received the compensation under Section 163A of the Act, thereafter, he is precluded from proceeding further with petition filed under Section 166 of the Act. Thus, in view of the aforesaid specific law laid down by the Hon'ble Supreme Court that once the claimants received the compensation under Section 163A of the Act, thereafter, he is precluded from proceeding further with petition filed under Section 166 of the Act. Therefore, as such the learned Tribunal has not committed any error in passing the impugned judgment and award rejecting the claim petition submitted by the claimants for getting compensation under Section 166 of the Act having once the claimants received the compensation under Section 163A of the Act. 4. Identical question came to be considered by the Hon'ble Supreme Court in the case of Dhanbhai Kanji Gadhvi and Ors. (supra). In the case before the Hon'ble Supreme Court, the Tribunal passed order permitting the claimants who had already obtained compensation under Section 163A of the Act, to proceed with the application filed under Section 166 of the Act. The said order came to be confirmed by the High Court, by observing as under: "After hearing and on perusal of the record and from the scheme of the Act, it is clear that proceedings under Sections 163A and 166 of the Act i.e. both proceedings are permissible. In my view, claimant can file both the proceedings and opt for either of proceedings. The only condition is that application for proceeding under Section 166 should be filed before the award is passed. Here, in this case, the proceedings were filed before the award is passed." The Hon'ble Supreme Court has quashed and set aside the aforesaid order passed by the learned Tribunal confirmed by High Court to permit the claimant to proceed further with the application under Section 166 of the Act and has held that once the claimant gets compensation under Section 163A of the Act, it shall be treated as final and thereafter the claimants are precluded from pursuing the remedy under Section 166 of the Act. Para 11 to 13 of the aforesaid decision are as under: "11. Para 11 to 13 of the aforesaid decision are as under: "11. On consideration of the object of Section 163A of the Act which was inserted by Section 51 of the Act 54 of 1994 w.e.f. 14.11.1994, and the non obstante clause with which Sub-section (1) of Section 163A commences, it is manifest that the Legislature did not intend to prevent the claimant from getting compensation as per the structured formula merely because in his original claim petition he had prayed for compensation on the basis of "fault liability" principle. There is no prohibition in any provision of the Motor Vehicles Act 1988 against the claimant praying for compensation as per the structured formula after having filed a claim petition under Section 166 of the Act. Therefore, this Court finds that the respondents were perfectly justified in making an application at Exhibit 6 in MACP No. 759 of 1997 which was filed under Section 166 of the Act and praying the Tribunal to award compensation to them on the basis of the structured formula mentioned in Section 163A of the Act. This Court further finds that the Tribunal did not commit any error in entertaining the said application and awarding a sum of Rs. 2,65,500 as compensation to the respondents under Section 163A of the Act. 12. However, in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, the question which was considered by a three-Judge Bench of this Court was whether a proceeding under Section 163A of the Motor Vehicles Act, 1988 is a final proceeding, by reason whereof, the claimant who has been granted compensation under Section 163A, is debarred from proceeding with any further claims on the basis of fault liability in terms of Section 166. After considering the scheme envisaged by Section 163A of the Act, it is held in the said case that Parliament intended to lay down a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation. What is ruled therein is that the compensation determined and paid under Section 163A of the Act is final and not an interim one. What is ruled therein is that the compensation determined and paid under Section 163A of the Act is final and not an interim one. The clear proposition of law which emerges from the decision of this Court in Deepal G. Soni (supra), is that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. As explained by this Court in the said decision, a claimant, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both. 13. Applying the principle laid down in Deepal Soni (supra), to the facts of the case, it will have to be held that the respondents having obtained compensation, finally determined under Section 163A of the Act are precluded from proceeding further with the petition filed under Section 166 of the Act. The exception mentioned by the learned Single Judge in the impugned judgment that a petition under Section 166 of the Act can be proceeded further if it is filed before passing of an award passed under Section 163A of the Act is not supported by the scheme envisaged under Sections 163A and 166 of the Act and is contrary to the principle of law laid down by this Court in Deepal Soni's case. Therefore, this Court is of the opinion that the impugned judgment of the High Court upholding the order passed by the Tribunal to permit the respondents to proceed further with the petition filed under Section 166 of the Act cannot be sustained and will have to be set aside." 5. Now, so far as contention on behalf of the appellants that in view of the order passed by the learned Tribunal passed below Exh.34 allowing the said application submitted by the claimants and permitting the claimants to proceed further with the application under Section 166 of the Act is concerned. We have perused the order passed by the learned Tribunal below Exh.34. The order passed by the learned Tribunal passed below Exh.34 is absolutely contrary to the law laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra). We have perused the order passed by the learned Tribunal below Exh.34. The order passed by the learned Tribunal passed below Exh.34 is absolutely contrary to the law laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra). What is not observed and held by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), is observed and held by the learned Tribunal while passing order below Exh.34 and granting permission to the claimants to proceed further application under Section 166 of the Act. While passing the order below Exh.34 and granting permission to the claimants to pursue/proceed further with application under Section 166 of the Act, the learned Tribunal has observed that as law was not clear prior to the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra) and earlier, order under Section 163A of the Act was treated as interim compensation and therefore, the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), would not be applicable to the application filed prior to judgment and order passed in the case of Deepal Girishbhai Soni (supra). As stated above, as such similar order has been set aside by the Hon'ble Supreme Court in the case of Dhanbai Kanji Gadhvi & Ors. (supra). Even otherwise, it is required to be noted that while laying down the law in the case of Deepal Girishbhai Soni (supra), the Hon'ble Supreme Court has not observed that said decision would be applicable prospectively and/or law laid down by the Hon'ble Supreme Court in the said decision would not be applicable to the claim petition filed prior to the said decision. On the contrary, the Hon'ble Supreme Court has specifically observed, held and directed that order passed under Section 163A of the Act in the case of claimant of that case would be treated as interim compensation under Section 140 of the Act and the learned Tribunal was directed to proceed further with the claim petition under Section 166 of the Act and while passing such order, the Hon'ble Supreme Court has specifically observed that the said direction is issued in exercise of powers under Article 142 of the Constitution of India and same is not to be treated as precedent. Thus, Hon'ble Supreme Court was conscious of the aforesaid fact and therefore have observed that the said direction is under Article 142 of the Constitution of India and same is not to be treated as precedent. Therefore, the observations made by the learned Tribunal while passing order below Exh.34 that the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), would not be applicable to the claim petition filed prior to the said decision is contrary to the law laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), and as such it can be said that what is not observed and granted by the Hon'ble Supreme Court, the learned Tribunal has granted. Under the circumstances, as such the order passed by the learned Tribunal passed below Exh.34 is just contrary to the decision of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), as well as in the case of Dhanbai Kanji Gadhvi & Ors. (supra). 6. Similarly, even reliance placed upon the decision of the learned Single Judge rendered in FA No. 4078 of 2008 is concerned, the same being contrary to the law laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni (supra), as well as in the case of Dhanbai Kanji Gadhvi & Ors. (supra), the same shall not be of any assistance to the appellants. No reliance can be placed upon the decision which is just contrary to the law laid down by the Hon'ble Supreme Court. 7. Now, so far as submission on behalf of the claimants that the amount deposited in the FDR pursuant to the order passed below Exh.34 is intact and is lying with the Tribunal and therefore, to allow them to proceed further with the claim petition under Section 166 of the Act is concerned, the aforesaid cannot be accepted. It is required to be noted that only a part of the amount was ordered to be deposited in the FDR and claimants were permitted to withdraw in cash by account payee cheque 20% of the amount which had gone to the share of original claimant Nos. 3 and 4 to be paid to the original claimant No. 1 and even 35% of the amount gone to the shares of original claimant Nos. 3 and 4 to be paid to the original claimant No. 1 and even 35% of the amount gone to the shares of original claimant Nos. 1 and 2, in cash by account payee cheques which they have withdrawn and they have also withdrawn the interest on the aforesaid Fixed Deposits. Therefore, as such the order passed by the learned Tribunal granting compensation under Section 163A of the Act has been acted upon and implemented and even claimants have also got benefit of the order passed under Section 163A of the Act. Under the circumstances, prayer of appellants to permit them to pursue their claim petition under Section 166 of the Act and to direct learned Tribunal to decide their claim petition under Section 166 of the Act, cannot be accepted, more particularly, in light of the aforesaid two decisions of the Hon'ble Supreme Court. In view of the above and for the reasons stated above, appeal fails and same deserves to be dismissed and is accordingly dismissed.